England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MACKAY J)
CO/33/2003

		Royal Courts of Justice Strand, London, WC2A 2LL
		31 March 2004

Lord Justice Latham:

1. On the 9^th July 2003, Mackay J dismissed the appellant's application for judicial review of two decisions of the Immigration Appeal Tribunal. The first decision was the Tribunal's refusal on the 4^th October 2002 to grant the appellant leave to appeal against the determination of an adjudicator which dismissed his appeal against the refusal of the Secretary of State to grant him asylum. The second decision is the decision of the Tribunal by letter dated the 15^th October 2002 to uphold that decision on an application by the appellant for a review on the grounds that there had been an administrative or procedural error by the Tribunal. The issues which the judge considered to be of sufficient general importance to justify his grant of permission to appeal relate to the application of the provisions of the Immigration and Asylum Appeals (Procedure) Rules 2002 (the Rules) where there has been a change in representation for an appellate during the appellate process.
2. The appellant is a Somali who arrived in this country in August 2001 and claimed asylum, which was refused. He appealed to an adjudicator who dismissed his appeal on the 19^th August 2002. He was represented before the Adjudicator by counsel, Mr Khan, instructed by a firm of solicitors, Annon and Co. At some time, either on the 28^th or 29^th August, the appellant informed Annon & Co that he would be instructing other solicitors to act for him on his proposed appeal. Annon and Co had not heard from either the appellant or from any new solicitors by the end of the time limited for an appeal. Accordingly just within that time, presumably in order to protect the appellant's position, they lodged grounds of appeal on either the 3^rd or the 4^th September 2002, which had been settled by Mr Khan.
3. The appellant, had, in fact, by then instructed the Hammersmith and Fulham Community Law Centre (The Law Centre). They instructed Counsel Mr Bazini to settle grounds of appeal, which he did and which were faxed to the Immigration Appeal Tribunal on the 5^th September 2002. The covering letter, on the Law Centre's headed notepaper, identified the enclosures as being:

"i. Application for leave to appeal against the determination of a Special Adjudicator

ii. Grounds of appeal in support of application for leave.

iii. Determination appealed against;

iv. Further supporting documents."

4. On the 4^th October 2002, the Immigration Appeal Tribunal sent to the Law Centre the decision of the Vice-President of the Tribunal refusing leave to appeal. Appended to the determination were the grounds which had been considered by the Vice-President which were Mr Khan's grounds. It was clear that Mr Bazini's grounds had not been taken into consideration.
5. Appreciating that Mr Bazini's grounds had not been put before the Vice-President, the Law Centre applied for a review of the application under Rule 19(1) of the Rules, which provides:

"Where the Tribunal has refused an application for leave to appeal, the appellant may apply to the Tribunal to review its decision on the ground that it was wrongly made as a result of an administrative or procedural error by the Tribunal."

6. The basis of the application, which was set out in a letter of the 8^th October 2002, was that the fact that the Tribunal had had two grounds of appeal should have been identified, and the two grounds should have been put before the Vice-President. The failure to do so amounted to "an administrative or procedural error by the Tribunal". This application was refused by the Tribunal; the Clerk to the Tribunal in a letter of the 15^th October 2002, gave the reasons in the following terms:

"The Tribunal Chairman has directed me to inform you that the application for leave to appeal was considered by the Vice-President on the 23/09/02.

The only grounds of appeal before him were those supplied by Annon & Co. The grounds of appeal settled by Mr Bazini are not on the file.

The only letter on file from Hammersmith Law Centre is the letter of 5^th September 2002.

Decision Confirmed.

The matter is closed."

7. On the 25^th November 2002, the Law Centre wrote a more detailed letter setting out its concerns on behalf of the appellant. The first point it took was that the grounds submitted by Annon & Co had been submitted without authority and therefore should be considered null and void. The second point was that the covering letter of the 5^th September 2002 from the Law Centre had clearly identified the documents which were enclosed and included reference to the Grounds of Appeal. The fact that the Tribunal's decision was notified to the Law Centre made it abundantly plain that the letter had indeed been received, and had been accepted as appropriate notification of the fact that there had been a change of representative. But the Tribunal adhered to its decision. The Clerk wrote in a letter date the 9^th December 2002:

"I have to inform you that according to the evidence now before the Tribunal, the application to the Tribunal to review its decision and refuse leave to appeal was not submitted by 22 October 2002, the required date in accordance with the Procedural Rules.

The case must therefore be regarded as closed."

8. Apart from these facts, it is not clear precisely what happened. The judge concluded that the Law Centre's letter of the 5^th September did enclose Mr Bazini's grounds, and that these were not placed in the file eventually put before the Vice-President. Although the file has not been produced, we consider that the judge was clearly right to come to that conclusion; and indeed the Secretary of State does not suggest otherwise. The judge further concluded, as a matter of probability that Mr Bazini's grounds were not put in the file because Mr Khan's grounds were already there. There is no challenge to that finding. Whether that was indeed the reason why Mr Bazini's grounds were not put before the Vice-President is not, in my view, relevant to the issues which we have to decide. The fact is that Mr Khan's were the only grounds put before the Vice-President. What is clear is that the Tribunal took the letter from the Law Centre as notification that the Law Centre had now become the appellant's representative. We are told that the decision to accept the Law Centre in place of Annon & Co was taken on the 11^th September 2002. We have been provided with no documents other than those that I have referred to to elucidate the administrative procedures in this case; and apart from the fact that the Vice-President clearly had Mr Khan's grounds before him, we know nothing about what other documents were in the file.
9. The relevant rules, apart from Rule 19 to which I have already referred, are the following:

Rule 18(4) provides:

"An application for leave to appeal shall be made by serving upon the Tribunal the appropriate proscribed form, which shall–

(a) be signed by the appellant or his representative (if he has one);

.…

(6) The Tribunal shall not be required to consider any grounds other than those included in that application."

10. Rule 35 provides:

"(1) In any proceedings in an Appeal, a party may act in person or be represented –

(a) in the case of a person appealing against an immigration decision, by any person not prohibited by section 84;

…..

(2) A person representing a party may do anything relating to the proceedings that the person whom he represents is by these rules required or authorised to do.

….

(4) Where a representative referred to in (1) (a) (the first representative) ceases to act, he and the party he is representing shall forthwith notify the appellate authority and any other party of that fact and of the name and address of any new representative (if known).

(5) Until the appellate authority is notified that the first representative has ceased to act by either the first representative or the party he was representing, any document served on the first representative shall be deemed to be properly served on the party he was representing.

(6) Where a representative begins acting for a party to which these rules apply, he shall forthwith notify the appellate authority of that fact."

11. Mackay J accepted the argument for the Secretary of State that these rules provided a scheme which ensures that the Tribunal knows at any given time who is the representative of an appellant. If there is to be a change, then Rules 35(4) and (6) require the first representative and the appellant to notify the tribunal and any other party of the fact that the first representative has ceased to act and the new representative must immediately notify the Tribunal once he starts to act. Until those steps have been taken, the Tribunal was entitled in this case to treat the first representative, that is Annon & Co, as still acting on behalf of the appellant. Accordingly, the Tribunal was entitled to treat Mr Khan's grounds as being the only grounds it was "required to consider" under Rule 18(6). It followed that there was no obligation upon the Vice-President to consider Mr Bazini's grounds. Therefore there was no error of law which could justify the grant of Judicial Review nor was there any administrative or procedural error.
12. Mr Bazini on behalf of the appellant submits that this is too prescriptive an approach to the effect of the Rules. He has referred us to the decision of this court in Ravichandran –v- SSHD [2000] 1 WLR 354. He has referred us in particular to the passage in the judgment of Lord Woolf MR where he said at page 358 E:

"The conventional approach when there has been non-compliance with a procedural requirement laid down by a statute or regulation is to consider whether the requirement which was not complied with should be categorised as directory or mandatory. If it is categorised as directory it is usually assumed it can be safely ignored. If it is categorised as mandatory then it is usually assumed the defect cannot be remedied and has the effect of rendering subsequent events dependant on the requirement a nullity or void or as being made without jurisdiction and of no effect. The position is more complex than this and this approach distracts attention from the important question of what the legislator should be judged to have intended should be the consequence of the non-compliance. This has to be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance. In the majority of cases it provides limited, if any assistance to enquire whether the requirement is mandatory or directory. The requirement is never intended to be optional if a word such as "shall" or "must" is used.

…….

In the majority of cases, whether the requirement is categorised as directory or mandatory, the tribunal before whom the defect is properly raised has the task of determining what are to be the consequences of failing to comply with the requirement in the context of all the facts and circumstances of the case in which the issue arises. In such a situation the Tribunal's task will be to seek to do what is just in all the circumstances

……

It must be remembered that procedural requirements are designed to further the interests of justice and any consequence which achieve a result contrary to those interests should be treated with considerable reservation."

13. He submits, that the application made by Annon & Co was made without authority and was therefore null and void and that in all the circumstances, it must have been clear to the Tribunal that Mr Khan's grounds had been superseded by those which he had drafted on the instructions of the Law Centre. The failure of the Vice-President to consider his grounds therefore amounted to an error of law. Alternatively, he submits that, at the least, his grounds should have been put before the Vice-President for him to determine whether or not to exercise a discretion to consider those grounds notwithstanding the provisions of Rule 18(6). In any event, he submits, the history shows that there was an administrative or procedural error in that the grounds were not put before the Vice-President and that the Tribunal's decision to uphold the refusal of leave on the application for a review under Rule 19(1) was accordingly wrong.
14. It seems to me to be very important in evaluating the rival arguments in this case to remember the context in which these rules have to operate. On the one hand, the would be immigrants or asylum seekers are unlikely to be familiar with English and the procedures of tribunals, as was recognised by Lord Woolf in Ravinchandran at page 366. That is indeed reflected in the power to deal with irregularities which are contained in Rule 49 of the Rules. The objective must be to ensure that technicalities do not interfere with the Tribunal's responsibility to determine the merits of the appeals before it. But on the other hand, the administration of any court or tribunal system is crucially dependent upon ensuring that the identity of a representative, if a party to the proceedings has a representative, is clearly identifiable. It follows that provisions such as those contained in Rule 35(4) and (6) are the minimum requirements to secure that objective. Furthermore, it is notorious that one of the problems inherent in the appellate system is delay. And this is particularly relevant in the jurisdiction with which we are concerned, where delay on the part of an appellant can be an objective in itself. There is no doubt that Rule 18(6) was intended, in part, to ensure that where grounds of appeal had been submitted in apparently proper form and by either the party or an appropriate representative the Tribunal could immediately proceed to deal with the application on the basis of those grounds. It was also intended to put an end to the practice of submitting what might be described as holding grounds, indicating that full grounds would follow.
15. We have been referred to two decisions at first instance where these considerations played a part in the court's determination of issues similar to the ones with which we are concerned. In R (Hossein) –v- IAT [2003] EWHC 2556 (Admin), Collins J considered an application for Judicial Review in a case where the applicant himself had submitted grounds of appeal which were full and detailed. It was said that grounds were also submitted by counsel on his behalf. However, there was no record of the Tribunal having received those grounds. Applying Rule 18(6) Collins J held that the Tribunal was perfectly entitled to deal with the applicant's own application, and that even if it was an error on the Tribunal's part that counsel's grounds went missing, that did not mean that the Tribunal made an error of law in dealing simply with the applicant's own grounds. He went on as follows at para 31:

"Having said that, I do not doubt that if it had been received and if it had been married up with the existing application which had just come in, then both would have been put before the Vice-President and he would have considered both. There is no reason why that should not happen if it transpires that both come in, perhaps, within a matter of minutes or even hours, of each other. All I am deciding is that there is no obligation upon the Tribunal to consider more than one application."

16. In R (Kalombo) –v- IAT [2004] EWHC 353 (Admin), Sullivan J applied the reasoning of Collins J to a situation where the tribunal had again received grounds from the applicant himself, and from counsel; in that case, although the Tribunal had received counsel's grounds, they were not considered by the member of the Tribunal who refused to grant permission to appeal. Sullivan J held that the Tribunal was under no obligation, one complete appeal form having been received, to consider the second appeal form, and its accompanying grounds.
17. Mr McCullough submits, on behalf of the Secretary of State, that these two decisions were rightly decided, and if so, the same principle should be applied to the facts of the present case. The grounds received from Annon & Co were, at the time they were received, apparently submitted by the appellant's representative, and were therefore grounds for the purposes of Rule 18(4). The Vice-President was entitled to treat those grounds as the only grounds that he was required to consider under Rule 18(6).
18. Mr McCullough's submission in this respect depends upon an analysis of the effect of Rules 35(4) and (6). I cannot accept Mr Bazini's submission that Annon & Co ceased to be the appellant's representative for the purpose of the Rules the moment that he withdrew instructions. Annon & Co had been his representatives throughout the proceedings. Until such time as he notified the appellate authorities and any other party that he had withdrawn his instructions, they continued to have ostensible authority to act on his behalf. It follows that the application for leave to appeal made on the appellant's behalf by them was an effective application for the purposes of Rule 18(4). The Vice-President would therefore have been entitled to treat the application by Annon & Co, supported by Mr Khan's grounds, as the application with which he had to deal.
19. But that is not how the matter progressed. By accepting the Law Centre as the appellant's representative, which it is accepted the Tribunal did, the Tribunal waived any requirement to comply strictly with Rule 35(4) and (6). In those circumstances, it seems to me that it was a necessary corollary that the Vice-President should have been provided with Mr Bazini's grounds for the Vice-President to determine how he should deal with them. Rule 18(6) is not an exclusionary rule. It does not prevent the Tribunal from considering other grounds. Having accepted the Law Centre as the appellant's representative, it seems to me that the existence of these further grounds was a relevant consideration for the Vice-President. It was for him to decide, in the circumstances, whether or not to exercise his discretion to consider these further grounds. None of the important administrative and policy reasons for Rule 18(6) was apparently infringed. The grounds had been submitted within time and were available before any decision was taken. Further, good administrative practice, as identified by Collins J, clearly militated in favour of the Vice-President being provided with both sets of grounds. It seems to me that that was the proper course to take, whether the failure to submit the grounds was the result of any deliberate decision by the administration or not.
20. Although Mr McCullough originally submitted that we should have regard to the merits of the appellant's application for leave to appeal, he did not, in the end, suggest that we should exercise our discretion to decline relief to the appellant on the basis that he had, in any event, no real prospect of success. I consider that justice requires that the matter be remitted to the Tribunal for the application for leave to appeal to be considered afresh, in the light of the fact that the Law Centre had submitted Mr Bazini's grounds on behalf of the appellant. That does not require the Tribunal to consider those grounds: for the reasons I have given, the application by Annon & Co and Mr Khan's grounds remain grounds upon which the Tribunal would be entitled to exercise its power under Regulation 18(6) to restrict its considerations to them. But the Tribunal should have the opportunity to determine whether or not to exercise its discretion to consider Mr Bazini's grounds on the basis that the Tribunal had by then accepted the Law Centre as the appellant's representative. I would accordingly allow the appeal.

Lord Justice Thomas: I agree.

Lord Justice Pill:

21. I agree that important administrative and policy reasons motivate the strictness of Rules 18(4) and (6) of the Immigration and Asylum Appeals (Procedure) Rules 2002 ("the 2002 Rules") set out by Latham LJ in his judgment. I also agree with Latham LJ (paragraph 19) that those reasons have not been infringed by the appellant's conduct in this case. I do not doubt that, on the facts of those cases, Collins J in R (Hossein) v IAT [2003] EWHC 2556 (Admin) and Sullivan J in R (Kalombo) v IAT [2004] EWHC 353 (Admin) were justified in concluding that the IAT was under no obligation to consider a second appeal form.
22. On the point at issue in the present appeal the material facts, some of which were formerly in issue, are:

(a) The appellant withdrew his instructions from Annon and Co on 28^th or 29^th August 2002.

(b) That notwithstanding, Annon and Co, purportedly on his behalf, submitted, on 4^th September, an application for leave to appeal to the IAT, with grounds.

(c) On the following day, 5^th September, the Hammersmith and Fulham Community Law Centre ("the Law Centre"), who had been instructed by the appellant, submitted on his behalf, an application for leave to appeal, with grounds.

(d) No enquiries have been made of Annon and Co but there is no evidence before the Court that they complied with their obligation under Rule 35(4) to notify the IAT that they had ceased to act.

(e) While the IAT may have been entitled to work on the basis that Annon and Co were still acting for the appellant, they accepted the letter of 5^th September from the Law Centre as notification that the Law Centre had become the appellant's representatives. That decision was taken on 11^th September, as is now accepted.

(f) The application for leave to appeal was considered by the Vice-President on 23rd September, the only grounds before him being those submitted by Annon and Co.

(g) The determination, refusing leave, was notified on 4^th October.

23. On those particular facts, the IAT were not in my judgment entitled to fail to consider the grounds of appeal submitted by the Law Centre. Once they accepted that the Law Centre, which had submitted grounds of appeal, represented the appellant, and they did so well before the determination, an obligation to submit the grounds to the decision-maker arose and an obligation on the decision-maker to consider them also arose.
24. Lord Woolf MR stated in Ravichandran v SSHD [2000] 1 WLR 354, at 359, as cited by Latham LJ: "It must be remembered that procedural requirements are designed to further the interests of justice." Acceptance that the Law Centre, and not Annon and Co, were the appellant's representatives, involved acceptance that, of the grounds which had been received on consecutive days, it was the Law Centre's that the IAT were obliged to consider. The validity of the Law Centre's application was thereby accepted and any entitlement to treat Annon and Co as the representatives, and their application as the only valid one, disappeared. To rely on Rule 18(6) or Rule 35(4) to defeat the Law Centre's application would, in my view on the facts of this case, be to subvert the requirement for orderly procedures by and before the Tribunal. Neither sub-rule can operate against the appellant when the Tribunal know that the Law Centre are the representatives and have accepted them as such.
25. It should be added in fairness to the Vice-President that he did not see the Law Centre's grounds and to Annon and Co that enquiries have not been made as to whether they complied with their obligation under Rule 35(4). The IAT file has not been available to the Court. I would question whether the Annon and Co application was ever a valid application under Rule 18(4)(a), as one signed by the party's "representative", but do not find it necessary to resolve that question having reached the conclusion already expressed.
26. If I am wrong in that conclusion, and the Vice-President has a discretion not to consider the Law Centre's grounds, I think it inconceivable that he would exercise his discretion against doing so.
27. As to the merits of the grounds, Mackay J stated that he was convinced that he should not be drawn into the question whether the Law Centre's grounds would have made any difference in the result. When the Court indicated that it saw much force in that approach, Mr McCullough, for the Secretary of State, did not pursue his application that this Court should consider the merits.
28. I would allow the appeal on the basis I have stated.