QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF AHMED||(CLAIMANT)|
|IMMIGRATION APPEAL TRIBUNAL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR A O'CONNOR (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
Crown Copyright ©
Wednesday, 9th July 2003
"We confirm that we have been instructed to take over the conduct of our clients immigration matter from his previous solicitors Annon & Co Solicitors on 28th August 2002.
We therefore completed and lodged our client's notice of appeal together with the grounds by fax on 5th September 2002 and sent the hard copy by post to you. We are on record as his acting solicitors."
They go on to say that their client had been told by the previous solicitors that they could not appeal on his behalf and that he did not at any time after instructing the Law Centre on 28th August authorise the previous solicitors to lodge any appeal on their behalf. They therefore requested a review of their client's application. On 15th October they received this answer from the IAT, from the Chairman indeed of the Tribunal:
"... the application for leave to appeal was considered by the Vice President on 23/9/02.
- 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 5th September 2002.
- Decision confirmed.
- The matter is closed."
A longer letter was written on 25th November by the Law Centre, again requesting a review, enclosing witness statements from the claimant and from a member of the Somali community who had been helping him with his appeal, but to no avail.
(1) Annon & Co had been told by the claimant some time before 3rd September, probably on about 28th or 29th August, that he was instructing other solicitors to act for him in his appeal.
(2) Annon & Co, sensing, I suspect, that the time for appeal was running out, sent Mr Khan's grounds to the IAT together with an application for leave on or about 4th September. Though the covering letter has not survived, the grounds must have been included in the file that was built and then put into the process under which it finished up before the Vice President.
(3) Annon & Co at no stage told the IAT under rule 35(4) (as to which see below) that they were no longer acting, and nor did the claimant do so.
(4) The Law Centre, in their letter of 5th September, did not in terms notify the IAT that they were a representative "beginning to act" to use the words of the rules. The contention made in the letter of 25th November that their letter of 5th September "clearly stated that we had been instructed to act ... in place of his previous representatives" is simply not right; nor is it even implicit in that letter. The opening words "We now enclose ..." suggest, rather, the continuation of some previous dealings between the Law Centre and the Tribunal.
(5) The Law Centre's letter of 5th September did enclose Mr Bazini's grounds, and this is confirmed by the fax reports which I have seen.
(6) Mr Bazini's grounds were not placed in the file eventually put before the Vice President. This was probably, in my judgment, because whoever had the task of doing that would have seen that there were grounds there already from a purported representative and would therefore have discarded Mr Bazini's grounds.
(7) The decision having been taken, it was notified to the Law Centre. The decision was based, as it said, on Mr Khan's grounds. Whether notification was also sent to Annon & Co is not established.
(8) So far as relevant, a comparison of Mr Khan's and Mr Bazini's grounds leads to the initial conclusion that the latter are fuller and better argued than the former, which is not to say that either enjoyed any real prospect of success. I am convinced that it will not assist the central task that I have to perform today to allow myself to be drawn into answering the intriguing question: "Would it have made any difference anyway?".
"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."
"(1) 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."
"(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 paragraph (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 documents 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."
"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 dependent 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."
A little further on he added:
"Because of what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity it is to be hoped that provisions intended to have this effect will be few and far between. 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 ..."
Further on he added the useful reminder, which I must have before me in considering this case:
"It must be remembered that procedural requirements are designed to further the interests of justice and any consequence which would achieve a result contrary to those interests should be treated with considerable reservation."