England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		9th July 2003

Wednesday, 9th July 2003

1. MR JUSTICE MACKAY: This claim, brought with the permission of Goldring J following a refusal on paper by Collins J, raises, not for the first time, conflict between the desire for administrative certainty in a regulatory system (in this case the scheme of the Immigration and Asylum Appeals (Procedure) Rules 2000) and flexibility so as to do individual justice in a particular case.
2. The background is this. The claimant is a Somali who arrived in this country in August 2001 and claimed asylum, which was refused. He took that refusal to an adjudicator, who dismissed his appeal on 19th August 2002. At the hearing before the adjudicator he was represented by counsel instructed by a firm of solicitors called Annon & Co. On a date which is unclear, but probably was around 3rd or 4th September 2002, and so within, but only just within, the time limits allowed by the rules, Annon & Co appeared to have lodged grounds of appeal against the adjudicator's decision at the Immigration Appeal Tribunal ("IAT"). Those grounds were settled by counsel who had represented the claimant before, and I will call them Mr Khan's grounds.
3. On 5th September the Hammersmith and Fulham Community Law Centre (whom I will call "the Law Centre") sent other grounds of appeal as well as a formal notice in the prescribed form. The letter baldly opened with these words: "We now enclose as follows: 1. Application for leave to appeal", et cetera. Those grounds of appeal were settled by Mr Bazini, who has appeared for the claimant today, and I will call them Mr Bazini's grounds.
4. The application for leave was signed by Ms Surinder Matharu who, from the notepaper, seems to be a solicitor working for the Law Centre, and she signed the prescribed application for leave to appeal, Form 1A, as "representative" of the appellant; a word that has a particular meaning as will be seen.
5. On 4th October, in a letter written on 1st October, the IAT sent to the Law Centre a covering letter together with a determination of the application indicating that the application for leave to appeal had been refused. Whether they also sent that letter to Annon & Co is not known, but it was plain to the recipient that the grounds which the Vice President attached to his order, and which he had considered, were Mr Khan's grounds.
6. On 8th October, the Law Centre, having had some telephone conversation with the office of the IAT, wrote:

"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.

7. What therefore seems to have happened in this case is as follows.

(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?".

8. I should now turn to the relevant rules found in the Immigration and Asylum Appeals (Procedure) Rules 2000. Rule 18(4):

"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."

Rule 19:

"(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."

Rule 35:

"(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."

9. I was taken by Mr O'Connor to the predecessors of these the modern rules. In 1993 the Rules, interestingly, had no provisions at all for representation, but in 1996 an equivalent of the modern rule 18 made its appearance. The last four subrules of rule 35 appeared for the first time as a block in the 2000 Rules.
10. The claimant's contention is that when Annon & Co applied for leave they had in fact no authority from him to do so. Their application was therefore invalid or a nullity, the two ways in which Mr Bazini described it today, and therefore the IAT had no power as a matter of law to base any ruling on the grounds they submitted. He says, therefore, that the decision of 4th October should be quashed as being itself a nullity and the IAT asked to reconsider afresh his, Mr Bazini's, grounds.
11. As a matter of fact, I am also urged by the claimant, I should look at what happened and ask this question: "As at 23rd September, when the Vice President considered this matter, did the Tribunal, as a body, still believe or consider that Annon & Co were the representative of this claimant?". He points to the fact that whether or not they also replied to Annon & Co, the Tribunal sent out its determination to the Law Centre, and this, he says, shows that they did not believe that Annon & Co were the representative at this time, the time of that letter's creation being 1st October. Therefore, he says had they been told, as they were told, that the grounds on which they had ruled had been lodged by someone acting without authority, they should at the very least have exercised their discretion to consider Mr Bazini's grounds either instead of or perhaps even as well as Mr Khan's grounds. The power to consider more than one set of grounds is at least implicit in rule 18(6), which says that they are not bound to do so, therefore importing that they are entitled to do so if they think fit. Merely to refuse to do so on the grounds that the matter was closed, as the IAT said, demonstrates that they are refusing to exercise any discretion in this case.
12. The defendants say that the claimant's primary argument construes the word "representative" as meaning anyone whom the appellant wants to be his representative at any given time and is therefore a status capable of changing from day to day without any notice to the Tribunal. Having considered one application by one representative, the Tribunal can then be asked by the appellant to consider another application by another representative, which might be in quite different terms.
13. The defendants point to the scheme that the Rules set out. Underlying these Rules, they argue, is something important for any tribunal, as for any court, to establish; a means by which it can know who it is dealing with and whether that is a person entitled to represent a party formally in its proceedings. Hence the scheme for the representative going as it might be called "on the record", though this is not a phrase used in the rules anywhere, for the first time under rule 35(6).
14. Once that is done, say the defendants, three things need to be done, and all three of them, to change the position. First, the old representative must notify the Tribunal that he is no longer acting. Secondly, the appellant must also notify the Tribunal that the old representative is no longer acting. Both those obligations are to be found in 35(4). In practice, both would be done in the same document. Third, the new representative must notify the Tribunal that he is acting under 35(6). Rule 35(5) looks at other problems and the different question of establishing to whom the Tribunal can send documents, orders and the like in such a way as to effect valid service on the appellant. It is thus of no direct application to my problem today, but is another valid reason for the existence and form of this scheme.
15. The defendants say that Annon & Co, for all the claimant's desire to instruct the Law Centre, remained his representatives for the purpose of his application, none of these three steps having been taken. The decision was therefore not an unlawful one and its refusal on 15th October to review the determination was also not unlawful because the determination itself was not something which was "wrongly made" and therefore rule 19 is not engaged.
16. Both sides have referred me to the Court of Appeal's decision in Ravichandran v Secretary of State for the Home Department [2000] Imm Ar 10, obviously an important case in this area and one which gives me guidance on the construction of these rules and the right approach to be adopted. Giving the judgment of the court, Lord Woolf MR said this:

"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."

17. Therefore, although the relevant requirements of rule 35 have the appearance of being mandatory requirements, at least judged merely from their language, I believe I should have regard primarily to the apparent intended consequences of these rules as I judge them to have been in the minds of those who enacted them. The defendants say this case demonstrates that these rules are central or "structural", to use Mr O'Connor's epithet, to the work of the IAT. Without compliance with them, the high volume of extremely important work that body does will be made at the least more difficult, and arguably impossible.
18. The claimant urges a more flexible and pragmatic view, at least towards the position in this case. Mr Bazini argues that all that the rules set out to achieve is that the individual appellant conveys in whatever way to the IAT the information that representative A is no longer acting for him and that representative B is. He says that is what actually happened here, and the means by which it happened was the Law Centre's letter of 5th September, the terms of which I have cited above. Though the rules envisage three steps in the notification process of change, which I have listed above, Mr Bazini argues that the would-be appellant does not have to comply with all three. He says any one of them will do and there was one of them complied with here. Alternatively, he says that the IAT on these facts actually received two sets of grounds within the time allowed, both sets being within time, had a discretion to consider both of them and passed over the opportunity to exercise that discretion at all and merely shut its eyes to the second set.
19. On any view this argument is finely balanced. I am, in the end, persuaded to the defendant's side of the line by reason of the arguments presented by the interested party as to the consequences of relaxing the necessary discipline of the regime set out in the rules in the way the claimant here contends for. The category of person, I remind myself, entitled to act as a "representative" in these appeals, while not unlimited or unrestricted, is very much wider than that class of persons permitted to act in, say, a magistrates' court, county court or indeed some other tribunals. The time limits are tight; the subject matter is human rights and sometimes life and death; the volume of work is high; the pressure of work fierce. If the court has no easy, recognisable and reliable criteria by reference to which it can answer the vital questions which will occur daily, namely "Is this person someone competent to act for this appellant?" and "Can the Tribunal serve documents, rulings or orders on the appellant via this person?," I believe it is not overstating the matter to say its work will become very much harder, and on occasions nearly impossible.
20. I find here there was no compliance with any of the three steps required by rule 35(4) and (6). There was certainly not compliance with all of them, and I am unable to construe the Law Centre's letter of 5th September as notification that it is acting in place of another representative. A simple comparison between the wording of that letter, which did nothing to draw to the attention of the reader that important fact, as against the next letter they wrote which did, suffices, in my judgment, to answer that question.
21. I do believe there has to be a compliance with all three requirements, but I also find there has not been a compliance with any one of them. It therefore follows that in my judgment the Tribunal was entitled to consider Mr Khan's grounds, which I find were the first it received, and it received them from a party hitherto established as the appellant's representative. It was entitled to treat those as valid grounds and to disregard as an irrelevance the grounds the Law Centre sent entirely.
22. The decision to refuse leave, therefore, it follows was not one which was "wrongly made" and there was no power under rule 19 to review it. There are therefore no grounds for judicial review of the IAT's actions and this claim must be dismissed.
23. I would like to thank both counsel for the excellence of their arguments before me today.
24. MR JUSTICE MACKAY: What follows from that?
25. MR O'CONNOR: We have no applications.
26. MR JUSTICE MACKAY: Do you have an application?
27. MR BAZINI: My Lord, I do, firstly in respect of an application for leave to appeal to the Court of Appeal. My Lord, as you say, this has been a difficult case.
28. MR JUSTICE MACKAY: If you are both right in saying, and I do not doubt it for a minute, that this point has not arisen before, and I am sure if it had you would have shown me any case there was on it, on the grounds that I think it an important point rather than I feel terribly uncertain of my decision, again I could be wrong about that, I think it is a case where you ought to have permission to appeal.
29. MR BAZINI: My Lord, I am grateful.
30. MR JUSTICE MACKAY: And a detailed assessment of your costs.
31. MR BAZINI: Thank you.
32. MR JUSTICE MACKAY: Thank you both.