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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Rahmani and Others v. Diggines [1986] UKHL 12 (20 March 1986)
URL: http://www.bailii.org/uk/cases/UKHL/1986/12.html
Cite as: [1986] 2 WLR 530, [1986] UKHL 12, [1986] 1 All ER 921, [1986] 1 AC 475, [1986] Imm AR 195
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Rahmani and others v Diggines
HOUSE OF LORDS
Hearing Date: 16 DECEMBER 1985, 20 MARCH 1986
20 March 1986
Index Terms:
Immigration -- Appeal -- Immigration adjudicator -- Jurisdiction to dispense with oral hearing -- Conditions to be satisfied -- No party to appeal requesting hearing -- Applicants instructing Immigrants Advisory Service to lodge appeal and request oral hearing -- Advisory service failing to record applicants' change of address and unable to notify them of hearing date -- Advisory service inviting adjudicator to dispense with oral hearing -- Adjudicator dismissing appeal without hearing -- Whether adjudicator entitled to dismiss appeal without hearing -- Immigration Appeals (Procedure) Rules 1972, r 12.
Held:
The three applicants were a mother and her two children who were Iranian citizens. Their request for an extension of their leave to enter the United Kingdom had been refused by the Home Secretary and they wished to exercise their right of appeal to an adjudicator. The mother accordingly consulted the Immigrants Advisory Service, which lodged an appeal on their behalf. The notice of appeal stated that they wished to have an oral hearing and to call witnesses. Subsequently the mother notified the advisory service of a change of address but the advisory service failed to record the new address, with the result that when the date for hearing was fixed they were unable to trace her and when the appeal came on for hearing they invited the adjudicator to dispense with an oral hearing and decide the appeal on the papers. The adjudicator dismissed the appeal without a hearing in purported exercise of his power under r 12 of the Immigration Appeals (Procedure) Rules 1972 to determine an appeal without a hearing when 'no party to the appeal has requested a hearing'. The applicants applied for and were granted certiorari to quash the adjudicator's decision on the ground that he had breached the rules of natural justice in dismissing the appeal without a hearing. The Court of Appeal affirmed the decision and the adjudicator appealed to the House of Lords. Held -- The adjudicator had no jurisdiction under r 12 of the 1972 rules to determine the applicants' appeal without a hearing since the applicants had not withdrawn their instructions from the advisory service to act for them in the appeal and the adjudicator had no reason to be satisfied that they had done so. Accordingly, the appeal would be dismissed. Decision of the Court of Appeal sub nom R v Diggines, ex p Rahmani [1985] 1 All ER 1073 affirmed on other grounds.Notes:
For procedure on appeals to an adjudicator or tribunal at first instance, see 4 Halsbury's Laws (4th edn) para 1024. For the Immigration Appeals (Procedure) Rules 1972, r 12, see 4 Halsbury's Statutory Instruments (4th reissue) 30.Introduction:
Appeal C E Diggines, an adjudicator under the Immigration Act 1971, appealed with leave of the Appeal Committee of the House of Lords granted on 21 February 1985 against the decision of the Court of Appeal (Stephenson, Fox and Purchas LJJ) ([1985] 1 All ER 1073, [1985] QB 1109) on 20 December 1984 dismissing the adjudicator's appeal from the judgment of Taylor J dated 16 June 1983 whereby he allowed the applications of Mahnaz Rahmani, Koorosh Saroui and Katayon Saroui for judicial review of the determination of the adjudicator dated 16 December 1981 dismissing without oral hearing the applicants' appeal against the Secretary of State's refusal to extend their leave to stay in the United Kingdom and issued certiorari to quash the determination and mandamus directing the adjudicator to rehear the applicants appeal by way of oral hearing. The facts are set out in the opinion of Lord Scarman.Counsel:
Andrew Collins QC and John Laws for the adjudicator. Sir Charles Fletcher-Cooke QC and George Warr for the applicants.Judgment-READ:
Their Lordships took time for consideration. 20 March. The following opinions were delivered. PANEL: LORD SCARMAN, LORD ELWYN-JONES, LORD ROSKILL, LORD TEMPLEMAN AND LORD MACKAY OF CLASHFERNJudgment One:
LORD SCARMAN. My Lords, the appellant in your Lordships' House is an adjudicator appointed to hear the appeals under Pt II of the Immigration Act 1971. The respondents to his appeal are three immigrants, Mrs Rahmani from Iran and her two sons, who had appealed to him from a decision of the Secretary of State refusing them leave to extend their stay in the United Kingdom. The adjudicator dismissed their appeals. He did so without affording them a hearing in purported exercise of a power conferred on him by r 12 of the Immigration Appeals (Procedure) Rules 1972, SI 1972/1684. As soon as Mrs Rahmani learnt of his decision to dismiss their appeals, she applied on behalf of herself and her two boys for judicial review of the adjudicator's decision. Her ground was that by dismissing their appeals without a hearing the adjudicator had infringed a rule of natural justice. Taylor J found in her favour and quashed the adjudicator's decision. The adjudicator's appeal to the Court of Appeal was dismissed (see [1985] 1 All ER 1073, [1985] QB 1109). Now with the leave of the House the adjudicator has appealed to the House. It is a strange case. The judge held that the facts met the conditions of r 12, that is to say that it was within the adjudicator's power to determine the appeals without a hearing, but that the court could quash his dismissal of the appeals on the ground that, though the case met the conditions laid down by the rule, the determination of these appeals without a hearing infringed a rule of natural justice, in that the immigrants had requested a hearing but were denied it by the course which the adjudicator took. The judge added that there was no fault or error on the part of the adjudicator in exercising the power conferred on him by the rule but, unknown to him and without any fault of Mrs Rahmani, the result of his action was to deny her and her two sons a hearing of their appeal. Accordingly, he quashed the adjudicator's decision. The Court of Appeal upheld the judge, on the same ground, i e that, although there was no error on the part of the adjudicator in holding that r 12 covered the case, the immigrants through no fault of their own had by his exercise of the r 12 power to dispense with a hearing suffered an infringement of the rule of natural justice. The principle which both courts accepted is, if good law, of very great importance: it is that a decision of a public authority, which is within the power conferred by statute and has been reached without procedural impropriety or irregularity on its part, can, nevertheless, be quashed on judicial review if the exercise of the power has in the circumstances resulted in an infringement of a rule of natural justice. Because of the importance of the point the House gave leave to appeal. However, as a recital of the facts will show and as I understand your Lordships unanimously accept, the point does not arise. The truth is that the conditions which r 12 requires to be met to enable an appellate authority to determine an appeal without a hearing were not met in this case. The adjudicator erred in law in acting on the assumption that the rule applied. His decision to dismiss the appeals may, therefore, be quashed on this simple ground. However, the parties and the two courts below proceeded on the basis that r 12 did apply. At the outset of the hearing before your Lordships it became obvious that there must be a serious doubt as to the applicability of r 12 to this case. Your Lordships raised the point with counsel for the adjudicator who very fairly said at once that, if your Lordships should be disposed to the view that r 12 does not apply in this case, he would not argue for the contrary view. He had come to argue the question of principle. Counsel for the immigrants was equally eager to argue the question of principle but left the matter in your Lordships' hands. Thereupon and with the assistance of counsel, your Lordships examined the terms of the rule and the facts of the case and considered that in the circumstances the rule did not apply. Your Lordships have not, therefore, considered, nor have they heard argument on, the point of principle which was the ground of decision in both courts below. Accordingly, I express no opinion on the point. I must not be understood to have indicated even a provisional view on the soundness or otherwise of the alleged principle. Indeed, it would be dangerous, in my view, to discuss the point save in a case where the circumstances and the facts require it to be decided. The facts The applicants come from Iran. On 25 September 1979 they were granted leave to enter, and stay for a period in the United Kingdom to enable Mrs Rahmani to study the English language at the Wimbledon Language Centre. Their leave was later extended to 25 September 1980. On 16 September 1980 Mrs Rahmani on behalf of herself and her two boys applied for a further extension of leave, giving as her ground not that she intended to continue her studies (though the judge did not doubt that such was her intention) but that she wished to stay so that she might look after the two boys for whom she had arranged schooling in the United Kingdom. It was, of course, a serious omission on her part not to mention that she had made arrangements to continue her own studies. Consistently with his normal policy, the Secretary of State refused leave on the ground that there is no provision in the Immigration Rules entitling a person subject to immigration control to an extension of leave for the only purpose specified in her application, namely that of caring for the children while at school in the United Kingdom. Nobody can be sure what his decision would have been had he been told that she intended to continue her studies: but on that ground, had he seen fit, he could properly have extended their leave to stay in the United Kingdom. By notices in writing dated 11 November 1980 the Secretary of State gave notice of his refusal to extend their leave. The notices informed them that they had a right of appeal to an adjudicator and that they might, if they wished, seek advice from the United Kingdom Immigrants Advisory Service (the service). The service is a voluntary organisation independent of the government but recognised by statute and funded by grant from public resources (s 23 of the 1971 Act) to enable it to represent immigrants who wish to exercise a right of appeal under Pt II of the 1971 Act. It was described to the applicants in the notice of refusal as follows:'The United Kingdom Immigrants Advisory Service, a voluntary organisation independent of the Government, will advise you, if you wish, about the decision which has been taken against you and on whether to exercise your right of appeal. If you decide to appeal, the Service can also help you to prepare your appeal and to present it to the appellate authorities. These services are provided free of charge.'
Mrs Rahmani sought advice from the service. She told Mr Moss, one of its counsellors, that she had enrolled for a further course of study in the United Kingdom and she instructed him to act for herself and her children in an appeal to the adjudicator. Mr Moss duly gave notice of appeal on 12 November 1980. The notice of appeal was in the form prescribed by the rules. It gave notice of, inter alia, four matters, which are of significance in determining this appeal. First, it indicated that detailed grounds of appeal would follow after consultation with the service second, it informed the adjudicator that the service was the authorised representative of the three immigrants for the purposes of the appeals and third, it included a request for an oral hearing of the appeals at which it was intended to call witnesses. Fourth, notice was given that 26 Kingsley Road, Wimbledon, London SW19 was the address in the United Kingdom of the three immigrants. At some time after 12 November 1980 Mrs Rahmani moved with her children from Kingsley Road to a new address, that of her mother, namely 53 Alexandra Road, Wimbledon, London SW19. In December 1980 Mrs Rahmani informed Mr Moss of the change of address. Mr Moss does not challenge her statement that she told him and he recognised that it must have been his fault that no note of the change of address was made in the service's file. He did tell her in November or December 1980 that it would be at least another nine months before the appeals would be heard and that, if he required any further evidence, he would get in touch with her. Thus, it was for him to advise her if anything further was needed from her, and not for her to initiate any inquiry about progress. Nothing further happened until by letter dated 2 October 1981 the clerk to the adjudicator gave notice to the service that the appeal would be heard on 26 November 1981. On 13 October 1981 an immigration counsellor of the service, to whom Mr Moss had delegated the conduct of the case, wrote to Mrs Rahmani addressing his letter to her at 26 Kingsley Road in this letter he gave the date for hearing and requested her to make an appointment to discuss the appeal. The letter was returned 'not known at this address'. As already mentioned, the service file contained no note of her new address at Alexandra Road, an omission for which Mr Moss has honourably accepted personal responsibility. Unable to trace her, the counsellor on 9 November 1981 replied to the clerk to the adjudicator in a letter, the terms of which I set out in full:'Appeal of Mahnaz Rahmani & 2 others
With regard to the above appeal set down for hearing on 26 November I wrote to [Mrs Rahmani] at her last known address at 26 Kingsley Road, Wimbledon, London S.W.19 but the said letter has been returned to us with the remarks ''Not known at this address.'' Since we have no further instructions from [the applicants] and no knowledge about their present whereabouts may I request the Adjudicator to decide this case in such manner as he may deem it to be proper. xf[signed] Yours faithfully,[signed] A. R. Chakrabortty Immigration Counsellor.' I would comment, in passing, that Mrs Rahmani had never withdrawn instructions from the service, that she had notified the service of their change of address and that she had never instructed the service to inform the adjudicator that he could dispense with an oral hearing of the appeal. The adjudicator on receipt of the letter decided to exercise the power, conferred on him by r 12 of the 1972 rules, to determine the appeals without a hearing. He disposed of the appeal in this way on 16 December 1981. Notice of his determination and his reasons was communicated by letter and written statement of that date addressed to the immigration counsellor of the service who had requested in the letter of 9 November that the adjudicator 'decide this case in such manner as he may deem it to be proper'. None of these developments was known to Mrs Rahmani. The last that she had heard was when Mr Moss in November or December 1980 had told her to expect a nine-month delay. By March 1982 she had become apprehensive. She therefore went to see Mr Moss on 11 March 1982. She then learned to her dismay that the appeals had been determined against her and her sons without oral hearing and in the absence of herself and their duly authorised representative, the service. She also learned from him that the adjudicator so acted with the assent and at the request of the service, her representative. Mr Moss explained to her that no note had been retained on the file of the Alexandra Road address and that attempts to discover where she had gone on leaving Kingsley Road had failed. He was immensely apologetic and immediately set about the task of seeking to persuade the Home Office to relent but the department was adamant, and Mrs Rahmani with her children faced the threat of deportation. She, therefore, sought judicial review of the adjudicator's decision. It is clear from this summary of the facts that the adjudicator dismissed the appeals without any information or evidence that it was the case for the appellants that Mrs Rahmani wished to extend their stay in the United Kingdom so that she might continue to their conclusion the studies for which in the past she had been granted leave to stay. It is clearly possible, though not of course certain, that, had the adjudicator heard her case and accepted her evidence, he might have allowed the appeals on that ground, which is a recognised ground for extending leave to stay. The rules The 1972 rules were made in November of that year and came into operation on 1 January 1973. They lay down the procedure to be followed in appeals to an adjudicator or to the Immigration Appeal Tribunal at first instance, and also in appeals to the tribunal from an adjudicator. When an appeal is to an adjudicator against a refusal by the Secretary of State to extend leave to stay in the United Kingdom, notice of appeal has to be given to the Secretary of State whose duty it then is to refer the appeal to the adjudicator: see r 6(1) and (2). Rule 26(1) provides for representation of parties in proceedings on appeal. An appellant may be represented and may appear by a person appointed in that behalf by any voluntary organisation in receipt of a grant under s 23 of the 1971 Act the service is such an organisation. Rule 26(2) provides:'A person representing a party to an appeal in accordance with paragraph (1) above may take all such steps and do all such things relating to the proceedings as the person whom he represents is by these Rules required or authorised to take or do.'
Rule 28 provides that an appellate authority shall give to each party to an appeal an opportunity to address the authority, to give evidence, to call witnesses and to cross-examine. Rule 34 enables an appellate authority in certain circumstances to hear an appeal in the absence of the appellant but the rule does not dispense with the necessity of a hearing. Rule 44 provides that notices or other documents may be sent to a party's representative. Rule 12 is the rule, the only rule, which empowers an adjudicator to determine an appeal from the Secretary of State without a hearing. It is in these terms:'An appellate authority may determine an appeal without a hearing if--(a) no party to the appeal has requested a hearing or (b) the appellate authority has decided, after giving every other party to the appeal an opportunity of replying to any representations submitted in writing by or on behalf of the appellant, to allow the appeal or (c) the appellate authority is satisfied that the appellant is outside the United Kingdom or that it is impracticable to give him notice of a hearing and, in either case, that no person is authorised to represent him at a hearing or (d ) the appellate authority is satisfied that no matter arises on the appeal other than an objection by the appellant to removal to a particular country or territory or a claim by him that he ought to be removed (if at all) to a different country or territory and is of opinion that matters put forward in support of the appeal in pursuance of Rule 9 do not warrant a hearing or (e) such a preliminary issue as is referred to in Rule 11 arises and the appellate authority has afforded the appellant a reasonable opportunity to submit a statement in writing of matters put forward in rebuttal of the respondent's allegation, and--(i) the appellant has not submitted such a statement, or (ii) the appellate authority is of the opinion that matters put forward by the appellant in such a statement do not warrant a hearing.'
The question for the House is therefore: do the facts of this case meet the conditions required by the rule to be met for the exercise by the adjudicator of the power to dispense with a hearing of the appeal? Let there be no doubt on one matter: there was no hearing, and it was the adjudicator's decision that there should be no hearing. The adjudicator admits as much in his statement of reasons for dismissing the appeal, where he says:'Since they [i e the service] had no further instructions from [the applicants] and no knowledge of their whereabouts, the [service] therefore requested that the adjudicator decide this case in such manner as he may deem proper. I am therefore determining it under rule 12.'
Though it must be accepted that the adjudicator believed that Mrs Rahmani and her sons were no longer represented by the service, his clerk's letter which accompanied the written determination and reasons was addressed and sent to the service and could be read as one which treated the service as continuing to represent Mrs Rahmani and her sons. No doubt it was a common form letter but more attention should be paid to such communications when action is taken under r 12. It is also clear that Mrs Rahmani never did withdraw her instructions to the service to act for herself and her two children in the conduct of their appeal. She and they were, therefore, represented parties: the service was their representative, Mr Moss and another officer being the two counsellors of the service charged with the conduct of their appeals. And the service's letter to the adjudicator of 9 November 1981 in which the service requested the adjudicator 'to decide this case in such manner as he may deem it to be proper', though it admits to lack of 'further instructions', does not state that the applicants had withdrawn their instructions to act for them in the appeal. Indeed, if the service was no longer acting, what business had it to request the adjudicator to deal with the matter in such manner as he should deem proper? The last instructions which the service had received from Mrs Rahmani were that there must be a hearing, that she would await news of its time and place, and that she wished a counsellor of the service to represent her. Conclusion The service was very much to blame for the loss of Mrs Rahmani's opportunity to have her case presented to the adjudicator and it is greatly to Mr Moss's credit that he has recognised his responsibility in the matter. But the question is whether the adjudicator had reason to be satisfied that there was no person authorised to represent the three appellants at a hearing of the appeal. On the evidence he had no reason to be so satisfied: the letter of 9 November 1981 on which he must have relied did not justify him in finding that the service was not authorised to represent them. He should have required an unambiguous declaration from the service either that their instructions had been withdrawn or that they had no instructions. The letter contained no such declaration and the truth was that Mrs Rahmani had neither withdrawn her instructions nor left the service without instructions. A necessary condition, therefore, for the exercise by the adjudicator of his power to determine the appeals without a hearing was lacking. The adjudicator erred in law in proceeding under r 12. I would, therefore, dismiss his appeal with costs here and below.