STARRED MNM (Surendran guidelines for Adjudicators) (Kenya)  UKIAT 00005
Date of hearing: 12/10/2000
Date Determination notified: 31/10/2000
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||RESPONDENT|
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".
The key phrase for our purposes is "in the determination of his civil rights and obligations". This expression means something different to a continental as opposed to an English lawyer. The jurisprudence of the European Court and Commission has approached the application of Article 6 on the basis that the word 'civil' incorporates the distinction between private and public law. Thus in Uppal v U.K. (1979) 3 EHRR 391 the Commission concluded that decisions to deport were of an administrative order, were made in the exercise of discretion by immigration authorities and so were not covered by Article 6(1). In P v U.K. (1987) 54 DR 211, the Commission stated that it had "constantly held that the procedures followed by public authorities to determine whether an alien should be allowed to stay in a country or should be expelled are of a discretionary administrative nature, and do not involve the determination of civil rights within the meaning of Article 6(1)".
"While it appears subject to argument in the English Court as to whether this provision (sc: Article 8A(1)) is declaratory or confers directly applicable rights in domestic law, the Commission in any event is of the opinion that any right involved is of a public law nature, having regard to the origin and general nature of the provision, which lacks the personal, economic or individual aspects which are characteristic to the private law options ...... Consequently, the matter falls outside the scope of the concept of 'civil rights and obligations'."
Accordingly, the application on this ground was declared inadmissible.
"It is .....clear that any waiver must be clear and unequivocal, and made with full knowledge of all the facts relevant to the decision whether to waive or not".
We think, too, that there must be freedom of choice in the sense that the party alleged to have waived the irregularity must not have been subject to any improper pressure. We take the view that the special adjudicator's approach that an adjournment would be offered but, if it was not accepted, she would act as she had indicated was to apply improper pressure because it put Ms. Kotak in an impossible position if her instructions were, as we are told they were, that there should then be no adjournment. We are not saying that the special adjudicator was consciously applying improper pressure; she clearly was not. But the course she adopted produced that result because she was unaware of the situation faced by Ms Kotak. The guidelines are designed to avoid such situations arising. In any event, the mere fact that she allowed the case to continue cannot lead to a conclusion that there must have been a waiver. All the circumstances must be considered. In the light of the fuller information before us, Ms. Rose did not seek to press the waiver argument and we reject it.
MR JUSTICE COLLINS
MATUA v Secretary of State for the Home Department HX/53882/2000