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Secretary of State for the Home Department v. Immigration Appeal Tribunal [2001] EWHC Admin 261 (9th April, 2001)
Case No: CO/3937/00
Neutral Citation Number: [2001] EWHC Admin 261
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Monday 9th April 2001
B e f o r e :
THE HONOURABLE MR JUSTICE SCOTT BAKER
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Secretary of State for the Home Department
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Claimant
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Immigration Appeal Tribunal
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Defendant
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Michael Fordham (instructed by Treasury Solicitor for the
Claimant)
Mr Robin Tam (instructed by Treasury Solicitor for the
Defendant)
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Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE: SCOTT BAKER
1. The Claimant in this claim for judicial review is the Secretary of State for
the Home Department. The Defendant is the Immigration Appeal Tribunal (the
Tribunal). The underlying litigation concerned Musa Zengin, an asylum seeker,
who is an interested party but who has taken no part in the present application
which raises two points of law:
i) the Tribunal's power to remit a case for rehearing by an adjudicator and
ii) the circumstances in which an order made by a chairman of the Tribunal
sitting alone may be varied or set aside.
2. The facts are very simple; the law much more difficult. On 20 October 1998
Mr Zengin's claim for asylum was refused. He appealed to a special adjudicator
who allowed his appeal on 27 August 1999. The Secretary of State was granted
leave to appeal and on 6 March 2000 the appeal was listed for mention before a
Tribunal chairman sitting alone (Mr Fox). Mr Zengin's solicitors wrote to the
Tribunal saying they did not intend to appear at the mention and asked for the
appeal to be listed for hearing. This was an entirely proper course to save
costs, and the Tribunal was aware that the appeal was resisted. Mr Fox took the
view that the special adjudicator's decision was flawed and that the case
should be remitted to be heard afresh by a different adjudicator. He persuaded
Mr Zengin, who had attended in person, to agree and accordingly made an order
under rule 17 (2) of the Asylum Appeals (Procedure) rules 1996 ("the 1996
Rules").
3. Mr Zengin's solicitors were not surprisingly upset and wrote complaining
that such an order should not have been made in their absence when all they had
expected to happen was for a hearing date to be fixed. They applied for Mr
Fox's order to be set aside and for the appeal to be determined. They wished to
argue that the special adjudicator's decision should be upheld and the
Secretary of State's appeal dismissed. The application was listed before a full
Tribunal presided over by Collins J on 10 May 2000, but it was adjourned for
legal argument until 10 June 2000 when the Tribunal decided it did have
jurisdiction to set aside Mr Fox's order and that the appeal should be listed
for hearing in the normal way as soon as possible. (see [2000] Imm AR 518).
4. The relief sought by the Claimant in the present proceedings is limited to
declaratory relief. No quashing order is sought, because the Claimant accepts
that the circumstances of Mr Fox's decision would have entitled Mr Zengin to
have that decision quashed by the Administrative Court on Judicial Review.
Whilst it is important for the law to be clarified, Mr Zengin ought not to be
deprived of the benefit of the order of 10 June 2000, nor should further delay
and uncertainty be injected into his case.
Introduction
5. Both Mr Tam, supporting the Tribunal's decision, and Mr Fordham for the
Claimant, contend that the Tribunal has power to remit to a special adjudicator
for a rehearing, but they spell out that power from the legislation in very
different ways. I have to consider the possibility that neither is right and
that there is no such power of remittal. That is a conclusion I would only
reach with the greatest reluctance. Everybody is agreed that such a power is an
important tool in the Tribunal's armoury and furthermore that over a number of
years many remittals have been ordered on the basis that such a power does
exist. For example the existence of such a power is crucial to meet the case
where an adjudicator hears an appeal in the appellant's absence but the
Tribunal learns that there was a good reason for his absence of which the
adjudicator was unaware. The Tribunal referred to this as the paradigm case.
6. This case is concerned with what I shall call the old law, that is the
Immigration Acts 1971 and 1993 and various rules that predate the Immigration
and Asylum Appeals (Procedure) Rules 2000 ("the 2000 Rules"). The Immigration
and Asylum Act 1999 and the 2000 Rules ("the new law") are not materially
different for the purposes of the present questions before the court. For
convenience, there is annexed to this judgment a table that shows the
corresponding provisions in the old and new law.
7. The key statutory provisions are Sections 19, 20 and 22 of the Immigration
Act 1971. Section 19 covers determination of appeals by adjudicators. It
provides, so far as material:
"(1) Subject to Sections 13 (4) and 16 (4) above, and to any restriction on the
grounds of appeal, an adjudicator on appeal to him under this Part of this Act-
a) shall allow the appeal if he considers -
i) that the decision or action against which the appeal is brought was not in
accordance with the law or with any immigration rules applicable to the case;
or
ii) where the decision or action involved the exercise of a discretion by the
Secretary of State or an officer that the discretion should have been exercised
differently; and
b) in any other case, shall dismiss the appeal.
(2) .......................
(3) Where an appeal is allowed, the adjudicator shall give such directions for
giving effect to the determination as the adjudicator thinks requisite, and may
also make recommendations with respect to any other action which the
adjudicator considers should be taken in the case under this Act; and, subject
to Section 20 (2) below, it shall be the duty of the Secretary of State and of
any officer to whom directions are given under this subsection to comply with
them."
8. Sections 20 and 21 are together headed "Appeals from adjudicator to
Tribunal, and review of decisions". Section 20 is headed "Appeal to Tribunal
from determination of adjudicator". It provides:
"(1) Subject to any requirement of rules of procedure as to leave to appeal,
any party to an appeal to an adjudicator may, if dissatisfied with his
determination thereon, appeal to the Appeal Tribunal, and the Tribunal may
affirm the determination or make any other determination which could have made
by the adjudicator.
(2) Directions given by an adjudicator under Section 19 (3) above need not be
complied with so long as an appeal can be brought against his determination
and, if such an appeal is duly brought, so long as the appeal is pending; and
if the Tribunal affirm his determination allowing the appeal, they may alter or
add to his directions and recommendations under Section 19 (3) or replace them
with their own directions and recommendations, and the provisions of that
subsection shall apply to directions given by them accordingly.
(3) Where an appeal is dismissed by an adjudicator but is allowed by the
Tribunal, Section 19 (3) above shall apply with the substitution of references
to the Tribunal for references to the adjudicator."
9. Sections 22 and 23 are headed "Supplementary" and Section 22 itself is
headed "Procedure". Section 22 (1) contains the rule-making power. Section 22
(2) provides:
"Rules of procedure may include provision -
a) enabling the Tribunal, on an appeal from an adjudicator, to remit the appeal
to an adjudicator for determination by him in accordance with any directions of
the Tribunal, or for further evidence to be obtained with the view to
determination by the Tribunal; or
b) enabling any functions of the Tribunal which relate to matters preliminary
or incidental to an appeal, or which are conferred by Part II of Schedule 2 to
this Act, to be performed by a single member of the Tribunal; or
c) ....... .............................................."
10. The relevant rules are Rule 21 of the Immigration Appeals (Procedure) Rules
1984 ("the 1984 rules") and rule 17 (2) of the 1996 rules. Rule 21 is headed
"Remittal of appeal for determination by adjudicator". It provides:
"(1) The Tribunal may, if in the circumstances of a particular appeal it
thinks it appropriate to do so, remit that appeal to an adjudicator for
determination by him in accordance with any directions given to him by the
Tribunal.
(2) The adjudicator to whom an appeal is remitted under this Rule may be either
the adjudicator whose determination is the subject matter of the appeal or some
other adjudicator.
(3) Subject to any necessary adaptations Rules 17, 18 and 19 shall apply in
relation to any proceedings on an appeal remitted to an adjudicator under this
Rule as they apply in relation to proceedings before the Tribunal."
11. Rule 17 is headed "Deciding an appeal". Rule 17 (2) provides :
"Unless it considers:
a) that it is desirable in the interest of justice and
b) that it would save time and expense to remit the case to the same or another
special adjudicator for determination by him in accordance with any directions
given to him by the Tribunal, the Tribunal shall determine the appeal
itself."
12. The Tribunal, in my judgment quite correctly, pointed out that it has only
those powers that are given to it by the statutes and rules that govern its
jurisdiction and procedure. It has no inherent powers save those which enable
it to prevent its processes being abused. Without these it could not function
properly as a tribunal. What, in particular, it does not have is power to deal
with appeals in a way which is not permitted by the governing statutes or
rules.
13. The Tribunal found that it had two separate powers to remit a case to an
adjudicator. First an express power granted under Rule 21 of the 1984 Rules and
Rule 17 (2) of the 1996 Rules, made under Section 22 (2) (a) of the 1971 Act,
and second an implied power to be found in Section 20 of the 1971 Act, but
nowhere mentioned in the rules. I should add that there were under the old
rules, but are no longer under the new rules, separate rules dealing with
asylum and non asylum immigration cases.
14. The two powers of remittal are, so the Tribunal held, functionally
different. The express remittal power involves the Tribunal delegating to the
adjudicator the Tribunal's function of deciding the appeal from the
adjudicator. As a result there can be no further appeal to the Tribunal, but
only direct from the adjudicator to the Court of Appeal. In exercising this
power the Tribunal is, as it were, delegating its job to the adjudicator. The
implied power of remittal, on the other hand, involves the Tribunal disposing
of the appeal to it by allowing it and ordering a rehearing by the adjudicator
of the appeal to him. During argument, for convenience the express power of
remittal has been referred to as procedural remittal and the implied power as
substantive remittal. I have adopted the same description.
15. The conclusion envisaged by the Tribunal is, on the face of it, surprising.
Why should Parliament spell out with some care in Section 22 (2) (a) a power to
make rules for one kind of remittal (which incidentally the Tribunal said in
its determination at Paragraph 14 should only rarely, if ever, be used) and yet
remain completely silent about the other kind of remittal - the one of which
frequent use is to be made?
16. Furthermore, absent any assistance from Section 22 (2) (a) (because, on the
Tribunal's finding, it deals with an entirely different kind of remittal), it
is not easy to extract the implied power to order substantive remittal from
Section 20. Section 20 says the Tribunal may affirm the determination or make
any other determination which could have been made by the adjudicator. One
determination which the adjudicator cannot make is to direct that the matter be
reheard by himself.
17. If Mr Tam, who has appeared on behalf of the Tribunal, is right about the
true construction of Section 22 (2) (a) i.e. that it covers only procedural
remittals where the adjudicator acts on behalf of the Tribunal, and does not
include substantive remittals where the adjudicator considers the matter afresh
giving rise to a further right of appeal to the Tribunal, then my inclination
is that there is probably no power to order a substantive remittal because it
cannot in those circumstances be found within Section 20. This appears to have
been the position of Mr Henderson who argued the case for Mr Zengin before the
Tribunal.
18. Mr Tam's argument is that Section 22 (2) (a) recognises that the Tribunal
has the power to order remittal even though it cannot itself give the Tribunal
such power, because it is a provision which deals only with procedural matters
regulating the exercise of a jurisdiction that is found elsewhere. The
provision must, therefore, he argues have something to regulate. What it
regulates is the power to order a remittal of any kind which is contained in
Section 20, the section creating the jurisdiction of the Tribunal to deal with
appeals from adjudicators. Properly understood, therefore, Section 22 (2) (a)
regulates part (but only part) of the remittal jurisdiction conferred by
Section 20.
19. The next stage in his argument is that once it is accepted that the
Tribunal has a power to remit which is contained in Section 20 (albeit not
expressly mentioned) there is no reason to limit it to the type of procedural
remittal envisaged by Section 22 (2) (a). There is no statutory limitation on
the remittal power. There will plainly be situations in which the Tribunal
considers that the justice of the case requires that it should allow the appeal
from the adjudicator to the Tribunal, but also that it should order some
disposal other than giving a final decision on the case itself. This need can
be met by an exercise of Section 20 remittal power in the form of a substantive
remittal. I am not attracted by this somewhat convoluted route to establish an
implied power to order the one kind of remittal that is most critically and
frequently required in the interest of justice. Also there is no rule under
which to exercise this power for the rules relate only, on Mr Tam's argument,
to the procedural remittals envisaged by Section 22 (2) (a).
20. In my judgment a better approach is along the following lines. The Tribunal
has a single power to remit a case to an adjudicator and it is neither
necessary nor appropriate to speak of substantive remittals and procedural
remittals. The power arises by virtue of Section 20 read together with Sections
19 and 22. It is with this power that the remittal rules, Rule 21 of the 1984
Rules and Rule17 (2) of the 1996 Rules, made under Section 22 (2) (a), must be
read compatibly. The question then is the extent and nature of the remittal
power. It is on this issue that there is fundamental disagreement between the
Tribunal and the Secretary of State.
The Tribunal's powers under Section 20
21. The express words of Section 20 (1) say the Tribunal can affirm the
adjudicator's decision or make any other decision he could have made. It is
not, however, expressed in exhaustive terms. It does not say the Tribunal's
powers are limited in this way. The draughtsman could easily have said the
Tribunal may either affirm the determination or make any other
determination which could have been made by the adjudicator. Nor does it
contain an equivalent provision to that in Section 19 (1) (b), which says "and
in any other case shall dismiss the appeal". Remittal is thus not on the face
of the words excluded. Parliament has clearly in mind some form of remittal,
because it refers to it in Section 22.
22. Section 20 mirrors Section 19 and is directed towards the underlying issue
which the adjudicator was considering. The overturning or upholding of the
adjudicator's determination of that issue is what is expressly described in
Section 20. In one sense remittal is a step towards that conclusion. I agree
with Mr Fordham that Section 22 (2) (a) regulates and reflects, but does not
confer, jurisdiction. It is subservient to Section 20 from where the
jurisdiction emanates. Section 22 is the torch that casts light on Section
20.
23. The only modes of dealing with an appeal expressly referred to in Section
20 are by affirming the adjudicator's determination or by making any other
determination which he could have made. But when Sections 20 and 22 (2) (a )
are read together the latter clearly recognises that the former was intended to
include a power of remittal and I agree that Section 20 should be so construed.
Mr Fordham submits that this can, if necessary, be seen as a form of "allowing
the appeal", a view with which the Tribunal concurred.
The meaning of Section 22 (2) (a)
24. I therefore turn to Section 22 (2) (a) to see whether it must be
interpreted in such a way as to conclude that Parliament intended to exclude
substantive remittals. Is it to be construed as permitting only what Mr Tam has
called procedural remittals?
25. The cornerstone of the argument of Mr Fordham for the Secretary of State is
that the Tribunal's jurisdictional powers to decide appeals are to be found in
Section 20 whereas the adjudicator's jurisdictional powers are in Section 19.
The adjudicator's function is to decide appeals to him; the Tribunal's
function is to decide appeals to it. Section 22 (2) reflects a
particular situation that crosses the boundary between the adjudicator and the
Tribunal and spells out the procedure for coping with it. But it must be read
and construed against the power giving Sections 19 and 20.
26. Difficulty arises because on a literal reading Section 22 (2) (a) suggests
that the adjudicator is being required to determine the appeal from
an adjudicator. It says:
"Rules .......may include provision enabling the Tribunal, on an appeal
from an adjudicator, to remit the appeal to an adjudicator
for determination by him......"
27. In other words the Tribunal gets the adjudicator to do its job for it,
namely decide the appeal that was sent to it. Mr Fordham submits that such a
construction, although supported by the way the subsection reads, is manifestly
absurd. It does not fit with the statute as a whole; it produces an unjust
result and it cannot have been Parliament's intention. The court is not obliged
to adopt this construction and should not do so. The adjudicator only has
jurisdiction to decide an appeal to him. He has no jurisdiction to
decide an appeal to the Tribunal. Rules of procedure cannot confer such
a jurisdiction. When Section 22 (2) (a) is read with Section 19 remittal must
mean that the adjudicator becomes seised of the appeal "to him." He then
exercises the jurisdiction he has been given by Section 19.
If Section 22 (2) (a) is not read in this way and it is treated as having
jurisdictional implications, albeit it is a mere procedural provision, four
problems arise:
i) Where is the Tribunal's jurisdiction to delegate its function to an
adjudicator?
ii) Where does one find the adjudicator's jurisdiction to determine the appeal
to someone else? His jurisdiction is to determine appeals to him.
iii) Where is the right of appeal from the adjudicator's decision?
iv) How does Section 9 of the Asylum and Immigration Appeals Act 1993 fit?
28. The first two problems require no further elaboration. As to the others,
there are real difficulties in the paradigm case (see paragraph 5 above). Such
an appellant effectively loses a layer in the appeal process. I am not
persuaded that these difficulties can be overcome by exercise of the Tribunal's
factual jurisdiction on appeal which, in any event, is only to be used
sparingly. (See Borissov v Secretary of State for the Home Department
[1996] Imm A.R 524). Because the adjudicator's decision on remittal is
effectively that of the Tribunal, any right of appeal lies, if anywhere, to the
Court of Appeal. But until 1993 there was no appeal from the Tribunal to the
Court of Appeal. An error of law could be corrected by judicial review; but
that was it. I am unconvinced by Mr Tam's response that an appeal to the Court
of Appeal from a first instance decision of the Tribunal was contemplated by
statute (see Section 15 (7) and 15 (8) of the 1971 Act) and there is therefore
nothing unusual in the concept of an appeal to the Court of Appeal from an
adjudicator's determination of an appeal at Tribunal level.
29. Thus Mr Fordham's case is that there is only one kind of remittal and it is
impossible to believe that Parliament intended two, one express the other
implied, one via jurisdictional powers the other via procedural powers with the
express one being little used and yielding in significance to the implied
one.
30. The Tribunal found it impossible to accept that the word appeal is
being used in two different senses in the same sentence and this is obviously a
very formidable point against the way Mr Fordham primarily put his case before
the Tribunal. However, Mr Fordham frankly admitted that he had developed and
refined his case in argument before me. Whereas before the Tribunal his primary
point was that it is possible albeit unusual for a draughtsman to use the same
word with two different meanings in the same section, this is no longer in the
forefront of his argument now that he has developed his argument about
jurisdiction.
31. Mr Fordham's primary argument before me is that where the word
`appeal' is used in the subsection the focus in on appeal to the
Tribunal. Once the appeal is sent back to the adjudicator he has back what he
originally had. Accordingly, he submits, the subsection should be read as
follows i.e. that rules of procedure may include provision:
"enabling the Tribunal, on an appeal from an adjudicator, to remit the appeal
to an adjudicator for (a) determination by him in accordance with any
directions of the Tribunal, or for (b) further evidence to be obtained with a
view to determination by the Tribunal."
Mr Tam's reading on the other hand is:
"enabling the Tribunal, on an appeal from an adjudicator, (a) to remit the
appeal to an adjudicator for determination by him in accordance with any
directions of the Tribunal, or (b) to remit the appeal to an adjudicator for
further evidence to be obtained with a view to determination by the
Tribunal."
32. If Mr Fordham's submission is accepted the difficulty of attributing
different meanings to the word appeal does not arise. His fall back
position is that even if it is necessary to read appeal in two different
senses in the subsection the court should not, in the particular circumstance,
shrink from doing so.
33. Mr Fordham submitted that even approaching the problem linguistically there
are three points that militate against Mr Tam's interpretation. First, the
natural meaning of "remit" is to "send back". Sending back should be seen in
the context of sending back to a lower level in the appellate structure rather
than sending across to someone at the same level. What is "sent back" to the
adjudicator is the appeal "to the adjudicator". The Tribunal has an appeal from
an adjudicator it sends it back "to an adjudicator". What the
adjudicator has and receives back is the appeal "to an adjudicator". Secondly
the subsection uses the phrases "appeal from an adjudicator" and "appeal
to an adjudicator". Thus it can be said that the Tribunal has "an appeal
from an adjudicator" But it remits an "appeal to an adjudicator". It remits
that appeal for "determination by him". Thirdly, even if the Tribunal remits
(sends) the appeal to it that is because the Tribunal necessarily
has the function of dealing with the appeal to it. It does not follow
that what the adjudicator receives is an appeal to the Tribunal.
The adjudicator necessarily has the function of deciding appeals to him.
Each deals with the appeal with which it is empowered to be seised.
34. In the course of argument I asked counsel whether they could provide any
examples of instances where Parliament had used the same word with two
different meanings in the same section. My attention was drawn to Bennion on
Statutory Interpretation Third Edition p.942 and also to words of Lord
Romer in Barnard v Gorman [1941] A.C. 378, 397:
"My Lords, it very often happens that a word is used in more than one section
in an Act of Parliament and that it bears one meaning in one section and a
different meaning in another. It may even happen that a word is used in
different senses in the same section of an Act. But to arrive at the conclusion
that "offender", which appears only once in the section under consideration,
has one meaning when applied to the verb "detain" and a different meaning when
applied to the verb "proceed against by summons" requires a feat of mental
gymnastics of which I personally am quite incapable."
35. It is very difficult to see linguistically why the second reference to
"appeal" in Section 22 (2) (a) is not referring back to the first mention of
"appeal" earlier in the sentence. The linguistic point is strengthened by yet
further mention of "appeal" in Section 22 (2) (b) where is it plainly being
used in the sense of appeal to the Tribunal. Although this point is a
formidable one it is not in my judgment determinative. There is no absolute
rule that one word cannot have two different meanings within the same section
or subsection. True, it will only rarely occur but the ultimate question is
what did Parliament intend. To determine this it is necessary to look at the
Act as a whole. When one looks at Section 22 (2) in the context that the Act
gives the adjudicator power to hear appeals to him it seems to me that
Parliament cannot have intended the linguistic construction submitted by Mr
Tam.
36. The Tribunal said that if there was any doubt that it was the appeal to the
Tribunal of which the section which was speaking throughout it was put beyond
doubt by Rule 21 of the 1984 Rules which refers to remitting that appeal
to adjudicator. The answer in my judgment is that Rule 21 cannot be used to
construe Section 22 (2) (a). If the true construction of Section 22 (2) (a) is
that the Tribunal is not being empowered to delegate to the adjudicator the
function of deciding appeals to the Tribunal, then any rule made under section
22 must be read down so as to be compatible. To the extent that it cannot be,
it is ultra vires.
37. Mr Tam contends that the legislative history strongly supports his case
that Section 22 (2) (a) is limited to procedural remittals. Adjudicators and
the Tribunal were first created by the Immigration Appeals Act 1969 (see
Section 1). Section 7 provided for an appeal from an adjudicator to the
Tribunal. Section 8 (4) was the forerunner of Section 20 of the 1971 Act and
used similar wording.
38. Section 11 contained the Rule making power and provided:
"(2) (f) In the case of an appeal to the Tribunal under Section 7 of this Act,
for enabling evidence to be given otherwise than orally and for an appeal to be
remitted to an adjudicator for further evidence to be obtained."
39. Thus any remittal was for the express purpose of obtaining further
evidence. There was no other reference in the Act to remittals to an
adjudicator and no provision corresponding to the words "for determination by
him in accordance with any directions of the Tribunal" which were introduced by
Section 22 (2) (a) of the 1971 Act.
40. The relevant rule was Rule 16 (2) (b) of the Immigration Appeal (Procedure)
Rules 1970, which made provision for the Tribunal to remit the appeal to the
same or another adjudicator "for such further evidence as the Tribunal may
require to be obtained." Subsection (c) provided for a record of the evidence
received by the adjudicator to be received as evidence by the Tribunal. The
rule, like the statute, did not appear to contemplate a remittal for a
rehearing by the adjudicator.
41. The first rules under the 1971 Act appear to have been the Immigration
Appeals (Procedure) Rules 1972, which were in identical terms to the 1984
Rules. Mr Tam, as I have said, relies strongly on the reference to "a
particular appeal" and remitting "that appeal" as entirely consistent with his
construction of the Section 22 (2) (a). The rules, he argues, have provided
throughout procedures to regulate procedural remittals because that was all
Section 22, and earlier to an even lesser extent its predecessor Section 11 (2)
(f), provided for. If the Tribunal's analysis is correct, the power to order
substantive remittal has always existed quite independently of the rules. If
the power is to be found in Section 20 of the 1971 it must also, because of the
similarity of language, have existed in Section 8 (4) of the 1969 Act.
42. However, if the power existed, its existence may not have been appreciated.
At any rate there is no reported instance of it having been used until Taj
Bibi v Entry Clearance Officer, Islamabad [1977] Imm. A.R. 25. In that case
the Tribunal purported to remit for a full oral hearing under Rule 21 of the
1972 Rules.
43. Interestingly, Section 17 (2) of the 1996 Rules (which were introduced to
replace the 1993 Rules and, like those, dealt separately with asylum appeals)
speaks of remitting the case rather than the appeal. This broader
language suggests the draughtsman envisaged Mr Fordham's construction rather
than Mr Tam's.
44. Mr Tam spelt out a number of reasons why in his submission the new words
introduced into Section 22 (2) (a) can only refer to procedural remittals. I
shall deal with each in turn.
i) They appear in a section which, like its predecessor Section 11 (2) (f) of
the 1969 Act, deals only with the procedures which could be laid down to
regulate the exercise of the Tribunal's jurisdiction, and which could not
itself create a jurisdiction which the Tribunal did not otherwise have. Mr
Fordham's answer is that if it is correct that there is within Section 20 a
jurisdiction to remit, Section 22 (2) (a) recognises and reflects it but does
not create it.
ii) It is natural to read the new words in Section 22 (2) (a) as an extension
in substance of what went before, namely the Tribunal calling on the
adjudicator to assist the Tribunal in its determination of the case. There is
obvious force in this point. The question is whether the main thrust of Mr
Fordham's submission overrides it.
iii) The word remit, going back to Section 11 (2) (f) of the 1969 Act,
is used more in the sense of sending from one court to another than sending
back by an appeal court to an inferior court. I have already referred to Mr
Fordham's response and I do not think too much weight should be attached to the
fact that the word "remit" first appeared in the predecessor provision in the
1969 Act. The natural meaning of "remit" is send back rather than across.
iv) Although the word appeal could be used in more than one sense in
these statutory provisions, Section 22 (2) (a) is concerned only with
proceedings in which the Tribunal reviews the soundness of the adjudicator's
determination. The statutory scheme is that each successive level of challenge
is treated as a separate appeal.
v) In Section 22 (2) (a) the words "to remit the appeal" appear only once. They
apply to both limbs of Section 22 (2) (a) i.e. "for determination by him" and
"for further evidence to be obtained" - that is to the new words and to the
re-enacted words. The words "to remit the appeal" must therefore have the same
meaning in respect of both limbs. So, if in the second limb it is the appeal
before the Tribunal which is remitted to adjudicator for further
evidence to allow the Tribunal to determine the appeal, it must be the
same in the first limb. The wording of Rule 21 (i) of the 1984 rules is even
clearer because it makes it clear that what the adjudicator is to determine is
the particular appeal before the Tribunal.
vi) The terms "on an appeal from an adjudicator" and "to remit the appeal" are
immediately adjacent to each other in Section 22 (2) (a) and the word
appeal cannot sensibly refer to two different things, even if elsewhere
the word is capable of bearing other meanings.
Mr Fordham accepts that there is some force in these three points if his
primary argument is overcome. His case is that in both instances where the word
appeal appears the subsection is focussing on the appeal to the Tribunal
and what the Tribunal is doing. Determination by him should be read as
shorthand for determination by him of an appeal to him. He has to
determine something and he can only determine that which the Act by Section 19
gives him power to determine.
But, he says, even if Mr Tam is right in his construction, the first limb is
looking at the adjudicator determining something and the second limb is looking
at the Tribunal determining something. It is possible to give the same word a
different meaning if you focus on what the adjudicator is doing as against what
the Tribunal is doing.
vii) Rule 42 of the 1984 rules, like its predecessor in the 1972 rules,
permitted the president or a chairman acting alone to remit an appeal to an
adjudicator under Rule 21 (1) but only (see Section 22 (2) (b)) if doing so was
preliminarily or incidental to determination of an appeal at Tribunal level. It
is difficult, says Mr Tam, to imagine how the disposal of the appeal at
Tribunal level by an order that there be a retrial by an adjudicator could
properly be regarded as preliminary or incidental to an appeal.
Mr Fordham points to the fact that the same rule permits the president or a
chairman to determine a preliminary issue. That, like a substantive remittal,
may be dispositive of the appeal, and the mere fact that it is preliminary does
not mean it cannot be dispositive.
viii) Rule 21 (3) of the 1984 Rules brings in Rules 17, 18 and 19 on an appeal
remitted to an adjudicator which, Mr Tam says, is inconsistent with a
substantive remittal.
Mr Fordham's response is that there is no inconsistency. All it means is that
the evidential starting point for the fresh hearing is the evidence before the
Tribunal. But the Tribunal can direct the adjudicator either to allow further
evidence or to take some other course as the circumstances demand. All this
does is to give the Tribunal a measure of control over what the adjudicator is
required by the Tribunal to do, whether it is a substantive or procedural
remittal.
45. Mr Tam has produced a compelling argument in support of his construction of
the subsection namely that it provides only for procedural remittals. If he is
correct, the legislation leaves what Mr Fordham calls a black hole in the form
of the absence of any rule describing the circumstances in which a Tribunal can
exercise the implied power in Section 20 to order a substantive remittal i.e.
in effect a retrial. In my judgment, if Mr Tam's construction of Section 22 (2)
(a) is correct, the logical conclusion is that the Tribunal is unable to order
a substantive remittal, for there is no rule enabling it to do so. This is a
conclusion to which I would only be driven with the greatest reluctance. It is
a strong pointer in my view that Mr Tam's construction is not correct for it is
difficult to conclude that Parliament did not intend the Tribunal to have the
use of the power of substantive remittal.
46. Whilst I can see the force of Mr Tam's arguments and in particular that the
historical development of this legislation supports his construction of Section
22 (2) (a), I prefer the view that the subsection reflected for the first time
the power contained in Section 20 of the Act so that rules could be made for
its use. That is what the additional words for determination by him in
accordance with any directions of the Tribunal achieved. It was obviously
sensible that there should be a wider power of remittal than had hitherto been
available. Here was the opportunity for the rules to reflect the underlying
power of Section 20 and it is unthinkable that Parliament should only have
allowed the adjudicator to rehear the case as the agent for the Tribunal. In no
case is an adjudicator seised of an appeal to the Tribunal, albeit he does his
job under the directions of the Tribunal. The adjudicator never determines
appeals to the Tribunal. Adjudicators decide appeals to them; the Tribunal
decides appeals to it.
47. In my judgment there is no remittal power involving a Tribunal delegating
to the adjudicator its function of deciding the appeal from the adjudicator.
Substantive remittal always involves the disposing of the appeal to the
Tribunal and ordering a rehearing by the adjudicator of the appeal to him.
There is always a right of further appeal to the Tribunal.
Mr Fox's decision.
48. The Tribunal decided the order of Mr Fox could be set aside because it was
an interlocutory order. Mr Fox had decided to order a substantive remittal in
circumstance in which he should not have done so. On the Tribunal's case that
was under the implied power to be found in Section 20, but in my judgment it
was under the procedural rule made under Section 22 (2) (a). It involved a
rehearing by an adjudicator with a further right of appeal, if appropriate, to
the Tribunal. The Tribunal took the entirely understandable view that it was
much better to put matters right within its own procedure rather than that
expense being incurred in applying for judicial review or appealing to the
Court of Appeal. The question is whether it had the power to do so.
49. The Tribunal's submission is that substantive remittals are final
determinations and that the position is as follows:
i) Any determination by which an appeal from an adjudicator to the Tribunal is
effectively brought to an end is a final determination. This includes:
a) dismissing the appeal and affirming the adjudicator's decision;
b) allowing the appeal but substituting the opposite decision;
c) allowing the appeal by ordering a substantive remittal.
ii) The Tribunal will then normally have the opportunity of considering that
party's application for leave to appeal.
iii) If the Tribunal thinks that there is, at least arguably, merit in the
grounds of appeal and is thus minded to a grant leave to appeal, it may hear
representations from all parties on whether it should exercise its power under
Rule 27 (5) of the Immigration and Asylum Rules 2000 to set aside its own
determination and order a rehearing by itself of the appeal. This is a new
power that has recently been introduced to avoid unnecessary litigation and
speed up disposal of cases.
50. Section 9 of the Asylum and Immigration Appeals Act 1993 provides that:
"(1) Where the Immigration Appeal Tribunal has made a final determination of an
appeal under Part II of the 1971 Act.......... any party to the appeal may
bring a further appeal to the appropriate appeal court on any question of law
material to that determination.
(2) An appeal under this Section may be brought only with the leave of the
Immigration Appeal Tribunal or, if such leave is refused, with the leave of the
appropriate appeal court."
"Appropriate appeal court" means in England the Court of Appeal.
51. The Tribunal's submission is that a substantive remittal is a final
determination but a procedural remittal is not. If the procedural remittal is
for the adjudicator to determine the appeal to the Tribunal on the Tribunal's
behalf, then when the adjudicator makes that determination there will be a
"final determination" from which an appeal to the Court of Appeal may be
brought. Similarly, if the order for a procedural remittal is for an
adjudicator to obtain further evidence, the Tribunal will thereafter have the
case back to determine the appeal itself. At that point there will be a "final
determination".
52. Save in the case of substantive remittals there is no difficulty in the
Tribunal following the above procedure. But in the case of substantive
remittals the Tribunal is faced with the decision in Kara v Secretary of
State for the Home Department [1995] Imm.A.R. 584 which decided that a
remittal of a case for a hearing de novo is not a "final determination" within
Section 9 (1) of the 1993 Act, and that accordingly no appeal lay to the Court
of Appeal. The Tribunal concluded that Kara was wrongly decided and
should not be followed. The decision is not binding because it was based on a
concession by counsel; the point was not fully argued. I accept that I am not
absolutely bound by the decision but it nevertheless warrants close
examination. In Kara the remittal had been after a full hearing by the
Tribunal. Swinton Thomas L.J said at p.586 that the Immigration Appeal Tribunal
allowed the appeal from the adjudicator substantially on the basis that he was
wrong not to have granted the adjournment sought by the Secretary of State and
that accordingly it directed that the appeal should be remitted to a different
adjudicator for a rehearing. The issue before the Court of Appeal was whether
the Tribunal had made an error of law in ordering that the matter be remitted
for a hearing de novo. When she realised that the Court of Appeal had no
jurisdiction to entertain an appeal, counsel for Mr Kara changed her tack and
sought leave to apply for judicial review. Interestingly, the single Lord
Justice who refused leave to appeal said that if there was a statutory right of
appeal against the decision he would have granted leave, since the issues
raised in the grounds were arguable; but he refused because the Tribunal's
decision was not a final determination. Swinton Thomas L.J. said at p.586:
"The Immigration Appeal Tribunal in this case neither confirmed the
determination, nor made a determination which could have been made by the
adjudicator. As I have said, the matter was remitted to the adjudicator for a
new hearing"
53. He then quoted Rule 17 (3) of the 1993 Rules and went on:
"That is the course taken by the Tribunal in this case. Accordingly the issue
arose as to whether this court has any jurisdiction to entertain this appeal.
Miss Harrison has conceded that the court does not have jurisdiction because
the Tribunal has not determined the appeal. In those circumstances we have not
heard any argument on the issue. Certainly, rule 17 (3) would tend to indicate
no determination has taken place. The rules cannot govern the meaning of the
primary legislation but they have persuasive effect. However, albeit we have
not heard argument on this point, it does seem to me that there has not been a
final determination of the appeal pursuant to the 1993 Act, with the result
that no appeal can lie to this court from the order of the Tribunal."
54. The Tribunal in the present case posed the question when, if the
remittal is not a determination, is the appeal determined and by whom. The
appeal cannot be left in the air. It must be finally be determined by the
Tribunal at some point. It drew attention to a statement by Professor Jackson
in Immigration Law and Practice (2nd Edition) paragraph 22.86:
"A determination to remit the matter for rehearing.........is "final" in
relation to the proceedings before the Tribunal but not "final" of the issue to
be decided on the appeal. After some uncertainty it is accepted that in the
statute "final" refers to the appeal issue."
This is in my view a helpful analysis. One has to distinguish between the
underlying issue and the vehicle by which disposal of that issue is transmitted
from one level of hearing to another. This is material not only to
understanding the meaning of final determination of an appeal in Section
9 but also to the true construction of Section 22 (2) (a) of the 1971 Act. What
Section 9 is aimed at is the issue between the parties. Only when that has been
finally resolved will it be relevant for the case to proceed to the Court of
Appeal. Remittal is but a step on the way to resolution. Viewed in this light,
Mr Tam's conceptual problem about what becomes of the appeal disappears.
55. Mr Tam submits that final determination should be given its ordinary
meaning. If the Tribunal has disposed of the case before it by remitting it to
an adjudicator for re-determination at first instance level, with a further
right of appeal back to the Tribunal thereafter, the Tribunal is no longer
seised of the case; it has no further function in relation to it. It will never
see it again unless it comes back on a further appeal. In ordinary language it
has made a final determination of the appeal before it, even if that decision
has not yet produced a definitive answer to the individual's underlying
challenge to the original administrative decision.
56. Furthermore, he argues, there is no logical or linguistic or legal reason
why this meaning should not be adopted. In my judgment, however, there is no
reason to open up orders for remittal to scrutiny by the Court of Appeal. There
is, of course, always the remedy of judicial review in appropriate
circumstances.
57. I accept the submission of Mr Fordham. There was no final determination of
the appeal in the present case. What Section 9 envisages is the outcome of the
case, whether the Secretary of State's decision remains intact or is
overturned. Section 9, he points out, requires i) a determination ii) of
not on the appeal which must iii) be final. Such a description is not
applicable to a remittal, which by its very nature is designed to leave open
the outcome of the case. The emphasis in my judgment of finality is
important as is the reference to a determination of an appeal under Part II of
the 1971 Act which of course contains Sections 19 and 20 as well as the
procedural Section 22. The Tribunal does not determine the case; rather it
remits it. Remittal is an option not expressly described in Section 20 and
therefore does not fall within the expression final determination of the
appeal. Remittal is an alternative to final determination by the Tribunal; it
is for a final determination by the adjudicator.
58. Further help is to be found in Rule 21 of the 1984 rules and Rule 17 of the
1996 rules. In particular Rule 17 refers to remitting the case to a special
adjudicator for determination by him. It is perfectly possible, it seems to me,
for the Tribunal to make a decision that is not a final determination; a
remittal is one such. In my judgment there is no good reason not to follow the
decision in Kara which I believe to be good law.
59. I was also referred to Section 33 (4) of the 1971 Act , which provides:
"........an appeal.....shall ......be treated as pending during the period
beginning when notice of appeal is duly given and ending when the appeal is
finally determined or withdrawn........and an appeal shall not be treated as
finally determined so long as a further appeal can be brought by virtue of
Section 20 [of the 1971 Act] or Section 9 of the Immigration and Asylum
1993...... nor, if such an appeal is duly brought, until it is determined or
withdrawn......"
60. Initially Mr Fordham sought to place great reliance on this subsection but
having seen Mr Tam's response (paragraph 7.13 of his skeleton) he accepted that
his argument that Section 33 (4) disposed of the point in his favour was
misconceived, because it led to the absurd conclusion that there could never be
a final determination of an appeal when there remained a possibility that an
appeal to the Court of Appeal could be brought under Section 9 of the 1993 Act.
In other words his argument was circular.
61. The purpose of Section 33 (4) was in my judgment to define the period
during which a person is protected from enforcement action if he is seeking to
challenge the administrative decision. This it did by defining "pending
appeal", rather than "finally determined". Section 33 (4) is of little value to
Mr Fordham's arguments. All it does is underline that available appeals should
first be pursued and concluded before an appeal can be determined.
62. Given that Mr Fox did not make a final determination when he remitted the
case to an adjudicator was there power for the full Tribunal to set his order
aside? Mr Fordham's submission is that it makes no difference who makes the
order for the Tribunal. Whether it is a single member or the full Tribunal the
nature of the application, the power and the legal consequences are the same.
In neither case can the remittal decision be set aside by the Tribunal, because
it is the Tribunal's decision on the appeal to it.
63. There are two rules that are relevant, Rule 38 of the 1984 Rules and Rule
44 of the 1996 Rules. They are in almost identical terms.The differences are
immaterial for present purposes. These rules provide that any irregularity
resulting from failure to comply with the rules before the Tribunal has reached
its decision shall not by itself render the proceeding void, but the Tribunal
can before reaching its decision take steps to cure the irregularity.
64. The position was considered in Akewushola v Secretary of State for the
Home Department [2000] 1.W.L.R. 2295. At p.2300H Sedley L.J. asked the
question: can even a full Tribunal rescind its own or another Tribunal's
decision? He said he could find no explicit power to do so in the rules and
that he could see a number of reasons why no such power should be inferred or
implied. Then he quoted Rule 38 before he said:
"The limit in point of time of this power to cure irregularities is thus the
point at which a decision is reached:"
Then at 2301D:
"For my part I do not think that, slips apart, a statutory Tribunal - in
contrast to a superior court - ordinarily possesses any inherent power to
rescind or review its own decisions. Except where the High Court's jurisdiction
is unequivocally excluded by privative legislation, it is there that the power
of correction resides."
And a little later:
"If something has gone procedurally wrong which is capable of having the
affected the outcome, it is to the High Court - if necessary on a consensual
application - that recourse must be had."
65. Tucker J. followed this approach in R v Immigration Appeal Tribunal ex p
Wanyoike [2000] Imm A.R. 389 but the Tribunal in the present case
distinguished the observations of Sedley L.J (with whom Peter Gibson and Laws
L.J.J agreed) on the ground that they did not apply to interlocutory orders,
because if they did it would be impossible for the Tribunal to manage cases
before it.
66. Mr Tam's argument in support of the Tribunal's decision was on the
following lines. Mr Fox had a choice between ordering a substantive remittal or
leaving the appeal to continue on to a full hearing before the Tribunal. This
was a classic interlocutory order regardless of whether the order he actually
made was or was not a "final determination." The distinction drawn in Salter
Rex v Ghosh [1971] 1Q.B. 597 between interlocutory and final orders applies
to statutory tribunals as well as to the High Court and County Court. It was
the possibility that the proceedings would not be terminated by Mr Fox's
decision that made it an interlocutory order. So, submits Mr Tam, Mr Fordham's
argument that it makes no difference whether it was the chairman alone or the
full Tribunal is wrong. If the full Tribunal had considered this question at
the full hearing of the appeal to the Tribunal it would not have had the option
of leaving the appeal to continue on to a full hearing by the Tribunal.
67. I cannot accept that the distinction between interlocutory and final orders
has any relevance to proceedings in statutory tribunals such as the Immigration
Appeal Tribunal. The relevant rules expressly provide for self correction by
the Tribunal at any time before it reaches a decision. It matters not whether
the decision was taken at a preliminary hearing or before a single chairman.
Where a legislative scheme provides express powers of self correction one does
not expect to find an implied power to revoke decisions. In my judgment the law
is as stated by Sedley L.J. in Akewushola.
Conclusion
(i) The Tribunal has a single power to remit a case to an adjudicator and not
two separate powers, one express and one implied as found by the Tribunal. The
power is exercised under rules made under Section 22 (2) (a) of the
Immigration Act 1971.
(ii) There is no remittal power involving the Tribunal delegating to the
adjudicator the Tribunal's function of deciding an appeal from an adjudicator.
Remittal involves disposing of the appeal to the Tribunal and ordering a
rehearing by the adjudicator of the appeal to him. There is always a right of
further appeal to the Tribunal.
(iii) Remittal is never a final determination within the meaning of Section 9
of the Asylum and Immigration Appeals Act 1993.
(iv) It is of no significance that the remittal decision was made by Mr Fox
rather than a full Tribunal. The appellate authority had reached its decision
within the meaning of Rule 38 of the 1984 Rules and it could not thereafter be
corrected as an irregularity.
There will in the circumstances be judgment for the Secretary of State and I
shall hear further argument as to the appropriate declarations to reflect the
Tribunal's errors of law.
ANNEXE
COMPARATIVE TABLE OF LEGISLATIVE PROVISIONS
SUBJECT OLD LAW NEW LAW
Adjudicator
|
S.19
Immigration Act 1971
|
Para
21 Schedule 4 Immigration and Asylum Act 1999
|
Tribunal
|
S.20
Immigration Act 1971
|
Para
22 Schedule 4 Immigration and Asylum Act 1999
|
Remittal
´´
´´
|
S.22
(2) (a) Immigration Act 1971
Rule 21 Immigration Appeals (Procedure) Rules 1984
Rule 17 (2) Asylum Appeals (Procedure) Rules 1996
|
Para
4 (1) (d) Schedule 4 Immigration and Asylum Act 1999
Rule 23 The Immigration and Asylum Appeals (Procedure) Rules 2000
´´
|
Single
Member
´´
´´
|
S.22
(2) (b) Immigration Act 1971
Rule 42 Immigration Appeals (Procedure) Rules 1984
Rule 37 Asylum Appeals (Procedure) Rules 1996
|
Paras
6 (3) and (4) Schedule 2 Immigration and Asylum Act 1999
´´
´´
|
Irregularities
´´
|
Rule
38 Immigration Appeals (Procedure) Rules 1984
Rule 44 Asylum Appeals (Procedure) Rules 1996
|
Rule
49 The Immigration and Asylum Appeals (Procedure) Rules 2000
´´
|
Final
Determination
´´
|
S.33
(4) Immigration Act 1971
S.9 (1) Asylum and Immigration Appeal Act 1993
|
S.58
(6) and (7) Immigration and Asylum Act 1999
Para 23 (1) Schedule 4 Immigration and Asylum Act 1999
|
**********************
MR JUSTICE SCOTT BAKER: For the reasons given in the judgment that has
been handed down, this application is allowed.
Mr Tam, just one matter which you might be able to help me with. As I
think you are aware, the Chairman of the Immigration Appeal Tribunal has seen a
copy of the judgment.
MR TAM: My Lord, yes.
MR JUSTICE SCOTT BAKER: He has raised one question, which indeed he may
have raised with you, I do not know, which is that he is concerned about a
plethora of applications with regard to the Akewushola point, and
questions whether it is absolutely clear in the judgment what determinations
are covered.
MR TAM: My Lord, I have to confess I was not aware that that had been
raised. If your Lordship looks at the declarations which I have drafted, as
your Lordship knows there are two suggested forms of declarations, and the ones
that I have drafted your Lordship has had today. I am sorry that it has come
so late. As I understand it, my learned friend is content to the form of the
declarations to be made if your Lordship is happy with it.
MR JUSTICE SCOTT BAKER: Right.
MR TAM: What your Lordship will see in terms of the structure is this:
(1) there is a power to remit for determination. That power is described in
22(2)(a).
In fact, just flicking over to the other page, your Lordship then sees at
(4) that the IAT has no power to remit other than as described in 22(2)(a).
MR JUSTICE SCOTT BAKER: Yes.
MR TAM: Which is the core of your Lordship's determination on that
part. Then the consequences are set out there at (3), which is that the
adjudicator has once more an appeal to him; (b) that when the adjudicator
determines that the appellant may then appeal to the IAT afresh (and I have put
in there subject to any provisions, restrictions or right of appeal requiring
leave, which I think would follow as a matter of course), (c) that the exercise
of that power disposes of the appeal to the IAT, but (d) it is not a final
determination for the purposes of appealing to the Court of Appeal, and (e)
once the IAT has disposed of the appeal by exercising that power, that power of
remittal, it has no jurisdiction to set aside.
MR JUSTICE SCOTT BAKER: Yes.
MR TAM: My Lord, I hope that declaration will make clear what the ambit
of your Lordship's judgment is, that it relates solely to whether or not there
is a power to set aside the decision to remit for determination, and that of
course is the subject matter of this application.
MR JUSTICE SCOTT BAKER: Yes. What was just going through my mind, if
you look at the judgment immediately above the conclusion, what I said is, "In
my judgment the law is as stated by Sedley LJ in Akewushola."
MR TAM: My Lord, yes.
MR JUSTICE SCOTT BAKER: Leaving aside for a moment your declaration,
what I was wondering was whether it was desirable to add a sentence in these
terms: "What is critical is whether the tribunal has made a decision which is
dispositive of the appeal to it."
I do not know whether that confuses the issue at all or clarifies it.
MR TAM: My Lord, it certainly would not confuse the issue.
MR JUSTICE SCOTT BAKER: Or whether it is covered anyway in the
declaration. What I had in mind was, I think what Collins J is concerned about
is people who read this judgment do not really understand the full implications
behind it, and it is not always easy to get a complete drift of it immediately,
and they then are not clear where the dividing line is in respect of rules 38
and 44 for setting aside what they have done.
MR TAM: Yes. My Lord, drafting on my feet, as it were, perhaps just
taking your Lordship's suggested words and altering them slightly to, "What is
critical is that the decision to remit is dispositive of the appeal."
MR JUSTICE SCOTT BAKER: But I think what Collins J is concerned about
is -- that is clear enough, but if we look at either of the rules, if you look
at rule 38 -- you do not have it here, do you?
MR TAM: My Lord, I do not have it with me, but it may be that it is
quoted in the judgment. I am just --
MR JUSTICE SCOTT BAKER: It is not, actually, I do not think, but what
it says is: "Any irregularity resulting from failure to comply with these
rules before an appellate authority has reached its decision shall not by
itself render the proceedings void, but the appellate authority may" -- and
then can unscramble the mess it has got into.
I think what Collins J was concerned about is that there may be a lack of
clarity as to what is meant by "decision" in rule 38.
MR TAM: My Lord, yes.
MR JUSTICE SCOTT BAKER: And what it applies to, and whereas it seems to
me that what it applies to is disposals of the process that has come to it,
namely the appeal, but it does not apply to interlocutory steps en route to
that conclusion.
MR TAM: Yes. My Lord, again, taking your Lordship's suggestion as a
basis, perhaps something along the lines of this: that what is critical is that
the decision to remit the appeal to an adjudicator for determination is a
decision which disposes of the appeal, and therefore a decision after which the
power to cure irregularities can no longer be exercised.
MR JUSTICE SCOTT BAKER: If you can just repeat that.
MR TAM: It will not be accurate.
MR JUSTICE SCOTT BAKER: What is critical --
MR TAM: -- is that the decision to remit the appeal to an adjudicator
--
MR JUSTICE SCOTT BAKER: Just a minute. What is critical is that the
decision --
MR TAM: -- to remit the appeal to an adjudicator for determination --
MR JUSTICE SCOTT BAKER: Yes.
MR TAM: -- is a decision which disposes of the appeal to the tribunal
--
MR JUSTICE SCOTT BAKER: Yes.
MR TAM: -- comma, after which the power to cure irregularities given by
the rules can no longer be exercised. I hope that makes some sort of sense.
MR JUSTICE SCOTT BAKER: I do not think it can be any clearer than
that. I think to you and me it is pretty clear already from the judgment.
MR TAM: My Lord, yes, but I can understand Collins J's apprehension
based, no doubt, on day-to-day experience on what actually happens.
MR JUSTICE SCOTT BAKER: I am sure. I think what I will do, then, is I
will add that sentence immediately after the word "Akewushola", which is the
last word in the paragraph before reaching the conclusion.
MR TAM: My Lord, yes. In fact, your Lordship will then see that that
dovetails nicely into the declaration, particular at 3(c) and 3(e) of my draft,
which I would commend to your Lordship.
MR JUSTICE SCOTT BAKER: Yes. The draft is agreed, is it?
MISS MULCAHY: My Lord, my instructions are that the Secretary of State
is relaxed about the wording as adopted, and therefore this draft seems as good
as any.
MR JUSTICE SCOTT BAKER: That seems good enough for me then.
MR TAM: My Lord, I am grateful. My Lord, I have made --
MR JUSTICE SCOTT BAKER: Would you like leave to appeal?
MR TAM: My Lord, yes, I would ask for that. It is a matter of
considerable importance as to how the tribunal is to exercise its functions.
MR JUSTICE SCOTT BAKER: You may of course end up by shooting yourselves
completely in the foot. As you probably have seen from the judgment, my later
concern was whether there was any power of remittal at all.
MR TAM: My Lord, yes. Of course, we understand that and we do see
that.
MR JUSTICE SCOTT BAKER: Yes.
MR TAM: However, the one thing that, above all, the tribunal seeks is
clarity.
MR JUSTICE SCOTT BAKER: Yes.
MR TAM: If your Lordship were to grant leave, of course we would not
take that simply as automatic carte blanche. We would nevertheless consider
--
MR JUSTICE SCOTT BAKER: No, I understand. If ever there was a case
that justified leave, I am sure that this was it, and I do not imagine there is
any suggestion otherwise, is there?
MISS MULCAHY: No, my Lord.
MR JUSTICE SCOTT BAKER: You can certainly have leave, or permission, I
should say.
MR TAM: I am very grateful. My Lord, the only other question is that
of costs. I see that the Secretary of State is suggesting that there should be
no order for costs, and we would be entirely content with that. I am
grateful.
MR JUSTICE SCOTT BAKER: Certainly, no order as to costs.
Mr Tam, thank you very much indeed for your very considerable assistance
in the case.
MR TAM: My Lord, I am grateful.
MR JUSTICE SCOTT BAKER: It is not an easy case, and I am greatly
appreciative of your arguments, and I hope I have dealt with them all in the
argument.
MR TAM: My Lord, I hope only that it was more interesting than boring,
given the dry subject matter of it.
MR JUSTICE SCOTT BAKER: Too interesting at times.
MR TAM: I am grateful.
© 2001 Crown Copyright
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