Tribunal decisions

The decision

DJ (Defective Notice of Decision) Iraq [2004] UKIAT 00194

IMMIGRATION APPEAL TRIBUNAL

Date: 11th June 2004
Date Determination notified:
15 July 2004

Before:

Mr Justice Ouseley (President)
Mr C M G Ockelton (Deputy President)
Mr D J Parkes (Acting Vice-President)

Between:

APPELLANT

and

Secretary of State for the Home Department
RESPONDENT

Appearances:
For the Appellant: Mr N Stanage, instructed by Fisher Jones Greenwood
For the Respondent:Mrs Giltrow, Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellant is an Iraqi Kurd who claimed asylum on arrival in the United Kingdom on 1st December 2001. His claim was refused on 4th March 2002. His appeal on human rights and asylum grounds was dismissed by the Adjudicator, Mr G Dearden, in a determination promulgated on 8th January 2003.

2. The basis of the Appellant’s claim was that he was at risk from Saddam Hussein, and in the KAA that he would be at risk from the PUK and KDP. His claim was disbelieved. The Notice of Decision to issue Removal Directions contained in the usual form a statement:

“You are:
A) an illegal entrant as defined in section 33(1) of the Immigration Act 1971;
B) a person subject to administrative removal in accordance with section 10 of the Immigration and Asylum Act 1999 as:
i) a person who has failed to observe a condition attached to leave to enter or remain; or
ii) a person who has obtained leave to remain by deception; or
iii) directions have been given to a person to whose family you belong
I have therefore issued directions for your removal to IRAQ”

Besides the letters A and B respectively, there was a box for ticking which of the options was applicable. Neither box was ticked. The statement as to the Right of Appeal included as the second bullet point “If you are appealing on asylum grounds, you also have a right to appeal before removal on the grounds that on the facts of your case there is in law no power to give [Directions] on the ground on which they are given”. The letter accompanying the Notice of Decision said “you are an illegal entrant”.

3. The sole issue now in the appeal to the IAT is as to the effect in the circumstances of this case of the blank tick boxes in the Notice of Decision. This was not an issue in the grounds of appeal to the Adjudicator, but it was raised before him and considered by him.

4. The Appellant argued that no valid Notice of Decision had been given and no reason or grounds for removal had been given either. The argument was rejected on the basis of the Tribunal decision in Hussain [2002] UKIAT 03419. This is accurately summarised in paragraph 77 of the determination as follows:

“The Tribunal in Hussain held that the failure to tick boxes was not fatal to the Adjudicator’s jurisdiction in the appeal for three reasons:

(1) The Appellant is notified broadly speaking that he is a person who is removable. There is no indication in the notices regulations of the level of detail which has to be given. There is no definition of notice in the Procedure Rules and in particular notice is not defined as a notice which complies in all aspects with the notices regulations.

(2) The requirement of giving a notice of decision and the contents of that notice contained in the notices regulations are predicated on the existence of the decision which is appealable. It seems to follow from these considerations that the right of appeal exists prior to the giving of the notice and survives any defect in the notice of decision. The requirements of the notice of decision are not mandatory and compliance in all respects with the notices regulations is not a pre-condition to a valid appeal.

(3) The Appellant exercised his right of appeal against the notice. In those circumstances the Tribunal held that the Appellant had waived any error or incompleteness in the notice of decision.”

5. Before us, Mr Stanage was very brief because he recognised that it was unlikely that the Tribunal would disagree with its decision in Vijayasekaram [2002] UKIAT 01391 to the effect that a similar deficiency was remedied by the accompanying letter, which, as here, made clear on which ground the Secretary of State had taken the decision. Mr Stanage wished to take that issue further.

6. Mr Stanage submitted that the Immigration and Asylum Appeals (Notices) Regulations 2000 SI 2246 required the reason for the decision to be notified and that without such reason being given, no decision had in effect been taken or, if so, it had no known basis. Paragraph 1(2) of Schedule 4 to the 1999 Act, which provides that a statement in the Notice of Decision in accordance with the Regulations is conclusive as to the person by whom and the ground on which any decision or action was taken, meant that no valid ground for a decision had been given here.

The relevant provisions

7. The Notices Regulations require in Regulation 4(1) that the decision-maker must give written notice to a person of any appealable decision taken in respect of him. Regulation 5 requires that such a notice include a statement of the reasons for the decision to which it relates. We note that the new Notices Regulations 2003 SI 658 would now cover the position for sure because Regulation 5(1) provides that the notice should include or be accompanied by a statement of the reasons for the decision to which it relates. The absence of such a provision in the 2000 Notices Regulations does not necessarily show however that the Tribunal decision in Vijayasekaram is wrong.

8. It is clear that the Regulations draw a distinction between the decision itself and the notice of it. The significance of notice of a decision as opposed to the decision itself, in this decision-making framework, can be seen in the 2000 Procedural Rules. Rule 6(1) provides:

“Where an Appellant makes an appeal within the United Kingdom, notice of appeal shall be given not later than 10 days after the notice of the decision was received.”

Rule 6(3) provides:

“’decision’ means the decision against which the appellant is appealing.”

Time thus runs from the notice of the decision rather than from the taking of the decision itself.

9. We note that the first reason for the decision in Hussain was that the absence of a tick in any box was not fatal, because the Appellant knew broadly that he was removable. Whilst we recognise that the Notice of Decision tells him of that broad position, there is a statutory requirement that the reason for that decision be given in the notice of the decision which is being notified (our emphasis). In the absence of a tick in any box, that requirement on these forms is not satisfied, subject to what we say later about substantial compliance. It cannot be said that the requirement is satisfied simply because the reason is one or other of those printed on the form, without destroying the very purpose of the statutory requirement in the first place.

10. It might be that the Secretary of State could expressly say that the reason was A, or alternatively, was B, but that is not in fact the position here. Here, he had a specific reason in mind as the accompanying letter showed and which the statutory provisions required him to indicate on the Notice of Decision by ticking box A.

11. If a recipient wished to take advantage of the Secretary of State’s omission, he would be entitled to rely on it as preventing time running for appealing against the underlying decision. This is the effect of Rule 6 of the 2000 Procedure Rules. It is clear that it is Notice of the Decision, which must mean notice which complies with the Notices Regulations, which causes time for the appeal to start running.

12. We do not accept that paragraph 1(2) of Schedule 4 to the 1999 Act is of any relevance. The fact that the statement in the Notice is conclusive as to the reason for the decision, does not mean that the absence of the statement is conclusive that there were no reasons. It is possible, as here, for reasons to be shown in a document other than the Notice of Decision, even though the giving of reasons in that other document does not remedy the deficiency in the Notice of Decision.

13. The suggestion that the fact that neither box was ticked means that there were no grounds for the decision is quite wrong. There are grounds for the decision as the accompanying letter showed. For purposes other than compliance with the Notices Regulations, nothing precludes the letter being relied on as showing the ground for the decision. Still less does the absence of a tick mean that there was no decision. Both the Notices Regulations and the Procedure Rules show that there is a clear distinction between the decision and notice of it.

14. There is no reason why a defective notice should not lead to a valid appeal if in fact an appeal is lodged based on that defective notice. This is not the same as requiring an appeal to be made on it. The insertion of the specific reason is a procedural requirement for the benefit of an Appellant, capable of being waived by sending in a notice of appeal and persisting in the appeal. So we agree largely with the second and third reasons when run together, given by the Tribunal in Hussain, but subject to the proviso that if the defect is relied on by not appealing, the recipient is entitled to require proper notice of the decision to be given to him before time for appealing runs against him.

15. The correct approach to the effect of non-compliance with such a requirement, placed there for the Appellant’s benefit, can be seen from R v SSHD ex parte Ravichandran and Jeyeanthan [2000] 1 WLR 354, Court of Appeal. This concerned the failure by the Secretary of State to use the prescribed form for applying for leave to appeal to the Tribunal. The only practical consequence was the omission of the declaration of truth. The Respondents argued that the appeal to the IAT and therefore the IAT’s decision in the appeal was a nullity. Lord Woolf MR cited extensively from the well known passage in the speech of Lord Hailsham in London and Clydeside Estates Limited v Aberdeen District Council [1980] 1 WLR 182, pages 188-190.

16. Lord Hailsham pointed out that the decisions as to the legal consequences of non-compliance with statutory requirements were a spectrum varying from fundamental failings, so that no legal consequences arose from the ineffective decision, to trivial defects in procedure which the subject could not rely on at all. “Mandatory” and “directory” were not the two categories into which all obligations had to fit, with specific and different consequences following from the category into which each particular defect was placed. Lord Woolf pointed out that although in that case there had been total non-compliance with a mandatory requirement in the decision document, the document was not a nullity in the sense that it was incapable of being the foundation of valid proceedings. Lord Woolf divided the issues up as follows:-

“(a) Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question).

(b) Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case? (The discretionary question.) I treat the grant of an extension of time for compliance as a waiver.

(c ) If it is not capable of being waived then what is the consequence of the non-compliance? (The consequences question.)

Which questions arise will depend upon the facts of the case and the nature of the particular requirement. The advantage of focusing on these questions is that they should avoid the unjust and unintended consequences which can flow from an approach solely dependent on dividing requirements into mandatory ones, which oust jurisdiction, or directory, which do not. If the result of non-compliance goes to jurisdiction it will be said jurisdiction cannot be conferred where it does not otherwise exist by consent or waiver.”

17. Taking those in turn, the requirement to be complied with, so far as relevant here, is not the general requirement in the Notice Regulations as to the overall content of the Notice of Decision but the requirement that the reason be specified. This requirement can be very simply met. It is difficult in a sense with those forms to see what could be substantial compliance which did not constitute a total compliance, looking at that particular requirement in isolation. It would be met by a tick in the box. The only way in which it could be said that there was partial but substantial compliance if there were no tick in the box is that the accompanying letter gave the relevant reasons. The purpose of the requirement is that the Appellant should know the reason for the decision and at the same time as he receives the decision. On that basis the two documents, the Notice of Decision and the accompanying letter, can be read together and it would be obvious to the recipient what the reason was. The omission would be to put it on one piece of paper rather than another. As happened here, it was obvious to the Appellant what the position was, because his grounds of appeal to the Adjudicator did not raise that issue although they raised many others.

18. So it is our view that the requirement in the Notice Regulations can be fulfilled by substantial compliance and there has been substantial compliance as Vijayasekaram contemplated through the accompanying letter. We do not base our view as to substantial compliance on the fact that the other parts of the requirements in the Notice Regulation were met. The requirement for the giving of the reason is a separate requirement from other requirements and it is substantial compliance with that requirement which has to be demonstrated. Although the accompanying letter is not the Notice of Decision, it is nonetheless close to being part of it and certainly would be read with it; it makes very little difference to the fulfilment of the statutory objective if the reason is in an accompanying letter rather than set out in the Notice itself. This means that where the accompanying letter sets out the reason, time for appealing runs from the receipt of the Notice and letter. Nonetheless, the Secretary of State should comply fully with the Regulations, which means that on these forms, a box should be ticked.

19. Alternatively, the requirement is both waiveable and was in fact waived here. It is for the Appellant’s benefit that the reason is required to be given and it may affect a particular ground of appeal. An Appellant can proceed to appeal upon such a deficient Notice rather than wait for a Notice correct in all respects because it may be beneficial to him to do so. It is certainly waiveable at least where the letter accompanying the Notice of Decision gives the reason for decision and can be read with it. So the deficiency is in law waiveable.

20. In the circumstances of this case it was in fact waived by the pursuit of the appeal by the Appellant. The only other reaction which he could have chosen (if we are wrong about substantial compliance) was to wait until he received a Notice of Decision in perfect form, but he chose not to do that. It is not open to him to launch an appeal on a variety of grounds and include as one of his arguments on the appeal that he ought not to be appealing when he has done so. His acts showed that there was no prejudice to him and that he wished to get on with the appeal.

21. Accordingly, even though the Notice of Decision was defective, the existence of the accompanying letter meant that there was substantial compliance with the Regulations; even if that is wrong, the Appellant has plainly waived the deficiency.

22. For those reasons this appeal is dismissed. It is reported for what we say on that issue.

MR JUSTICE OUSELEY
PRESIDENT