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BB (Right of Appeal - Decision as Determination) Zimbabwe [2004] UKIAT 00076

IMMIGRATION APPEAL TRIBUNAL

Date of Hearing: 13th February 2004
Determination delivered orally at Hearing
Date Determination notified:

13.02.2004

Before:

Mr C M G Ockelton (Deputy President)
Mr C P Mather (Vice President)
Mr A Jordan (Vice President)

Between:

APPELLANT

and

Secretary of State for the Home Department

RESPONDENT

DETERMINATION AND REASONS

1. The Appellant is a citizen of Zimbabwe. She seeks to appeal from a decision of an Adjudicator, Mrs C J Boyd, deciding that she had no valid appeal against the decision of the Respondent on 7th March 2002, refusing her leave to enter after refusing her asylum. Before us today she is represented by Mr Pipe, instructed by Rashid & Co, and the Respondent is represented by Ms Brown. We are grateful to them both for their submissions on the difficult issue of whether there is an appeal to the Tribunal against such a decision of an Adjudicator.

2. The position in the present case is that the Appellant entered the United Kingdom on 9th February 2002 and claimed asylum. She failed to return her forms to establish the claim and as a result of the lack of information the Secretary of State refused it. There was a right of appeal to the Adjudicator: the time limit for that appeal expired on 21st March 2002. The Notice of Appeal appears to have been served on 10th April 2002. That was well out of time.

3. Before the Adjudicator, there was no appearance by either side. The Adjudicator was satisfied that both parties had been served with notice of the hearing but, in any event, there was the Adjudicator thought no basis for her to extend time for the Notice of Appeal. She therefore decided as we have indicated that there was no valid appeal before her.

4. These proceedings are governed by the 1999 Act and the 2000 Rules. We will begin by setting out what we apprehend are the relevant provisions of the Act and of the Rules. Section 58 is headed “Appeals: General”:

“(1) The right of appeal given by a particular provision of this part is to be read with any other provision of this part which restricts or otherwise affects that right.

(4) Part III of Schedule 4 makes provision:
(a) with respect to the determination of appeals under this part, and
(b) for further appeals.

(5) For the purposes of the Immigration Acts, an appeal under this part is to be treated as pending during the period beginning when notice of appeal is given and ending when the appeal is finally determined, withdrawn or abandoned.”

5. Paragraphs 21 and 22 of schedule 4 are within Part III of that schedule. The part is headed “Determination of Appeals”.

“21(1) On an appeal to him under Part 4, an Adjudicator must allow the appeal if he considers:
(a) that the decision or action against which the appeal is brought was not in accordance with law or with any other Immigration Rules applicable to the case; or
(b) if 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 but otherwise must dismiss the appeal.
…

22(1) Subject to any requirement of rules made under paragraph 3 as to leave to appeal, any party to an appeal, other than an appeal under Section 71 to an Adjudicator, may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal.
(2) The Tribunal may affirm the determination or make any other determination which the Adjudicator could have made.”

6. The 2000 Rules are made under paragraph 3 of schedule 4. Rule 2 is headed “Interpretation” and contains definitions, including a definition of determination in the following terms:

“’Determination’ means the decision of the Appellate Authority to allow or dismiss an appeal and the reasons for that decision.”

Part 2 of the Rules is headed “Appeals to Adjudicators” and has the rules relating to such appeals including rules as to time. Rule 12 is the rule governing the proceedings before the Adjudicator in a case such as the present.

“12(1) Where the Respondent alleges that …

(b) the Notice of Appeal was not given within the period specified by Rule 6;
the Respondent shall send to the Adjudicator with the documents required under Rule 8 and to the Appellant and his representative (if he has one) a written statement setting out the allegation and the reasons for it and any relevant facts relating to it.”

7. We do not need to set out the parts of that Rule which relates to the Adjudicator’s procedure, but sub-rule 5 is as follows:

“(5) Where the Adjudicator determines as a preliminary issue that the Notice of Appeal was not given within the period specified by Rule 6, then, except where a deportation is in force, in respect of the Appellant, the Adjudicator may allow the appeal to proceed if he is satisfied that by reason of special circumstances it just to do so.”

8. So much for the statutory provisions. It is clear in the present case that although the document signed by the Adjudicator is headed “Determination and Reasons”, it does not allow or dismiss the Appellant’s appeal on its merits or at all. What it does is simply to decline to extend time. It is common ground, as we understand it, between the parties, that if that is in truth a determination as defined by Rule 2 or as intended by the relevant provisions of the 1999 Act, then it would amount to an implied dismissal of the Appellant’s appeal and would carry a right of appeal (subject, again, to requirements as to notice and time) to the Immigration Appeal Tribunal. If on the other hand, the document signed by the Adjudicator is not a determination as defined, it is difficult to see that there could be a right of appeal to this Tribunal.

9. The matter is very far from being clear. We were referred to paragraph 18.164 of Macdonald’s Immigration Law and Practice, 5th Edition. Footnote 6 to that paragraph lists a number of determinations of the Tribunal in which it had been decided that various types of decision by Adjudicators amounted to determinations for the purpose of the application of Section 20 of the Immigration Act 1971, which is the predecessor of the statutory provisions we have cited. However, those decisions were all made in the context of an Act and various Rules differing from the 2000 Rules. In particular, in the 1996 Rules, we find this:

“2(3)(a) an appeal is determined when written notice is sent of the decision whether or not the appeal should be allowed and expressions such as ‘determination’ and ‘notice of determination’ shall be construed accordingly.”

We have to decide whether under the 1999 Act and 2000 Rules, the judicial act of the Adjudicator in the present case was a “determination”.

10. We begin with section 58. As Mr Pipe pointed out, whatever else the document issued by the Appellant was, it does appear to have been a Notice of Appeal. He asks us to note that under section 58(5), an appeal is to be treated as pending during the period beginning when notice of appeal is given. If the notice in the present case is a notice within that provision, then he has, he says, a pending appeal before the Appellate Authorities. We are satisfied that section 58(5) is to be read as referring only to a notice of appeal which either begins as valid and in time, or is later accepted by the Respondent as in time, or is treated by the Adjudicator either as in time, or as one in which there are special reasons for allowing the appeal to proceed. In other words, we do not read section 58(5) as applying to a Notice of Appeal which is not a valid, in time notice. The reason for that is as follows. While an appeal is pending there are restrictions on the right of the Secretary of State to remove an Appellant from the United Kingdom. As is well known, provisions of the Immigration Acts are sometimes subject to abuse. Without wishing to make any such accusation in the present case, it is clear that to allow an unsuccessful Applicant to inhibit his removal automatically by putting in an invalid Notice of Appeal, long after the time fixed for putting in such a notice, would enable, and possibly indeed encourage abuse. Section 58(5) does not therefore in our judgment assist the Appellant in this case.

11. There are two other matters to which we should draw attention. One is that we are aware that the Court of Appeal has held that the decision of the Tribunal that an application to it for permission to appeal to that Court is out of time, amounts, for the purposes of the jurisdiction under paragraph 23 of the 1999 Act, to a refusal of leave. That decision is distinguishable from the present case. There was no doubt that there was a valid appeal before the Immigration Appellate Authorities.

12. Another possible comparison is with a case where the Adjudicator decides that, for some reason other than time, there is no valid appeal before him: for example, if an Adjudicator decides that the appeal is one which an Adjudicator has no discretion to hear. Those circumstances, as it appears to us, are again different from the present. If an Adjudicator decides that there is no jurisdiction to hear an appeal for some reason other than time, then it is right that that decision should be subject to examination and re-determination by the Tribunal, because what the Adjudicator may have done is to decline to hear an appeal which was in fact valid and pending before him. In the present case, unless the Adjudicator decides to exercise an inclusionary discretion in order to hear an appeal which at its inception is invalid, then there is no appeal before the Adjudicator.

13. For those reasons, we find that we are not assisted in the Appellant’s favour by any of the matters which have arisen during the course of this hearing. It is our view that the definition of “determination” in Rule 2 is intended to limit the right of appeal to the Tribunal to those decisions which in effect put an end to a valid appeal before the Adjudicator. The definition is intended to exclude an appeal to the Tribunal on any interlocutory decision by the Adjudicator, and it is also in our view intended to exclude an appeal to the Tribunal in cases where the Adjudicator’s decision is simply that there has never been any valid appeal to the authority, because the notice of appeal was out of time and time should not be extended.

14. It follows that our decision is that the Tribunal has no jurisdiction to hear an appeal against the Adjudicator’s decision in this case. We apprehend that the appropriate route of challenge to an Adjudicator’s decision of this nature would be by judicial review. In the present case, of course, that is itself, a procedure which may be affected by the passage of time. We should also add that this decision is specifically an interpretation of the 1999 Act and the 2000 Rules, not the 2002 Act and the 2003 Rules.

C M G OCKELTON
DEPUTY PRESIDENT