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Review and appeal in administrative law—what is happening to the right of appeal in immigation law?

Published online by Cambridge University Press:  02 January 2018

Satvinder S. Juss
Satvinder S. Juss*
Affiliation:
Cardiff Law School
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Extract

The purpose of this article is to examine the impact of two recent decisions on an immigrant’s right of appeal: Secretary of State for the Home Department v Sonia Mahli was decided in the Court of Appeal in December 1989 and R v Secretary of State for the Home Department, ex p Oladehinde was decided by the House of Lords in October 1990. Both cases raised other substantive issues of considerable importance for public lawyers: Oldehinde made the important point that the Secretary of State for the Home Department could delegate to senior immigration officers his powers to make deportation decisions; Malhi demonstrated how limited are the natural justice rights of overstayers.

Type
Research Article
Information
Legal Studies , Volume 12 , Issue 3 , November 1992 , pp. 364 - 376
Copyright
Copyright © Society of Legal Scholars 1992

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References

1. [1990] 2 WLR 92, [1990] Imm AR 275.

2. [1991] AC 254, [1991] Imm AR 111.

3. Ibid, pp 294E–F, 295F–296C, 303E–G, 304F.

4. It was held that there could be no right to an interview in every deportation case: op cit, at pp 939E–G, 940H–941A, 943F–G.

5. The Bill was first introduced in the last parliamentary session, the Queen's Speech announcing the Bill being made on 31 October 1991 (see The Guardian, 31 October 1991). There was to be a fast-track arrangement for appeals for supposedly unmeritorious applicants whose cases were to be decided on paper without an oral hearing. Criticism from churchmen, lawyers and the United Nations led by January 1992 to the government apparently accepting the need for extended rights of appeal for asylum seekers (see The Guardian, 10 January 1992). By February the government had decided to allow the ‘green form’ legal aid system to be retained for them (see The Guardian, 11 February 1992). The Bill is now to be reintroduced again following the Election where further concessions are expected (see The Times, 7 May 1992).

6. The number of asylum applications increased from 5,000 in 1988 to 15,000 in 1989 and about 30,000 in 1990 (see The Guardian, 31 October 1991). 1991 saw 44,743 applicants but this year the applications have fallen by more than half that figure (see The Times, 7 May 1992). World problems in Eastern Europe, the Middle East and Africa have been cited as one reason for this increase (see The Independent, 8 February 1991, and The Times, 29 May 1991. The Head of the Foreign and Commonwealth Office (Migration and Visa Dept) puts this movement down to a ‘vastly greater volume of people wanting to travel today, either wanting to travel or wanting to travel and settle’ (see the Home Office (Fifth Report) ‘Administrative Delays in the Immigration and Nationality Department’ (7 June 1990) HC 319, p xi, para 30).

7. Under the Immigration Act 1971, s 3(5)(a), as amended, ‘A person who is not a British citizen shall be liable to deportation from the United Kingdom - (a) if having only a limited leave to enter or remain he does not observe a condition attached to the leave or remains beyond the time limited by the leave.’.

8. Such a right existed under s 15(1) of the 1971 Act which read:‘… a person may appeal to an adjudicator against - (a) a decision of the Secretary of State to make a deportation order against him by virtue of s 3(5) above.’.

9. Per Mustill LJ, op cit, at 940H.

10. Per Stuart-Smith LJ, op cit, at 943D–F.

11. This argument won before Woolf J in the High Court, who found immigration officers to be ‘a wholly distinct office’ from other officials of the Home Office Dept, and held that Parliament could not have intended them to play a part in deportation decisions.

12. The devolution of responsibility in this respect has, as their Lordships pointed out, been recognised as a practical necessity in the administration of government in Carliona v Commissioner of Works [1943] 2 All ER 560.

13. At 304–305G–B.

14. See Juss, S. ‘Suspects Right and PACE; Can the courts do the balancing trick?’ (1990) Statute Law Review, Vol 11, No 3, pp 211–226 CrossRefGoogle Scholar.

15. At 301G.

16. At 305D–E.

17. At [1990] 2 WLR 927.

18. Until a few years ago these appointments used to be made by the Secretary of state for the Home Department. The Council on Tribunals (Annual Report, 1981–82) recommended that the Lord Chancellor make the appointments.

19. See Report of the Committee on Immigration Appeals (August (1987) Cmnd 3387, at p 28.

20. See the Immigration Appeals (Notices) Rules 1984, SI No 2040 and Immigration Appeals (Procedure) Rules 1984, SI No 2041.

21. See R v IAT, ex p Rashida Bi [1990] AR 348.

22. Ibid.

23. See Bahar v IAT [1988] Imm AR 574. In fact, the High Court has also held that an adjudicator's determination is not res judicata but is nearly so, in R v IAT, ex p Lulu Miah [1989] Imm AR 423, QBD.

24. R v an Adjudicator, Mr R A Care, exp Secretary of State for the Home Department [1989] Imm AR 423, QBD.

25. Section 20(1) states that ‘… 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 been made by the adjudicator.

26. Section 19(4) makes the whole of s 19 equally applicable to the Tribunal with the substitution of references to the Tribunal for references to an adjudicator.

27. On the rule of law, see de Smith, who states that ‘the concept is usually intended to imply (i) that the powers exercised by politicians and officials must have a legitimate foundation; they must be based on authority confered by law; and (ii) that the law should conform to certain minimum standards, both substantive and procedural’: Constitutional and Administrative Law (London, (1990) at p 19.

28. See Dawood Mohd Patel v Secretary of State for the Home Department [1990] Imm AR 478 at 485.

29. See Aujla (6549) (unreported), but cited in Sonia Malhi, op cit..

30. See Balluza (6589) (unreported) quoted in Dawood Mohd Patel op cit..

31. Per Griffiths LJ at 305A in Oladehinde..

32. See Hawa Bibi Uddin v IAT [1989] Imm AR 134. Also see R v IAT, ex p L Ron Hubbard [1985] Imm AR 110 and ECO, Bombay v BHA Patel [1991] Imm AR 147.

33. R v IAT, ex p Hussanin [1986] Imm AR 502.

34. Balluza (6589) (unreported), quoted in Dawhood Mohd Patel, op cit..

35. Dawood Mohd Patel, op cit. Also see Somasundaram v ECO, Colombo [1990] I mm AR 16.

36. Malhi, op cit, at 943D.

37. Report of the Committee on Immigration Appeals (August (1967) Cmnd 3387 at p 27–30.

38. Malhi, op cit, at 940D.

39. R v IAT, ex p Bakhtaur Singh [1986] 1 WLR 910at 919 (cited by Stuart-Smith at 942E in Malhi).

40. At 942H.

41. R v IAT, ex p Alam Bi [1979–80] Imm AR 146, CA.

44. Per Lord Denning MR in R v Industrial Injuries Commissioners, ex p Amalgamated Engineering Union [1966] 1 All ER 97 at 101. Also see R v National Insurance Commissioners, ex p Michael [1976] 1 All ER 566 at 569.

43. See Boots the Chemist (New Zealand) Ltd v Tews Pharmacy Ltd [1974] NZLR 890 at 905.

44. See Re an appeal from the Credit Tribunal by John Martin & Co Ltd [1974] 8 SASR 237 at 267.

45. R v IAT, ex p Motahir Ali (1981) 29 January (unreported) QBD.

46. R v IAT, ex p Zaman [1982] Imm AR 61 at 64, QBD.

47. Loc cit..

48. Malhi at 943D.

49. Swati v Secretary of State for the Home Department [1986] 1 WLR 417. (See the author's criticism of this case: ‘Judicial review and the duty to give adequate reasons’ (1986) CLJ Nov at p 372.) Also see Johny Suarez v Secretary of State for the Home Department [1991] Imm AR 54 (esp Ralph Gibson J at 58). A different approach to these cases, however, was taken by Schieman J in R v Secretary of State for the Home Department, ex p Frieda Hindjou [1989] Imm AR.

50. R v IAT, exp L Ron Hubbard [1985] Imm AR 10. Also E Yaansah, ‘The fresh evidence principle in immigration appeals’ (1991) NLJ, 12 April, p 488.

51. Ali Celik v Secretary of State for the Home Department [1991] Imm AR 8 and Narin v Secretary of state for the Home Department [1990] Imm AR 403.

54. Section 19 states the adjudicator ‘shall allow the appeal’ if a decision is not in accordance with the law or a discretion should have been exercised differently.

53. Fawehimi v Secretary of State for the Home Department [1991] Imm AR 1.

51. Ladha v Secretary of State for the Home Department [1988] Imm AR 284 (where the issue was whether or not a nephew existed on whom the applicant couple could rely as his dependants). Also see Mohd Jaffrey v Secretary of State for the Home Department [1990] Imm AR6.

55. (Unreported) July 1992, DC.

56. See Partington, M., ‘The Reform of Public Law in Britain: Theoretical Problems and Practical Considerations’, in Law Legitimacy and the Courts (ed by McAuslan, P. and McEldowney, J. F.) (London, (1985) pp 191–211 at p 195.Google Scholar

57. Ibid. See the reference, for example, to the Administrative Appeals Tribunal in Australia at p 204.

58. See Juss, S, ‘Rule-Making and the Immigration Rules - A Retreat from Law?’ (1992) Statute Law Review, Vol 13, No 2, pp 150–164 CrossRefGoogle Scholar.

59. H C Official Report, Standing Committee B 15 May 1971) at col 1508.