Akewushola v Secretary of State for the Home Department

For a person claiming a right of abode, section 3(9) of the Immigration Act 1971 prescribes the documentary means of proof: a current United Kingdom passport of the specified description or a certificate of entitlement. Section 33(1)'s definition of a United Kingdom passport as a current passport applies without modification. The statutory appeal does not permit proof of the underlying right by other admissible evidence. It may determine preliminary issues such as forgery, impersonation and whether a passport is current. A statutory immigration tribunal has no implied power to rescind or review a determination after it has been made, beyond correcting non-substantive accidental errors. Procedural irregularities capable of affecting the result must be taken to the High Court.

The appellant arrived at a United Kingdom port with a current Nigerian passport and an expired United Kingdom passport issued to a child of her name. An immigration officer refused leave to enter because she lacked a qualifying United Kingdom passport and entry clearance. An Adjudicator dismissed her appeal, and the Immigration Appeal Tribunal upheld that decision in the appellant's absence after an adjournment request was overlooked. The Tribunal chairman later purported to rescind that determination and order a rehearing. A differently constituted Tribunal declared that order a nullity. The Court of Appeal considered appeals against both Tribunal decisions. The central questions were whether the appeal permitted proof of a right of abode by means other than those prescribed by section 3(9), and whether a chairman or full Tribunal could rescind a determination.

1. Disposition. Lord Justice Sedley delivered the leading judgment. Lord Justice Laws and Lord Justice Peter Gibson agreed. Both appeals were dismissed.
2. Proof of right of abode. Section 13(3) of the Immigration Act 1971 limits an appeal on the ground of a right of abode to a person holding the passport or certificate specified in section 3(9). The appeal does not permit proof of the underlying right by other admissible evidence. The definition in section 33(1), requiring a United Kingdom passport to be current, applied to section 3(9). No contextual reason justified removing that requirement. The expired passport therefore did not provide the prescribed means of proof.
3. Section 13(3) was not rendered meaningless. Issues such as forgery, impersonation and whether a passport was current could be determined within the appeal process as preliminary issues under Rules 8(3) and 11(1) of the Immigration Appeals (Procedure) Rules 1984. Section 22(4) of the Act also recognised an appeal concerning forgery.
4. The executive's issue of passports and certificates remained subject to the High Court's supervisory jurisdiction. Temporary admission could allow curable documentary deficiencies to be remedied. The court stated that no different standards could be applied according to an entrant's ethnicity or appearance. It declined to determine whether an extra-statutory dispensing power could permit an expired passport to be disregarded.
5. Rescission and review. Rule 42 exhaustively defined a chairman's powers. It gave no power to rescind a determination. Rule 38 permitted procedural irregularities to be cured before a decision was reached; thereafter only accidental errors without substantive effect could ordinarily be corrected. A statutory tribunal did not ordinarily possess an inherent power to rescind or review its own or another tribunal's decision. The procedural powers in Rules 28, 34(2), 34(3) and 37 did not imply such an internal power. Recourse for a procedural error capable of affecting the outcome lay to the High Court, subject to any unequivocal statutory exclusion.
6. The Pearl Tribunal therefore lacked power to declare the Quinn determination a nullity, but was correct to regard itself as without jurisdiction to conduct a fresh hearing. The court left open whether a decision plainly made without power could simply be ignored or first had to be quashed by the High Court. The formal order dismissed the appeals with costs, subject to the legal-aid condition, and refused permission to appeal to the House of Lords.

1. Court of Appeal (Civil Division): dismissed the appeals against both Immigration Appeal Tribunal decisions and refused permission to appeal to the House of Lords: [1999] EWCA Civ 2099.
2. Immigration Appeal Tribunal: upheld the Adjudicator's dismissal of the appeal on 23 February 1998. Its chairman later purported to rescind that determination and direct a fresh hearing. A differently constituted Tribunal declared the rescission order a nullity on 4 September 1998.
3. Adjudicator: dismissed the appellant's appeal on 12 June 1997.