R v Secretary of State for the Home Department, Ex p Jeyeanthan (Jeyeanthan, Ex parte, Ravichandran v Secretary of State for the Home Department)

Failure to comply strictly with a procedural requirement does not, without more, render subsequent proceedings a nullity. The mandatory or directory classification is at most a starting point. The court must construe the statutory scheme and consider substantial compliance, whether the defect may be waived or cured, and the just consequence of non-compliance.

A material departure from a prescribed form may prevent substantial compliance. Yet an irregularity in a timely application may still be cured where the rules confer a power to amend or cure irregularities. Time limits are different where the rules make no provision for their extension. Procedural requirements exist to further justice, and a technical defect causing no prejudice will not ordinarily defeat a tribunal's jurisdiction.

These conjoined appeals concerned applications for asylum by Mr Jeyeanthan and Mr Ravichandran. In each case, a Special Adjudicator allowed the asylum claim. The Immigration Appeal Tribunal allowed the Secretary of State's appeal after the Secretary of State had sought leave by letter rather than on prescribed Form A2.

The letter contained the material information but omitted the form's declaration of truth. In Mr Jeyeanthan's case, Sedley J granted judicial review, holding that the defective application made the Tribunal's decision a nullity. Mr Ravichandran appealed directly from the Tribunal after raising the same point by amendment.

The common issue was whether failure to use the prescribed form, and in particular omission of the declaration, invalidated the grant of leave and the Tribunal proceedings.

1. Appeals determined unanimously. Lord Woolf MR, with whom Lord Justice Judge and Lord Justice May agreed, allowed the Secretary of State's appeal in Jeyeanthan and dismissed Mr Ravichandran's appeal.

2. The court rejected a rigid approach which treats every procedural requirement as conclusively either mandatory or directory. The governing question is the consequence which the rule-maker intended for the particular non-compliance, assessed from the language and scheme of the rules and the circumstances of the defect. The court should consider substantial compliance, waiver or curability, and the just consequence of non-compliance.

3. The Secretary of State's letter was not substantially to the like effect as Form A2. A form containing a declaration of truth and one without it were materially different. The same standard had to apply to an asylum seeker and to the Secretary of State. The court therefore agreed with Sedley J on substantial compliance and held that ex parte Nichalapillai had been wrongly decided.

4. That conclusion did not make the application a nullity. Rule 38 of the Immigration Appeals (Procedure) Rules 1984 treated non-compliance before decision as an irregularity which could be cured. The Tribunal could require the declaration to be supplied, including by amendment once leave had been granted. Its power to cure did not extend to an unextendable time limit, but a defect in the mechanics of a timely notice was different.

5. The omission neither deprived the Tribunal of jurisdiction nor prejudiced either asylum claimant. The Tribunal had accepted the applications, and Mr Ravichandran's participation in the hearing also amounted to an implied waiver. It would not have been a proper exercise of the Tribunal's powers to do more than allow a short period for rectification. The agreed consequential orders were made.

• Court of Appeal: In the conjoined appeals, the court allowed the Secretary of State's appeal in Jeyeanthan and dismissed Mr Ravichandran's appeal: [1999] EWCA Civ 3010.
• Queen's Bench Division (Crown Office List): Sedley J granted Mr Jeyeanthan judicial review, holding that the Secretary of State's failure to use the prescribed form rendered the Immigration Appeal Tribunal's decision a nullity.
• Immigration Appeal Tribunal: The Tribunal allowed the Secretary of State's appeals from the Special Adjudicators' decisions granting asylum. In Mr Jeyeanthan's case it remitted the matter for rehearing.