R v Secretary of State for the Home Department, Ex p Saleem (Saleem, Ex p)

A general power to regulate the exercise of a statutory right of appeal does not authorise subordinate legislation which, through an irrebuttable deeming rule and an unextendable time limit, can extinguish that right although the appellant has received no actual notice through no fault of their own.

Such an interference with access to an independent appellate tribunal requires express statutory authority or necessary implication. It must also be reasonably necessary and proportionate to the procedural objective. Rule 42(1)(a) of the Asylum Appeals (Procedure) Rules 1996 was therefore invalid only so far as it conclusively deemed receipt of a special adjudicator’s determination for the five-day period for seeking leave to appeal.

Mrs Saleem sought asylum and appealed against removal directions. After her former solicitors failed to comply with directions, a special adjudicator dismissed the appeal as abandoned. The Immigration Appeal Tribunal refused her later application for leave to appeal because, under rule 42(1)(a) of the Asylum Appeals (Procedure) Rules 1996, the determination was conclusively deemed received two days after posting, and rule 13(2) allowed only five days to apply.

Mrs Saleem maintained that neither she nor her former solicitors had received the determination. Hooper J granted judicial review and held rule 42(1)(a) ultra vires. The Secretary of State appealed. The central issue was whether the rule-making power in section 22 of the Immigration Act 1971 authorised an irrebuttable presumption which could bar an appeal where the appellant had no actual notice.

Disposition

The Court of Appeal unanimously dismissed the Secretary of State’s appeal. It declared rule 42(1)(a) of the Asylum Appeals (Procedure) Rules 1996 outside the power conferred by section 22 of the Immigration Act 1971, and of no effect, so far as it deemed receipt of a special adjudicator’s determination for the purpose of the five-day limit for seeking leave to appeal.

1. Roch LJ held that the right of appeal under section 20 was a basic and fundamental right, akin to access to a court. Following the principle in Raymond v Honey (1983) AC 1 and R v Secretary of State for the Home Department, Ex p Leech [1994] QB 198, interference with such a right required express statutory authority or necessary implication.

2. Section 22 authorised rules regulating an appeal, including time limits, service procedures, and obligations to keep an address current. It did not authorise the combined operation of rules 13(2) and 42(1)(a), which could irrevocably remove the appeal although the appellant could prove that, without fault, the determination had never been received.

3. Mummery LJ emphasised that a person can appeal under section 20(1) only if dissatisfied with the adjudicator’s determination. That language presupposed actual notification sufficient to know both that a determination existed and its nature. An irrebuttable deeming rule that prevented this went beyond regulation and removed the statutory right.

4. Hale LJ agreed, but confined the declaration to notifications of adjudicators’ determinations. The vice was the combination of a short, unextendable time limit with an irrebuttable presumption of receipt. The Court expressed no view on rule 42(1)(a) in other contexts.

5. Section 7 of the Interpretation Act 1978 consequently governed service. The factual question whether Mrs Saleem could rebut its presumption was remitted to the Tribunal, which was to decide timeliness and, if appropriate, leave to appeal.

• Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed. The Court confined the invalidity of rule 42(1)(a) of the Asylum Appeals (Procedure) Rules 1996 to the deemed receipt of a special adjudicator’s determination and remitted the application to the Tribunal.
• High Court, QBD Crown Office (Hooper J): On 1 October 1999, judicial review was granted and the Tribunal’s decision was quashed. Hooper J held that rule 42(1)(a) was ultra vires section 22 of the Immigration Act 1971.
• Immigration Appeal Tribunal: The Tribunal declined jurisdiction over the application for leave to appeal because it was out of time under rule 13(2) of the Asylum Appeals (Procedure) Rules 1996.