Bubaker v Lord Chancellor & Ors

A procedural rule is not ultra vires merely because it facilitates the removal of unsuccessful asylum appellants, provided that it is capable of lawful operation and falls within the statutory rule-making power. Service of a determination through the Secretary of State does not create actual or apparent bias where the adjudicator has no part in notification and an informed observer would know that service cannot affect the decision.

The executive must nevertheless exercise the rule consistently with rights of review, appeal and access to the court. A possible future unlawful use of a valid rule does not invalidate the rule itself; it may instead found a challenge to its application.

The applicant made an asylum appeal after being refused leave to enter the United Kingdom. The Secretary of State certified the claim under Schedule 4 to the Immigration and Asylum Act 1999. Before his appeal was heard, he sought to challenge the validity of amended procedure rules under which, in specified unsuccessful certified asylum appeals, the adjudicator’s determination would be sent first to the Secretary of State for service on the appellant.

His Honour Judge Wilkie, sitting in the Administrative Court, refused permission to seek judicial review on 15 March 2002. The applicant renewed his application for permission to appeal. He contended that the rule created actual or apparent bias and impaired access to legal representation, appellate remedies and the court.

Disposition

1. The Court of Appeal unanimously refused the renewed application for permission to appeal. Lord Justice Laws gave the principal judgment, with which Lord Justice Clarke agreed. The challenge to the validity of the amended notification rule was not arguably made out.

2. The rule did not create actual bias. Although an adjudicator’s determination is legally incomplete until service or notification, the adjudicator’s decision-making function is complete when the decision is made. The adjudicator has no role in the subsequent notification process.

3. Applying the apparent-bias test in Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, a fair-minded and informed observer would know that the method of service cannot affect the adjudicator’s substantive determination. The rule therefore created no real possibility of tribunal bias.

4. The rule was within the power in paragraph 3 of Schedule 4 to the Immigration and Asylum Act 1999. Its purpose was to assist the execution of removal decisions by preventing unsuccessful appellants from absconding after notification. That purpose did not of itself make the rule ultra vires.

5. The rule could be operated consistently with all statutory and common-law rights available to an appellant. The possibility that it might later be operated unlawfully, including by impeding access to legal advice, review, appeal or judicial review, did not affect its validity. Concrete complaints about its future operation would require determination on their own facts.

6. Lord Justice Clarke emphasised that the Secretary of State could not lawfully use the rule to interfere with an appellant’s access to legal process. In particular, removal before expiry of the agreed ten-day period for relevant review or appeal rights could be susceptible to judicial review. No such application or policy challenge was before the court.

• Court of Appeal (Civil Division). The renewed application for permission to appeal was refused: [2002] EWCA Civ 1107.
• Administrative Court (Queen’s Bench Division). His Honour Judge Wilkie refused permission to seek judicial review on 15 March 2002.