The applicant, a student had overstayed his leave. Through his solicitor’s negligence, he lost his appeal against deportation. He sought judicial review of that decision.
Held: Judgment obtained in a party’s absence due entirely to the fault of that party or his advisor was not one obtained in breach of the rules of natural justice for the purpose of judicial review. The loss of his right to be heard was not a procedural impropriety or denial of natural justice. Nor was he entitled to certiorari. In the public law context of removal from the jurisdiction of an alien, a litigant must answer for the failings of his legal advisers.
Lord Bridge said that any other decision would come ‘at the cost of opening such a wide door which would indeed seriously undermine the principle of finality in decision-making.’
The respondent was an Iraqi student who overstayed his leave to remain in the United Kingdom. When he was served with a notice of the Secretary of State’s decision to deport him he instructed solicitors to lodge an appeal. When a hearing date for the appeal was fixed the solicitors wrote to notify him of the date but negligently sent the letter to his previous address and the respondent never received it. The adjudicator subsequently dismissed the appeal on the basis of the documents before him since neither the respondent nor his solicitors had appeared. When the solicitors received notice of the dismissal they again misaddressed the communication intended to inform the respondent of the result, so that by the time he knew of the dismissal of his appeal it was too late for him to appeal further against the adjudicator’s decision. The respondent applied for, and was granted, certiorari to quash the adjudicator’s decision, the judge holding that he was bound by a previous decision of the Court of Appeal which decided that certiorari ought to be granted where the negligence of the applicant’s solicitors had deprived him of an oral hearing. The judge’s decision was affirmed by the Court of Appeal. The Secretary of State appealed to the House of Lords.
Held — A party to a dispute who had been afforded an opportunity of presenting his case to the person deciding the dispute but who had lost the opportunity to have his case heard through the fault of the legal advisers to whom he had entrusted the conduct of the dispute on his behalf could not complain that he had been the victim of a procedural impropriety or that natural justice had been denied to him, and it made no difference whether the matter in dispute raised private law or public law issues. Accordingly, the respondent was not entitled to judicial review of the adjudicator’s decision and the Secretary of State’s appeal would therefore be allowed.
Judges:
Lord Bridge, Lord Roskill, Lord Brandon, Lord Oliver, Lord Goff
Citations:
[1989] 3 WLR 1294, [1989] 3 All ER 843, [1990] 1 AC 876, [1989] UKHL 7
Links:
Bailii
Statutes:
Immigtaion Act 1971 21
Jurisdiction:
England and Wales
Citing:
Cited – Regina v West Sussex Quarter Sessions, ex parte Albert and Maud Johnson Trust CA 1973
. .
Overruled – Rahmani and Others v Diggines HL 20-Mar-1986
The Court of Appeal had overturned the rejection of an administrative appeal from a deportation decision, on the ground that there had been a denial of natural justice when the person involved in an administrative appeal did not attend the hearing . .
Overruled – Regina v Diggines, ex parte Rahmani CA 1985
R, had failed to attend the hearing of her appeal from a refusal to extend her stay in the UK. Her advisers had failed to note her new address and had been unable to notify her of the hearing. The appeal was dismissed in her absence. The adjudicator . .
Cited by:
Cited – Maqsood v The Special Adjudicator, The Secretary of State for the Home Department Admn 3-Dec-2001
The applicant sought judicial review of the decision to proceed with his appeal in his absence. He, his advisers and his witness had gone to the wrong court. The court had changed the venue from previous hearings, but the notice of hearing had not . .
Cited – Director of Public Prosecutions v Ayres Admn 20-Oct-2004
The prosecutor appealed a decision of the magistrates to dismiss the case for abuse of process, having failed to comply with several and repeated directions as to the management of the case. He said that he had not been given opportunity to make . .
Cited – Regina v Immigration Appeal Tribunal ex parte Haile CA 2002
The adjudicator in the asylum application had made a crucial mistake about the identity of the political party in Ethiopia, with which the claimant was connected. The error was not drawn to the attention of the IAT. The evidence necessary to prove . .
Cited – FP (Iran) v Secretary of State for the Home Department CA 23-Jan-2007
The claimants said that rules which allowed an appeal tribunal to proceed in their absence when they were absent through no fault of their own, were unlawful in depriving them of a fair trial. The claimants had each moved house but their former . .
Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Cited – Helena Partnerships Ltd v HM Revenue and Customs CA 9-May-2012
The company had undertaken substantial building works and sought associated tax relief. The court was asked whether, following a change in the company’s memorandum and articles of association, the company, a registered social landlord, remained a . .
Applied – Formosa Plastics Corporation USA v Chauhan and others CA 6-Apr-1998
The defendant sought a second adjournment of his application for leave to appeal against summary judgment for $21m with interest in respect of a judgment obtained in Texas. The defendant was said to have given his personal guarantee for the purchase . .
Lists of cited by and citing cases may be incomplete.
Judicial Review, Immigration, Natural Justice
Updated: 29 September 2022; Ref: scu.180545
