References: [1999] EWCA Civ 3010, [2000] 1 WLR 354, [1999] 3 All ER 231, [2000] Imm AR 10, [1999] INLR 241
Links: Bailii
Coram: Lord Woolf MR
Ratio:An appellant failed to use the prescribed form for his appeal, contrary to the Immigration Appeals (Procedure) Rules. There had not been substantial compliance with the Rules, although the irregularity had been waived by the Tribunal. In any event the irregularity could have been cured by the Tribunal under the Rules.
Held: The application for leave to appeal was not to be treated as a nullity.
Lord Woolf MR said: ‘I suggest that the right approach is to regard the question of whether a requirement is directory or mandatory as only at most a first step. In the majority of cases there are other questions which have to be asked which are more likely to be of greater assistance than the application of the mandatory/directory test: The questions which are likely to arise are as follows:
(a) Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question.)
(b) Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case? (The discretionary question.) I treat the grant of an extension of time for compliance as a waiver.
(c) If it is not capable of being waived or is not waived then what is the consequence of the non-compliance? (The consequences question.)
Which questions arise will depend upon the facts of the case and the nature of the particular requirement. The advantage of focusing on these questions is that they should avoid the unjust and unintended consequences which can flow from an approach solely dependent on dividing requirements into mandatory ones, which oust jurisdiction, or directory, which do not. If the result of non-compliance goes to jurisdiction it will be said jurisdiction cannot be conferred where it does not otherwise exist by consent or waiver.’
This case cites:
- Appeal from – Regina -v- Immigration Appeal Tribunal, ex Parte Jeyeanthan Admn (Times 23-Apr-98, [1998] EWHC Admin 395)
An appeal by the Home Secretary against a ruling that he had to use the same prescribed form as would be used by the asylum seeker. The use of a letter which omitted a substantial and important declaration was invalid. Lord Woolf MR made plain the . .
(This list may be incomplete)
This case is cited by:
- Cited – Clarke, Regina -v-; Regina -v- McDaid HL (Bailii, [2008] UKHL 8, [2008] 1 WLR 338, [2008] 2 Cr App R 2, [2008] Crim LR 551, [2008] 2 All ER 665)
An indictment had not been signed despite a clear statutory provision that it should be. The defects were claimed to have been cured by amendment before sentence.
Held: The convictions failed. Sections 1(1) and 2(1) of the 1933 Act which . . - Cited – Trail Riders Fellowship and Another, Regina (on The Application of) -v- Dorset County Council SC (Bailii, [2015] UKSC 18, [2015] PTSR 411, [2015] 1 WLR 1406, [2015] WLR(D) 160, WLRD, Bailii Summary, [2015] 3 All ER 946, UKSC 2013/0153, SC, SC Summary)
Objection had been made that a plan, used to register a right of way before it would disappear if un-registered, was to the wrong scale and that therefore the application was ineffetive.
Held: The Council’s appeal failed. The plan was too . .
(This list may be incomplete)
Last Update: 05-Jun-16
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