An issue arose as to whether the Secretary of State was required by section 18 of the Immigration Act 1981 to make regulations concerning the giving of notice of a decision for the purposes of appeal. if regulations were not made, the right of appeal conferred by the legislation could not have been exercised.
Held: Provisions for deemed service at the last known address of an applicant are intra vires. The Secretary of State had a duty to make such regulations. It would be assumed that Parliament intended that the person delegated with the relevant power should make regulations so as to activate the right in practice.
A duty to exercise a power would arise on a Minister where its exercise was necessary to give effect to rights created by Parliament.
Lord Jauncey of Tullichettle said: ‘Sections 13 to 16 of the Act confer rights of appeal upon persons in relation to various actions and decisions affecting them, such as refusal of leave to enter the United Kingdom, deportation orders and directions for removal. If those rights are to be effective the persons concerned must, where possible, be given such notice as will enable them to exercise those rights. In my view Parliament intended that the Secretary of State should be required to make regulations that would ensure, so far as practicable, that persons upon whom the rights of appeal had been conferred should be enabled effectively to exercise those rights. It follows that the Secretary of State does not have a discretion as to whether or not he shall make regulations.’
As to service: ‘Mr Mitchell’s argument that service on a person at his last known abode when he is known not to be there is Wednesbury unreasonable also fails. It is to be noted that the attack is not on the vires of regulation 6 but upon its exercise in the particular circumstances of this case. This argument necessarily involves construing ‘last known place of abode’ as meaning ‘last known place of abode at which there is reason to believe he might still be abiding.’ There is no warrant for such a construction. ‘Last known place of abode’ means exactly what it says, no more and no less. If it is known where a person was living but it is not known where he is now living, the former is his last known place of abode at which the regulation directs notice to be given. The formula is well known. For example, R.S.C., Ord. 10, r. 1(2)(a) provides for service of an originating process by posting to the defendant ‘at his usual or last known address.’ ‘
Judges:
Lord Jauncey of Tullichettle
Citations:
Gazette 10-Mar-1993, 1993 SC (HL) 1, [1992] 1 WLR 1052
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – RM v The Scottish Ministers SC 28-Nov-2012
The pursuer was held in a secure mental hospital. When moved to a highersecurity section, he challenged the move. He lost but then was unable to make an apeal as allowed iunder the 2003 Act because the Scottish Parliament had not created the . .
Lists of cited by and citing cases may be incomplete.
Immigration, Administrative
Updated: 01 December 2022; Ref: scu.89278