Tuesday Law Report: Failure to use prescribed application form

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8 June 1999

Ravichandran v Secretary of State for the Home Department; Regina v Secretary of State for the Home Department, ex parte Jeyeanthan

Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Judge and Lord Justice May) 21 May 1999

THE FAILURE of the Secretary of State for the Home Department to use the prescribed form when applying for leave to appeal against a decision to grant an application for asylum did not render the appeal a nullity.

The Court of Appeal allowed the Secretary of State's appeal in the case of Jeyeanthan, and dismissed Ravichandran's appeal. Both appeals raised the same issue, i.e. the consequence, if any, of the failure of the Secretary of State to use the prescribed form for applying for leave to appeal from the Special Adjudicator to the Immigration Appeal Tribunal.

The Secretary of State had not used the prescribed form because its language was considered to be more appropriate for use by an asylum seeker than by the Secretary of State. Instead, he had adopted the practice of making the application for leave to appeal by letter, which contained all the relevant information but lacked the declaration of truth contained in the form.

In Jeyeanthan's case the Secretary of State had relied on the decision in R v Secretary of State for the Home Department, ex p Nichalapillai [1998] Imm AR 232, in which it had been held that the Secretary of State's application fell just within substantial compliance. However, Sedley J, in granting Jeyeanthan's application for judicial review, had declined to follow that case, indicating that it was important that there should be equality of treatment between the applicant and the minister.

He took the view that the Secretary of State's failure to use the prescribed form meant that the tribunal's decision was a nullity. In Ravichandran's case the nullity issue was only raised after his legal advisers had become aware of Sedley J's decision in Jeyeanthan's case, and Ravichandran was allowed to amend his notice of appeal accordingly.

Nigel Pleming QC and Margaret Phelan (Saleem Sheikh) for R; Nigel Pleming QC and Simon Cox (A.J. Paterson) for J; Robin Tam (Treasury Solicitor) for the Secretary of State.

Lord Woolf MR said that the conventional approach when there had been non-compliance with a procedural requirement laid down by a statute or regulation was to consider whether the requirement which had not been complied with should be categorised as directory or mandatory.

The correct approach, however, was to regard the question whether a requirement was directory or mandatory only, at most, as a first step. In the majority of cases there were other questions which were more likely to be of greater assistance, i.e.

(a) whether the statutory requirement was fulfilled if there had been substantial compliance with the requirement and, if so, whether there had been substantial compliance in the case in issue even though there had not been strict compliance;

(b) whether the non-compliance was capable of being waived, and if so, had it, or could it and should it be waived in the particular case; and

(c) if it was not capable of being waived or was not waived, what was the consequence of the non-compliance.

Sedley J had been right not to follow R v Secretary of State for the Home Department, ex p Nichalapillai and had correctly decided the substantial compliance question, but it did not follow that the application, although it had not contained the required declaration, was a nullity. Having regard to the express discretion granted to the Immigration Appeal Tribunal to vary a notice of application when it became a notice of appeal, the absence of the declaration did not contaminate the leave to appeal which had been given, so depriving the tribunal of jurisdiction to hear the appeal.

Moreover, the existence of the power in rule 38 of the Immigration Appeals (Procedure) Rules 1984 to deal with irregularities confirmed that the tribunal was not intended to allow technicalities to interfere with its responsibility to determine the merits of appeals. The procedures of tribunals should normally be less rather than more strict than the procedures of the High Court.