FP Iran V. Secretary of State for the Home Department - Assignment Example

Running Head: FP (IRAN) V. SECRETARY OF FOR THE HOME FP (Iran) V. Secretary of for the Home Department of Institution) Critical Assessment of significance of the case of “FP (Iran) V. Secretary of State for the Home Department” in the development of Administrative Law Introduction With the advent of civilisation and the law making process, it has been the endeavour of man to ensure that Rule of Law prevails in all decisions made in disputes. Judges have accepted time and again that just as everybody has certain rights that are subject to prevailing laws, so also all officials upholding the law have a responsibility to ensure that they shall not commit any act without proper justification. Administrative Law is a set of governing principles that form a part of public law that ensures the fair and reasonable implementation of the laws enacted by the Parliament The main principle of Administrative Law is that all actions on the part of the Government must be legal and if it is not then the public must have a remedy against such illegal action (Kuttner, 2007). Facts of the Case Prior to discussing the importance of the present case in the development of Administrative Law, it is important to understand the facts of the case. The brief facts of the case, FP (Iran) V. Secretary of State for the Home Department (2007), is that the Appellant, an asylum seeker, had initially filed an appeal, through counsel, against the Home Office’s rejection of her claim for asylum, before the Asylum and Immigration Tribunal (henceforth referred to as AIT). The AIT held that the said appeal was not valid giving error of law as the reason for its decision. A rehearing was fixed and notice of the same was sent to the last known address of the Appellant. However, the Appellant having shifted residence did not get the notice and was not present during the hearing. From the perusal of the judgement, it is apparent that the Appellant had had informed her solicitors of this change and they had in turn informed the Home Office. However, neither the appellant nor her solicitors had informed the AIT. The Judge on finding the Appellant absent went on to hear the appeal on the premise that the notice had indeed been properly served as per the rules. The appeal was dismissed on the grounds that there was discrepancy in the evidence presented by the Appellant, which has not been clarified. The Judge further held that the absence of the Appellant for the rehearing showed a lack of interest in the case and hence could not be upheld. The main question that the Judges in this present case faced was whether the Appellant can be held responsible for the actions or inactions of his or her lawyers. In this case, the Appellant had to pay the price for her lawyer’s failure to inform the Asylum and Immigration Tribunal about the change of address, which resulted in the Appellant not being informed about the hearing leading to her absence and ultimately dismissal of appeal. Given this factual background, it is very clear that certain basic principles of law have been violated by the AIT while deciding this case. Rule of law implies that all decisions made by any Court should be fair, efficient and speedy. This concept has been taken in its literal meaning by the AIT even in the arena of rule making without any thought towards the conflict that could arise while implementing the rules. The judgement in the present case deals with the different aspects of administrative law as reflected in this case and how each aspect has been affected and the resulting judgement or opinion of the judges. Analysis and Assessment of Judgement 1.Fairness The first point that the judgement discusses is whether the provisions embodied in the Statute and rules there under are fair or not. According to the judgement, various changes are proposed in the law governing such cases based on the fact that the existing rules and principles are inadequate to fairly deal with such cases. Prior to understanding the significant observations made by the Judges in the present judgement as regards the fairness of statute it is necessary to briefly understand the provisions involved. Section 106 of the Nationality, Immigration and Asylum Act 2002, states that the Chancellor can make any rules regulating the process and procedure of appeal. According to the section, the main principle governing the rules is fair, speedy and efficient handling of cases and this can be done even in the absence of parties. In pursuance of the said statutory provision, the Asylum and Immigration Tribunal Procedure Rules, 2005 were formed. These rules concurred with the statute and provided for cases where the Tribunal can hear a matter in the absence of the parties. Rule 19 talks of a scenario where the Court is satisfied that the party or his representative has been given proper notice but still remains absent and further has not provided any adequate explanation for the absence. As per this provision, the Tribunal can go ahead and hear the case in such a situation and order accordingly. This rule is the subject matter of this judgement as it is highly insufficient in the sense that it is silent on how and when the said explanation is to be given. The judgement is important as it questioned the validity and fairness of such a rule. Past judgements have always adhered to the provisions stating that non adherence to the rule would mean that speed of justice would be compromised. This rule was made to ensure that cases are not unnecessarily delayed due to false reasons and adjournments. However, the rule makers did not account for such special cases where the reason for absence could be genuine. This judgement reveals the loophole in the rule by exposing the fact that though there is a provision for explanation regarding absence, there is no space or provision for how the absent party is to provide such an explanation. On one hand states that it is the absent party who must explain the absence and if the reason is genuine then the case will be considered accordingly. And on the other hand it states that if the party is absent then the Tribunal can go ahead with the hearing and decide the matter. The Court has interpreted the rule vide this present judgement to state that this rule states that cases coming before the AIT should be dealt with complete efficiency, fairness and speed and the Court lays the responsibility on the shoulders of the Tribunal Judge to ensure that the three concepts are followed. The Court has further interpreted the responsibility to include that these principles are implemented subject to the interests of the parties and the wider public interest. In other words, where the interests of the parties conflict with the procedural aspects, then the party’s interest should prevail in order to ensure absolute fairness. According to the Judges in the present case, a rule can be said to be fair only if the interpretation of the rule does not cause any irreparable injustice to the parties. 2. Natural Justice The present judgement also deals with the basic principles of natural justice. Any rule or byelaw that is made or promulgated must ensure that it follows the basic principles of natural justice. In the present case, the Judges have agreed on the point that the AIT has not violated the principles of natural justice in any manner. According to the Judges, the AIT has provided ample opportunity to the parties, within the limited scope of the rules and statute, to present their case. However, given the loopholes in the statute, one can say that there has been violation of the principles of natural justice but this violation is not the fault of the Judiciary but of the rule makers. The first principle that the judgement deals with is the provision of notice to ensure proper hearing. As per the principles embodied in Administrative law and also as per the provisions of the rule and statute, the Appellant was given due notice of the hearing. However, due to some technical problems regarding shifting of residence and confusion as to informing the correct authorities, the notice never reached the Appellant resulting in her absence during the hearing. At the outset, as proper notice in due form has been given to the Appellant and has been sent to the last known address of the Appellant, there is no violation of natural justice. However, given the fact that the appeal has been dismissed on the grounds of absence without even providing a chance to the Appellant to explain her absence, totally sparks of a violation of natural justice. The Judges deciding this appeal have clarified that this violation is not on the part of the Tribunal but on the part of the Statute, as the Statute does not provide for the same. The judgement also deals with the other aspect of this case where the Appellant had informed her Solicitors who had in turn informed the Home Office. However, they had not informed the AIT, which resulted in dismissal of appeal. The rules provided for such appeals states that either the Appellant or the Counsel should inform the AIT about any changes. In such a situation, where the Appellant believing in good faith that her Counsel would have informed about the change of address and also where it was not possible for the Appellant to have known about the hearing, the Appellant should have been given a chance to explain her absence. However, the rules though state that the Appellant should explain does not provide for any such opportunity to explain. 3. Delegated Legislation According to the principles of English Law, Parliament can enact laws conferring rule making authority on Government Bodies, Judiciary etc. The Judiciary while exercising its rule making authority need not be bound by precedents but only has to ensure that the rules are just and fair. This authority so conferred is meant for specific purposes and is to be exercised within certain limits (Geldart, 1995, p 18). In other words, any rule made by any statutory or government body, in pursuance to a particular statute must ensure that these rules do not conflict with the existing common law or the statute. In case of any such conflict the rule so made may be declared invalid and such declaration may be obtained through Court (Cane, 1996, p 110). In the present judgement, the Judges while relying on Saleem v Home Secretary, (2000), have stated that vires of a rule can be challenged if the rule framed is unreasonable or wider than necessary or infringes fundamental rights. Further, the Judges while referring to a precedent held that for a rule to be within the limits set by the principles of delegated legislation, it has to be within the limits set by the Parliament and should not go beyond its purpose. In other words, this judgement states that for rules to be valid, it has to be within the accepted framework and it has to be for the purpose of providing justice. In the present case, the Judges held that these rules do not fall under the ambit provided by the Statute and further they are outside the prescribed purposes and hence the vires of the rules can be challenged. It has been stated by the Judges that the rules governing the present case, in their effort to ensure speedy justice compromise on fairness. 4. Judicial Recourse The judgement goes on to view the rules in the light of the possible judicial recourse that is available to the Appellant. A reading of the statute, rules and the judgement clearly state that there is no provision for any judicial recourse. The Judges during the course of this judgement have propounded on the various rules made by other in similar situations, wherein they have given adjournment with show cause notice or judicial review of order as the possible remedies in such situations. The present Act and Rules made there under, however, do not provide for any such mechanism. It can be seen that common law prevalent today provides for judgements to be set aside in cases where the documents have been served on the wrong address. Courts have held that if there is a just cause for absence then such cause should be accepted and the judgement so made in his absence should be set aside (Ryall, 2006). However, in the present case, though there is a provision for explanation, the law has not provided any judicial recourse or remedy to ensure that the explanation is given, which it should provide for in order to ensure fairness of judgement. Conclusion In conclusion we shall see the final judgement given by the Judges. The entire case was handled in an efficient manner by the judges who looked at every aspect of the law and provided actual suggestions as to how the law could be made more effective and just. The Judges, while declaring Rule 19 unlawful in some aspects, sought written submissions from the parties and the rule maker. In response to the judgement, the rule maker, Chancellor, has promulgated the Asylum and Immigration (Procedure) (Amendment) Rules, 2007, that has amended the said Rule to make it discretionary on the part of the Tribunal to hear any appeal in the absence of the parties, after having discerned that there is no just reason for absence (Haynes, 2007). The judgement entirely focuses on the rule making process and the necessity to maintain fairness before speedy disposal of cases. Given this, the judgement has effectively dealt with all the aspects of the case in a detailed manner. Bibliography Asylum and Immigration Tribunal (Procedure) Rules 2005 Cane, P. (1996). An Introduction to Administrative Law (3rd ed.), (pp 110). Oxford: Clarendon Press. Haynes, R. (2007). Explanatory Memorandum to the Asylum and Immigration (Procedure) (Amendment) Rules, 2007. Retrieved April 25, 2007 from http://www.opsi.gov.uk/si/em2007/uksiem_20070835_en.pdf FP (Iran) V. Secretary of State for the Home Department (2007) EWCA Civ 13 Retrieved April 25, 2007 from http://www.bailii.org/ew/cases/EWCA/Civ/2007/13.html Geldart, W. (1995). Introduction to English Law: (Originally Elements of English Law) (11th ed.), (pp 18). Oxford: Oxford University Press. Kuttner, T. (2007). Administrative Law. In The Canadian Encyclopedia. Canada: Canadian Encyclopedia. Retrieved April 25, 2007 from http://www.thecanadianencyclopedia.com/PrinterFriendly.cfm?Params=A1ARTA0000043 Nationality, Immigration and Asylum Act, 2002 Ryall, R. (2006). Judgement set aside after documents served at wrong address. Stay Alert. Retrieved April 25, 2007 from http://www.salaw.com/ArticleReadWeb.asp?SectnId=6&Id=102 Saleem v Home Secretary (2000) Imm AR 529 Read More