Scottish Court of Session Decisions

The petitioner in this petition for judicial review is a citizen of Pakistan who is currently detained in Longriggend Remand Centre on the orders of an immigration officer. The petition is brought to challenge the validity of a decision of the Immigration Adjudicator dated 23 December 1998, whereby the Adjudicator refused to grant the petitioner bail pending determination of an application for asylum made by the petitioner on 14 December 1998. The petition came before me on a motion by the petitioner for (i) a first order in terms of Rule of Court 58.7 and (ii) interim liberation. Both branches of that motion were opposed by Mr Scott, who appeared for the Secretary of State for the Home Department, the respondent to the petition. Notice of the motion had been given to the respondent by virtue of his caveat and Mr Scott invited me to refuse the petition at this stage, which failing to refuse interim liberation.

At the hearing before the Adjudicator the petitioner was represented by a solicitor. There was also representation from the Home Department. In applying for bail on that occasion, the petitioner put forward as cautioners a Mr Abdul Ghafoor and Mrs Jennifer Ghafoor, the former being an uncle of the petitioner. They were willing to provide caution of £4,000 and accommodation for the petitioner in Norwich. Mr and Mrs Ghafoor were present at the hearing and were examined by the Adjudicator. There was also before the Adjudicator a report by an immigration officer dated 15 December 1998 which had also been before the Adjudicator on the occasion of an earlier application for bail on 16 December 1998. A copy that report was placed before me by counsel for the respondent.

The Adjudicator issued a written decision in which he states that he "refuses bail in hoc statu as he believes that the applicant is unlikely to answer thereto". That decision was accompanied by a three page typewritten document intituled "Minute of Proceedings in the application for bail of a Rafaqat Ali (DOB. 4.1.73)", which sets out the submissions to the Adjudicator and thereafter amplifies and explains the reasons for his decision.

The factual background to the application for bail maybe summarised as follows. The petitioner came to the United Kingdom on 9 September 1998 and was given leave to enter as a tourist, with a prohibition on his taking up any form of employment. The petitioner entered the United Kingdom using a passport in a different name, namely that of "Ali Akbar". It appears that he had obtained entry clearance on that basis in Pakistan as a result of his having uttered to the entry clearance officer a forged letter on a stolen sheet on the business notepaper of a genuine Pakistani businessman, Malik Mohammed Akbar, who was a regular business visitor to the United Kingdom. The forged letter presented the petitioner as the son of that businessman with the request that he be allowed entry for a 4-6 weeks holiday in the United Kingdom. On 28 November 1998 immigration officers found the petitioner engaged in assisting in the work of the kitchen of an Indian restaurant (which I was told was in Johnstone in Renfrewshire). He produced to the immigration officers a passport in the name of Ali Akbar and said that he intended to return to Pakistan within the next few weeks. The petitioner was given a warning concerning the breaching of the condition of his tourist entry by taking up work and he was asked to attend at the Immigration Office on 14 December 1998 for interview.

In the interval between their visit to the restaurant and 14 December 1998, the immigration service carried out various checks which disclosed the forgery and uttering already described and the concomitant use of a false passport.

On 14 December 1998, the petitioner attended at the Immigration Office. He initially maintained that he was Ali Akbar. He produced an air ticket which he indicated he intended to use to return to Pakistan on 2 January 1999 and he therefore sought the return of his passport in the name of Ali Akbar. The petitioner was then informed of the outcome of the inquiries made by the immigration service following his having been found in the kitchen of the restaurant. The report of the immigration officer indicates that:- "The subject then reluctantly admitted that he was Rafaqat Ali s/o late Ashok Ali b.4.4.73 who had previously held a passport in his own identity and who had been refused both a US and UK student visa. He said he would have no problems in Pakistan if he went back there by himself; but as a former employee of Mr Akbar he might have problems with him if he was returned to Pakistan by the immigration authorities here."

It further appears that thereafter, once mention was made by the officers of the petitioner's being detained and removed from the United Kingdom, the petitioner asserted that he claimed political asylum. He was thereafter given an asylum interview on the same day. According to the report, the petitioner said that he had intended to await the expiry of his 6 month tourist visa before making any application for asylum.

For completeness, it should be said that although the report of the immigration officer records that part of the basis of the petitioner's asylum claim was "that he was involved in a car robbing gang and also that he perverted the course of justice by releaving (sic) a friend facing court proceedings during which a police officer was shot", the Adjudicator stated to parties at the hearing that he would not have any regard to the basis of the petitioner's asylum claim and it is apparent from the Minute that the Adjudicator did not draw any inference from the basis of that claim for political asylum.

In Statement 7 of the petition one finds set out the grounds upon which the petitioner challenges the validity of the Adjudicator's decision to refuse him bail. I did not understand Mr Bell, who appeared for the petitioner, to contend that the Adjudicator's decision was other than one involving the exercise of a discretionary power with which this court could only interfere on the well established grounds for review of such an exercise of discretion. The criticisms put forward in the petition and in argument must be seen in that light.

The first - and in view of Mr Bell's oral submissions - principal ground of attack is averred as follows:

In support of that submission, Mr Bell referred to a passage in an opinion of the Lord Ordinary (Lord Prosser) in Sokha v Secretary of State for the Home Department 1992 SLT 1049 at 1051L, which is in the following terms:-

Mr Bell said that he accepted that in the present case the petitioner had been guilty of deception. However, a level of deception was common in immigration cases and what was said in Sokha made clear that something more than that normal level of deception was necessary were detention to be warranted. Mr Bell contended that the Adjudicator had not applied the Sokha test. He said that the Adjudicator's decision made no reference to the decision in Sokha. One could not find in the Adjudicator's decision any clear statement that there was a particular feature in the petitioner's case which indicated that there was a materially greater risk of absconding than the risk inherent in "normal" cases.

In response to this branch of the submission for the petitioner, counsel for the respondent submitted that if what was said in Sokha was the appropriate test then it was apparent on any proper reading of the Adjudicator's decision that he had in fact applied such a test. In declining to grant bail because he believed that the petitioner was unlikely to answer to bail meant that he had concluded that there was a higher than normal risk. It was "the other side of the coin". Further having recorded the submission to him by the petitioner's solicitor that it was normal for an applicant to have used deception at some point, the Adjudicator stated - "however, in the case of this applicant, the degree and duration of the deception practice went far beyond what might be considered normal for someone applying for bail." Thereafter the Adjudicator went on to detail the deceptions. It was evident that he had concluded that this was not a "normal" case and had something very much more than "normal" deception.

The second criticism advanced by the petitioner is that the Adjudicator reached two conclusions for which it is said he had no evidential basis. Those conclusions are stated in the petition as being (i) a finding that the petitioner "overall lacked credibility" and (ii) a finding that the petitioner had applied for a visa using a passport in another's name in order to conceal previous refusal of visa applications for the United Kingdom and the United States.

In response to this criticism, counsel for the respondent stated that on the material before the Adjudicator, particularly the lengthy history of deceptions, it was eminently open to the Adjudicator to consider that, overall, the petitioner lacked credibility. Further, in relation to finding (ii), the report recorded that on 14 December 1998 the subject admitted that he had been refused both a US and UK student visa.

The petition advances as a third criticism of the Adjudicator that he "failed to take into account that the petitioner immediately advised the immigration authorities of his true identity and claimed political asylum after being interviewed on 14 December 1998". In advancing this as an important factor in the petitioner's favour which the Adjudicator had allegedly overlooked, counsel for the petitioner appeared - at least at some point in his address to the court - to believe that the petitioner had gone to interview on 14 December 1998 and had immediately and forthwith volunteered his true identity. However, as counsel for the respondent pointed out, that was simply not so. The petitioner had continued to misrepresent himself as being Ali Akbar and had endeavoured to secure the return of his false passport by exhibiting a return ticket to Pakistan. He only admitted to his true identity once he was told by officers that they knew the truth of his deceptions.

It is further averred by the petitioner that the Adjudicator "failed to consider that the petitioner will be detained without limit of time". In so far as I could understand the submission of counsel for the petitioner on this branch, it was to the effect that since the Adjudicator made no mention of the duration of detention he must have overlooked that the relevant legislation did not set any time limit for the detention of illegal immigrants or asylum seekers and that much time might elapse before the petitioner's application for asylum might finally be determined. Counsel for the respondent submitted in reply that any adjudicator, but especially an experienced adjudicator such as the one involved in the present case, would be aware that detention under the Immigration Act was not subject to specific time limits such as one finds in the criminal procedure legislation in Scotland. But such an adjudicator would also be aware of Home Office practice which, in response to specific enquiry by me, was said by counsel to be as follows. "Detained applications" were given priority and would be determined within, at most, 2-3 months. Such cases were reviewed at weekly intervals at local level and a report was sent every 28 days to the Central Office.

Finally, it was said by counsel for the petitioner that the Adjudicator had not given proper consideration to the cautioners and their belief that the petitioner would not abscond. The Adjudicator had recorded that he had no reservations as to their standing as cautioners. He had accordingly not given adequate reasons for believing that they would not have sufficient influence over the petitioner to dissuade him from absconding. In response, Mr Scott pointed out that that Adjudicator, while noting the views of Mr and Mrs Ghafoor, stated correctly that it was the Adjudicator's responsibility to form an assessment of the risks of the petitioner's absconding. The Adjudicator had considered whether the cautioners would have any dissuasive effect upon the petitioner and in the exercise of his discretion, the Adjudicator had formed a judgement that they would be unlikely to have a sufficient dissuasive effect.

Having dealt with all the attacks made upon the validity of the Adjudicator's decision, counsel for the respondent submitted that it was evident that there was no substance in any of the criticisms of the Adjudicator which had been advanced on the petitioner's behalf. Mr Scott therefore invited refusal of the petition at this stage. He submitted that it was competent for the court to do so in appropriate circumstances. Such a course had been followed in Sokha and also in the unreported decision in Butt v Secretary of State for the Home Department (Lord Gill 15 March 1995). In his opinion in Butt Lord Gill said:-

Counsel for the petitioner did not dispute that in appropriate circumstances it is competent for the court to refuse a petition for judicial review without making a first order. He submitted however, that it would not be appropriate in the present case since he understood that there was a question whether it was factually correct that earlier applications by the petitioner for visas to enter both the United Kingdom and the USA had been refused. As I understood him, counsel for the petitioner also suggested that if answers were lodged he might, dependent on the content of the answers, then invite the court to call for the Adjudicator's notes, in the hope that he might find therein the basis for some other point to argue.

I consider that the criteria set out by Lord Gill in the passage which I have quoted are satisfied in this case in which I have heard relatively full argument on the merits of the petition. In relation to what was said by Mr Bell on this matter I observe that it is clear that there was material before the Adjudicator to the effect that earlier applications by the petitioner, in his own name, for visas had been refused and that counsel for the petitioner himself observed that what one had to look at in this case was the Adjudicator's determination and the material before him. Moreover, it appears to me that whether the petitioner indulged in the deception of the authorities because of earlier refusals of a visa, or for some other reason, is not central to the issues raised in the petition. Further, Mr Bell did not invite me to order the production of the Adjudicator's notes, and I would add that nothing which was said would suggest to me that such an order would be appropriate. In my view, it is difficult to see any useful purpose which might be served by a further hearing on the issues fully canvassed before me.

So far as the merits of the petition are concerned, I consider that the first of the petitioner's contentions is unsound. In regard to that contention counsel for the respondent was content to proceed on the basis that the approach or test described in Sokha was the correct one and I in turn proceed on a similar basis. While it may be that the Adjudicator has not employed precisely the phraseology of Sokha, it is to my mind apparent from the terms of his decision that he has in fact followed the Sokha approach. It is evident that the Adjudicator was conscious that in most cases the illegal immigrant will have indulged in some degree of deception. However, the Adjudicator took the view that the petitioner's case was not a "normal" one. The Adjudicator states - "... in the case of this applicant, the degree and duration of the deception practice went far beyond what might be considered normal for someone applying for bail". The Adjudicator thereafter goes on to explain in detail the reasons for which he took that view. Among other things, it appears that the continuing deception practised on 14 December 1998, when the petitioner attempted by further misrepresentation to recover his false passport, was a matter which weighed heavily with the Adjudicator. The ponderation of the various elements in the applicant's immigration history and the nature and degree of the deception practised was a matter for the Adjudicator's discretion. He reached the opinion that the petitioner was unlikely to answer to bail. It is plain that in forming that opinion, he took the view that the petitioner was likely to abscond, that is to say that the risk of the petitioner's absconding was higher than "normal". In view of the material before the Adjudicator I consider that it cannot be said that he was not entitled to form that opinion and it cannot be said that he applied a wrong test.

The second contention to the effect that the Adjudicator reached certain conclusions for which there was no evidential basis is also unsound. As was pointed out by counsel for the respondent in his submissions, which I have summarised, there was plainly material before the Adjudicator which enabled and entitled him to reach the conclusions which he did. The third criticism is, in my view, misconceived for the reasons already indicated. I also consider that the fourth contention to the effect that the Adjudicator failed to take account of the fact that no time limits are imposed by the relevant legislation is likewise wholly misconceived. In relation to the final criticism, it does not follow that because a cautioner may appear to an Adjudicator to be acceptable as a cautioner, the applicant must be judged unlikely to abscond. In the present case, having reached the view that the petitioner was otherwise unlikely to answer to bail, the Adjudicator properly considered whether the cautioners might be likely to dissuade the petitioner from adopting that course. The Adjudicator was able to examine the cautioners in person and had the advantage of that examination in reaching his assessment that the cautioners would be unlikely to be able to provide the necessary dissuading influence.

For these and the other reasons advanced by counsel for the respondent in his submissions, I have reached the view that nothing has been advanced on the petitioner's behalf to invalidate the Adjudicator's decision. The Adjudicator is, of course, entrusted with discretion in determining whether bail should be granted and I am unable to decern any error of law or other ground which would entitled this court, in the exercise of its supervisory jurisdiction, to interfere with the Adjudicator's exercise of his discretion. It is of course not for me simply to substitute my own discretionary assessment for that of the Adjudicator. The petition must therefore be refused.