Scottish Court of Session Decisions

[1] This is an application for judicial review of a determination of a Special Adjudicator and a determination of the Immigration Appeal Tribunal. The respondent is the Secretary of State for the Home Department, on whose behalf answers have been lodged. The case originally called before me for a first hearing on 3 February 2000, but on that date, after discussion about the procedure to be followed, I continued the first hearing so as to allow those acting for the petitioner to investigate and answer certain averments for the respondent which had only recently been added by adjustment to the answers. After sundry procedure a continued first hearing took place before me on 1 March 2000. By that time there had been further adjustment to both the petition and answers and various productions had been lodged. It was agreed that I should hear submissions at this stage directed only to the first and second pleas in law for the respondent, which are in these terms:

It was agreed that if I did not sustain either of these pleas at this stage there would require to be a further continued first hearing to enable the merits of the application to be discussed, but that at this stage I should assume that the petitioner has a good case.

[2] I propose now to set out the history of events, so far as relevant for present purposes, which I derive from the pleadings, the productions and the submissions of counsel. The petitioner is a citizen of India and was born on 6 January 1975. He entered the United Kingdom illegally on 11 September 1995. On 13 September 1995 the Community Advice Bureau of Southall, Middlesex ("the CAB") acting as agents on his behalf made an application for asylum in the United Kingdom. On 7 February 1996 the petitioner was interviewed in connection with his asylum application with the assistance of a translator. On 8 February 1996 he was served with notice form IS151A informing him that he was an illegal entrant as defined by section 33(1) of the Immigration Act 1971. On 14 March 1996 the respondent refused the petitioner's application for asylum on the basis that the petitioner had failed to demonstrate a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion should he be returned to India. On 20 March 1996 the petitioner was served with notice form IS151B informing him that following the refusal of his asylum application directions had been given for his removal from the United Kingdom as an illegal entrant. The notice advised the petitioner that he was entitled to appeal to the independent appeal authorities against these directions on the grounds that such removal would be contrary to the United Kingdom's obligations under the 1951 United Nations Convention relating to the status of refugees. The petitioner appealed against the decision to refuse his application for asylum. His appeal was received on 10 April 1996. A date was fixed for the appeal to be heard on 22 May 1997. According to the petitioner, before the date of the hearing he contacted the CAB, who were continuing to act as his agents, and told them that he was ill and would be unable to attend the hearing. The CAB told him that they would attempt to sort things out for him. He subsequently telephoned the CAB again and was told that they had not heard anything yet, but when they did they would be in touch. A request for an adjournment of the appeal hearing before the Special Adjudicator was made on 21 May 1997, and was refused.

[3] The appeal was heard by the Special Adjudicator on 22 May 1997, although neither the petitioner nor his representatives attended at the hearing and the Special Adjudicator dealt with it in his absence on the basis of the paperwork which had been submitted, as it was open to him to do under the Asylum Appeals (Procedure) Rules 1996. By a decision promulgated on 26 June 1997 the Special Adjudicator dismissed the appeal. Copies of the determination were sent to the CAB as agents for the petitioner. On 27 June 1997 the CAB wrote to the petitioner with a copy of the letter intimating the determination, and asking him to contact them regarding the matter. The CAB's letter was addressed to the petitioner at 15 Willowbank Street, Glasgow G3 6LY, which was the address given by him to the CAB. The letter was returned without being received by the petitioner. On it someone had written that no one by the petitioner's name lived at that address, and the Royal Mail had added a sticker indicating that the address was incomplete. Notwithstanding this, the CAB applied to the Immigration Appeal Tribunal on behalf of the petitioner for leave to appeal against the determination of the Special Adjudicator. The relative notice was dated 4 July 1997. By determination dated 11 July 1997 and notified on 24 July 1997 the Vice President of the Immigration Appeal Tribunal refused leave to appeal. By letter dated 28 July 1997 the CAB wrote to the petitioner, at the same address as previously, enclosing a copy of the letter intimating the Vice President's decision, and asking him to contact them regarding the matter. The letter was returned indicating that the addressee was unknown with a sticker by the Royal Mail.

[4] On 2 September 1997 immigration officials in Glasgow attempted to find the petitioner at 15 Willowbank Street, but were unable to do so, and thereafter the petitioner was treated as having absconded. He came to the notice of immigration officials after he had been arrested by the police on 24 October 1997, on charges which are not relevant for present purposes. He initially informed the police that his name was "Raj Singh" and that his address was 15 Willowbank Street, but thereafter when he was interviewed he gave his true name and his present address as 9 Cedar Street, Glasgow (there are several versions of this address in the papers, but this is the one given in the petition). Once he had been identified as an absconder detention papers were served on the police and the petitioner remained in custody in respect of the criminal charges and in immigration detention until 16 February 1998. On that date his pleas of not guilty to the criminal charges were accepted and thereafter he remained in immigration detention. He could not, however, be removed from the United Kingdom without appropriate documentation. On 15 December 1997 an application for an emergency travel document at the instance of the respondent was sent by courier to the Indian High Commission. The Indian High Commission gave a reference number for the application on 15 January 1998, but by the date of the continued first hearing on 1 March 2000 the emergency travel document had not been issued by the Indian authorities. The respondent's position is that it is solely because of this delay in the issue of the appropriate documentation that action to remove the petitioner from the United Kingdom has not yet taken place.

[5] The petitioner was granted bail from immigration detention on 18 February 1998. Thereafter he instructed new agents in connection with his asylum application. It is stated on his behalf that until after his arrest he was unaware that the hearing had taken place before the Special Adjudicator and that the Special Adjudicator and the Vice President of the Immigration Appeal Tribunal had made the determinations already referred to. The explanation which is offered for this is that he was under the impression, having heard nothing to the contrary, that the CAB had been successful in obtaining a postponement of the hearing of the appeal by the Special Adjudicator and that a new date for it had not yet been fixed. The address at 15 Willowbank Street was in fact a block of nine flats, but the petitioner was unaware of the need to specify the flat at which he was residing as part of his address. He went to reside there as a sub-tenant. Building work required to be carried out on the flat and he moved out temporarily. Because he did not regard this as a permanent change of address he did not notify the immigration authorities or indeed the CAB. It continued to be possible to visit the flat at 15 Willowbank Street to collect mail, but he found none for him there. The name "Raj Singh" was a nickname by which he was commonly known, which is why he gave that name to the police. He had not intended deliberately to abscond.

[6] According to the petitioner, his present agents met him for the first time on 21 April 1998. Following that meeting they mandated his file from those representing him in the criminal matters. Papers were received from his previous agents on 20 May 1998. His present agents wrote to him for an appointment to be made when they received the papers. In August 1998 the petitioner confirmed that he wished to proceed with the present application. The agents obtained an increase in legal advice and assistance authorisation for a full legal aid application and prepared an opinion in support of that application. On 15 December 1998 the petitioner signed the legal aid forms. Legal aid was granted on 15 February 1999. Counsel was instructed to draft the petition on 8 March 1999, but requested further information, which was sent to him in the form of a supplementary precognition on 19 March 1999. The petition was drafted in April 1999 and was lodged on 26 May 1999. A first order for intimation and service was granted on 27 May 1999. Thereafter an order was made for a first hearing to take place on 3 February 2000. Answers for the respondent were lodged on 31 January 2000 and adjustments to them were intimated on 2 February 2000. It is in this situation that I am now considering arguments in respect of an application for judicial review of determinations made as long ago as 22 May 1997 and 11 July 1997.

[7] The Rules of the Court of Session contain no provision that an application for judicial review must be made within a specified period after the date of the decision in question. The Rules relating to applications for judicial review were introduced comparatively recently, following the observations of Lord Fraser in Brown v Hamilton D.C. 1983 SC (HL) 1 and the subsequent report of the Dunpark Committee. The present Rules did not alter the nature of the equitable supervisory jurisdiction of the Court of Session, but merely introduced a more convenient procedure. The Dunpark Committee expressly considered and rejected the possibility of introducing a time limit similar to that imposed by the corresponding procedure in England. At the hearing before me reference was made to the requirement under R.S.C. Order 53, rule 4(1), that an application for leave to apply to the High Court in England for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made. This requires to be read in light of section 31(6) of the Supreme Court Act 1981, which provides that where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant leave for the making of the application, or any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. Reference was made to R v Criminal Injuries Compensation Board, Ex parte A [1998] Q.B. 659 (C.A.), [1999] 2 AC 330 (H.L.) in which the relationship between these provisions was discussed. Of most relevance for present purposes is the concept that an application for judicial review may be refused if there has been undue delay in making it and to grant it would be detrimental to good administration. Counsel for the respondent developed his submissions in this regard by referring to passages in R v Dairy Produce Quota Tribunal for England and Wales, Ex parte Caswell [1990] 2 AC 738 (H.L.) and R v Secretary of State for Trade and Industry, Ex parte Greenpeace Ltd [1998] EnvLR 415 (Laws J), in which detriment to good administration was recognised as a reason for refusing leave to apply for judicial review out of time. In O'Reilly v Mackman [1983] 2 AC 237 Lord Diplock said at p.280:

[8] As I have said, however, the Rules of Court do not provide any time limit for an application to this court for judicial review. Counsel for the respondent submitted nonetheless that since the purpose of the equitable supervisory jurisdiction of the Court of Session was to ensure that the rule of law was maintained, unreasonable delay in making the application might of itself be sufficient to justify the court in the exercise of its discretion in refusing to entertain the application, however meritorious, principally because it would be detrimental to good administration to allow such an application to proceed. It is important to note that as I understood this submission it did not depend on the respondent's being able to demonstrate any actual detriment. Counsel for the respondent sought principally to rely on a passage in the opinion of Lord Johnston in Kwik Save Stores Limited v Secretary of State for Scotland 1999 S.L.T. 193 at p.196, where the opinion was expressed obiter that the lapse of time in that case in bringing the challenge to the Secretary of State's decision was unreasonable, no good reason having been advanced, and therefore detrimental to good administration, and the Secretary of State's plea of mora would have been sustained. Lord Johnston expressed the view at p.196 I-J that the principles enunciated in Caswell, where the three month time limit applicable in England was under consideration, did not "differ from the Scots common law position where no statutory time limit is imposed". It appears from the report in that case that Lord Johnston was referred to a number of Scottish cases in which the plea of mora, taciturnity and acquiescence was considered. I shall refer to some of these cases myself in due course, but for present purposes it is sufficient to say that none of them appears to me to afford support for a plea of unreasonable delay, separate and distinct from a plea of mora, taciturnity and acquiescence, in answer to an application for judicial review. There may of course be circumstances, recognised in a number of cases, in which delay is such as to yield an inference of acquiescence. Counsel for the petitioner accepted that there might in theory be circumstances in which pure delay, as he put it, would be sufficient to amount to acquiescence and accordingly found a plea of mora, taciturnity and acquiescence, but, as he pointed out, all the authorities founded on by counsel for the respondent, apart from Kwik Save Stores Limited, also dealt with questions of alteration of position and of prejudice. Counsel for the respondent was unable to point to any Inner House decision which clearly favoured his approach. The most recent one to which he was able to point was Swan v Secretary of State for Scotland 1998 S.C. 479 where the court said at p.487:

The court then went on to consider various matters before expressing the view that any delay was not such that the petitioners should be denied the right to proceed. The plea under consideration in that case was not one of unreasonable delay, it was that there had been delay in raising the proceedings to the extent that they lacked practical content et separatim to the prejudice of the respondent and certain third parties, and that the petition should be dismissed. In light of this, and in the context in which it appears, the passage I have quoted does not appear to me to recognise the validity of a separate plea of unreasonable delay.

[9] Reference was made in the course of the hearing to the recently published Clyde and Edwards, Judicial Review, which has found immediate acceptance as the standard Scottish textbook on the subject. At paragraphs 13.21ff there is discussion of delay in judicial review and related concepts. In para.13.21 the authors state:

In the footnote reference is made to Kwik Save Stores Limited. In this passage and the ensuing discussion there is no support for the argument that unreasonable delay may, of itself, bar an application for judicial review.

[10] In my opinion the first plea-in-law for the respondent seeks to invoke a concept for which there is no sufficient foundation in Scottish authority. While delay is a necessary element of a plea of mora, taciturnity and acquiescence, there does not appear to me to be any authority for the proposition that of itself, and without reference to other circumstances and in particular the consequences of the passage of time, delay may justify dismissal of an application for judicial review without consideration of the merits of the application. It is not for consideration in the context of this opinion whether it might be desirable to introduce into our procedural rules a time limit on English lines, but it may be thought that the availability of the plea of mora, taciturnity and acquiescence, to which I now turn, is sufficient to alert prospective petitioners to the need to avoid delay.

[11] It is well recognised that a plea of mora, taciturnity and acquiescence may, in appropriate circumstances, be sustained in an application for judicial review. The classic definition of the plea is found in the opinion of Lord President Kinross in Assets Co Limited v Bain's Trustees (1904) 6 F. 692 at p.705 (the decision in the House of Lords, reported at (1907) 7 F. (H.L.) 104 does not affect this statement). The passage concluded with this sentence:

The plea of mora, taciturnity and acquiescence is a plea to the merits: Halley v Watt 1956 S.C. 370. The definition in Assets Co Limited v Bain's Trustees is more readily applicable to a case involving private rights, but in a series of decisions it has been held to be applicable in the field of judicial review. Reference was made during the course of the hearing to Hanlon v Traffic Commissioner 1988 S.L.T. 802, Watt v Secretary of State for Scotland [1991] 3 C.M.L.R. 429, Atherton v Strathclyde Regional Council 1995 S.L.T. 557, Conway v Secretary of State for Scotland 1996 S.L.T. 689, Ingle v Ingle's Trustees 1999 S.L.T. 650 and Noble v City of Glasgow Council, 18 January 2000, unreported. It does not appear to me to be possible to define the plea of mora, taciturnity and acquiescence more precisely than the dictum in Assets Co Limited v Bain's Trustees to which I have made reference. The plea is necessarily Protean and it must depend on the particular circumstances of the case whether or not its requirements are satisfied. There may be cases where the passage of time, as related to the surrounding circumstances, may be such as to yield the inference of acquiescence in the decision in question. Usually, there will have been such alteration of position on the part of one of the parties, or of third parties, as, together with the passage of time, to yield the inference of acquiescence. The petitioner may, however, be in a position to put forward an explanation for the delay sufficient to rebut the inference. The concept of detriment to good administration appears to me to have a part to play in all of this, not as an abstraction but where further administrative action has been taken in the belief that the decision in question has been acquiesced in. In practice, in the field of immigration law, the approach in Scotland may not be very different from that in England when consideration is being given to the question whether there is good reason for extending the three month time limit: see, for example, R v Secretary of State for the Home Department, Ex parte Oyeleye [1994] Imm. A.R. 268.

[12] I return to the circumstances of the present case, which I have set out above. Counsel for the respondent was not in a position to dispute the explanation given for the petitioner's failure to receive communications from the CAB about his appeal. He submitted, however, that so long had passed between the petitioner's becoming aware of the outcome of the appeal and instructing new agents in April 1998, and the lodging of the present application in May 1999, that it could properly be inferred that he had acquiesced in the determinations. Counsel for the respondent was unable, however, to point to any prejudice, in the form of detriment to good administration or otherwise. This was quite simply because of the delay on the part of the Indian High Commission in the issuing of the necessary travel document. If the respondent had been in a position to take steps to remove the petitioner from the United Kingdom at an earlier stage, there might have been scope for an argument that the delay in lodging the application was actually detrimental to good administration. No doubt, however, the issue of fresh removal directions would have triggered an earlier application. Counsel for the petitioner explained that his present agents had more pressing applications to deal with and that this one was not regarded as being urgent for the very reason that I have just discussed. The position would have been different if there had been reason for urgency. It needs to be remembered that the petitioner has claimed asylum for a Convention reason and that I require to assume at this stage that he has a good case for arguing that the adverse determinations should be reduced. Taking account of all these considerations, I am not satisfied that there is justification for sustaining the plea of mora, taciturnity and acquiescence at this stage.

[13] In the result, therefore, (1) there is in my opinion no basis in law for a separate plea of unreasonable delay, and I shall accordingly repel the first plea-in-law for the respondent, and (2) as agreed by counsel, and since it is a plea to the merits which may require reconsideration when other aspects of the merits are considered, I shall neither sustain nor repel the second plea-in-law for the respondent, but shall leave it standing for the time being. I shall allow a further continued first hearing at which the remaining issues can be discussed.