Scottish Court of Session Decisions

Radi, Re Judicial Review [2003] ScotCS 78 (20 March 2003)

OUTER HOUSE, COURT OF SESSION
P1275/01	OPINION OF LORD MENZIES in the Petition of ANWAR HOSSEIN RADI Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department   ________________

Petitioner: Sutherland; Skene Edwards, W.S.

Respondent: Maguire, Q.C.; Solicitor to the Advocate General for Scotland

 

20 March 2003

1. The petitioner is an Iraqi national. She entered the United Kingdom with her daughter on 27 July 2001. She made an application for asylum in the United Kingdom on 31 July 2001. The respondent is the Secretary of State for the Home Department, and is responsible for the enforcement of immigration law throughout the United Kingdom. On 22 October 2001 the petitioner attended with her daughter for an asylum screening interview with an immigration officer (for whom the respondent is responsible) at Gatwick airport. At the conclusion of the interview, the immigration officer informed the petitioner that her application for asylum had been refused, and made a decision to detain the petitioner and her daughter. She was served with a form IS82TC (notice of refusal of leave to enter) and a letter certifying her asylum application on third country grounds. She had previously been notified that in accordance with the Conclusions on the Transfer of Asylum Applications under the provisions of the Dublin Convention (London, 30 November and 1 December 1992) a formal request would be made to the Danish immigration authorities for transfer of responsibility for her asylum application on 16 August 2001. On that date a formal request was submitted to the Danish immigration authorities, and by fax dated 9 October 2001, the Danish immigration authorities formally stated that Denmark agreed to take over the petitioner's application according to Article 5(1) of the Dublin Convention.
2. In this petition for judicial review the petitioner seeks declarator that (1) the respondent erred in fact in holding that the petitioner had entered the United Kingdom via Denmark, using the name Zaineb Hamood; (2) the decision of the respondent to certify the petitioner's application in terms of Section 11(2) of the Immigration and Asylum Act 1999 is unreasonable et seperatim unlawful; and (3) the decision of the respondent to remove the petitioner to Denmark is unreasonable et seperatim unlawful. The petitioner further seeks reduction of the decision of the respondent to (1) certify the petitioner's application in terms of Section 11(2) of the Immigration and Asylum Act 1999 and (2) remove the petitioner to Denmark. This matter came before me as a Second Hearing in the judicial review procedure.
3. Parties were agreed that the dispute between them turned on one short matter of fact, namely whether I was satisfied on the evidence before me that the petitioner entered the United Kingdom via a country other than Denmark. Counsel for the petitioner accepted that the onus of proving this rested with the petitioner, and that if I was not satisfied on the evidence before me that the petitioner had entered the United Kingdom by a route which did not involve Denmark, the petitioner was not entitled to the remedies which she sought. The matter for determination was therefore in short compass, and fell to be resolved essentially as a matter of credibility and reliability.
4. Only three witnesses gave evidence. The petitioner gave evidence on her own behalf, with the assistance of an interpreter. For the respondent, evidence was led from two immigration officers, namely Farhana Shaukat and Adrian Lamberth. The petitioner stated that she was born on 1 October 1979 and was a citizen of Iraq. She speaks Arabic, and can read both Arabic and English. She arrived on 27 July 2001 in the United Kingdom with her daughter Sarah Hiedari, born on 23 September 2000. She had left Iraq in 1998 (she could not remember the month) and gone to Iran, where she stayed until 26 July 2000. (I took it from the rest of the evidence that she meant 2001). She had paid an agent to smuggle her and her daughter out of Iran to a safe place. She left Iran with her daughter and this agent. At the airport in Iran she was asked for her passport. She showed a passport which the agent had given to her, which was not her passport, and thereafter the agent took it from her. She also had her Iraqi identification document, but the agent kept this. The agent told her that they were going to catch a flight to Romania. The flight lasted approximately three hours, although she did not have a watch and she was very scared so she could not remember exactly how long the flight took. They landed, and the agent told her that they were in Romania. She did not know the name of the city in Romania where the airport was situated, nor the name of the airport. They stayed in the airport for about two hours; the petitioner said that she spent all this time in the toilet. The agent then gave her a boarding card for a flight to take her to the United Kingdom. The agent never gave her a passport to keep; he stood with her in the queue for the plane, and handed her a passport to show to officials. Immediately she had shown it to the officials, he took it away from her. She did not know the name on the passport. She could not speak any English at that time and saw nothing on the boarding card nor in the airport to indicate what country she was in. The agent did not accompany her on the flight to London Heathrow. This flight took between three and three and a half hours, and landed in daylight hours on the afternoon of 27 July 2001. In the course of the flight, the petitioner said that she tore up and threw away the part of the boarding pass which had been returned to her, as she had been instructed to do by the agent.
5. The petitioner stated that when she and her daughter arrived in Heathrow, she had three items of hand baggage - her handbag, and two other small bags. She had her Iraqi identification paper, her Iraqi citizenship paper and an English dictionary in one of the bags. She did not know the name of the airline which flew her to London, and she did not read the boarding card before she threw it away. She had been in Heathrow for less than half and hour when an official came up to her and asked her what she was doing; she said that she was from Iraq and had no passport. The official took the petitioner and her daughter to an interview room, her luggage being taken on a trolley with them. In the interview room, she said that a man and a woman searched her handbag. They took her Iraq identification document and the dictionary from her, but did not take her Iraqi citizenship paper from her. The man took a flimsy piece of paper from her bag (although the petitioner did not actually see him remove it from the bag) and asked what it was. She agreed that No. 7/3 of process might have been a photocopy of this piece of paper (No. 7/3 of process is a photocopy of an itinerary in the name of Mrs Zaineb Hamood and an infant with the surname Thany and appears to relate to a flight by British Airways from Copenhagen to London Heathrow on 26 July and onwards to Charles de Gaulle airport in Paris on the same date, returning from Paris via Heathrow to Copenhagen on 11 August.) The petitioner stated that she had never seen this piece of paper before and she had no idea how it might have got into her bag. She had never been to Paris and she never had travel documents to go to Paris. The photograph on No. 7/1 of process was not her and she did not recognise the person shown there. It was put to the petitioner that there were no flights from Romania to Heathrow on 27 July 2001; the petitioner replied that the agent told her that she was in Romania and she depended on his word for this. She did not know where she was - she could have been in Canada, Denmark, Australia, she did not know. She denied filling in a visa application to enter the United Kingdom, she denied ever leaving any airport buildings between Iran and Heathrow, and she denied that her journey took more than one day to complete. She left Iran at about 2 am or 3 am, arrived in Romania that same morning, and arrived in Heathrow later that same day.
6. In cross-examination she accepted that she arrived at Heathrow Terminal 1 - it was the same terminal in which she was interviewed by immigration officers some three months later. She agreed that she was wearing a pink jumper when she arrived. She had no passport because the agent took it from her at the check-in desk at Romania. She was given a boarding pass for herself, but not for her daughter; it was the stub of this boarding pass which she threw away on the plane. When the official approached her in Heathrow, he asked her where she was from; she understood this question because she had studied English at school, although not at university, and it was an easy question to understand. She also understood him when he asked her for her passport; she replied "refugee", because the agent had taught her this word. When she was taken to the interview room and the man and woman searched her bag, she was shown the flimsy piece of paper which had similar writing to that on No. 7/3 of process, only for two seconds or so - she did not have an opportunity to read it, and she was adamant she did not have a document like this in her bag. When pressed about this document, she stated that she was very tired and very scared and confused at the time. She was not sure if it came from her luggage. She did not think that they found it in her bag - she thought that perhaps somebody had put it in her bag when she was busy with her daughter, either in Romania or Heathrow. She did not think that the immigration officers would have placed it in her bag, but it was impossible that it was her document and that she put it there. Maybe it was placed there by some unknown person. It was put to the petitioner that on 27 July 2001 there were no flights from Romania that landed at Heathrow Terminal 1, and she replied that the agent told her that she was in Romania, but maybe she was in Denmark, Canada or the USA. She was asked if this had always been her position, and she replied "maybe". She accepted that her solicitors were told several weeks before the second hearing that there was no flight from Romania that arrived at Heathrow Terminal 1, and no direct flight from Iran to Romania on that day. She was asked how she knew that she was in the United Kingdom, and she replied that it had been announced on the plane. She was asked if there were no announcements on the plane before she landed in Romania and she replied that she did not understand English. She accepted that it was only now, when she had been told that she could not have travelled from Romania to Heathrow Terminal 1 that she was speculating that it might have been another country, and she wanted the Court to accept that she had travelled through an airport anywhere in the world but she did not know which airport it was. It was put to her that it was Copenhagen that she travelled through, and she replied that it might have been but she was not sure. She reiterated that No. 7/3 of process was not her document. She denied that she tried to travel to London on 26 July but did not have a visa and had to fly on the following day - she was in the airport for only two hours.
7. Farhana Shaukat was an immigration officer working at Heathrow Terminal 1 in July 2001. On 27 July it was her first day on a surveillance team, and she was "shadowing" Adrian Lamberth. She accompanied Mr Lamberth to an interview room where the petitioner was, because it was Home Office policy that if it was necessary to search a female passenger's bags, a female officer should be present. She remembered that the petitioner was very calm and composed. She saw Mr Lamberth remove a flimsy piece of paper from the petitioner's handbag and she was quite sure that the document was in the petitioner's handbag, although she could not recall precisely if No. 7/3 was the document recovered from the bag. She was present when a photograph which Mr Lamberth had taken of the petitioner was scanned and sent to British Airways in Copenhagen, and she later learnt as a result of the ongoing investigation that British Airways staff at Copenhagen remembered the petitioner in Copenhagen, mainly because she was wearing a very distinctive pink top. Miss Shaukat stated that it was impossible for the document to have come from anywhere else than from the petitioner's luggage - it could not have been mixed up, and neither she nor Mr Lamberth had any other documents with them when they saw her in the interview room, nor were other documents kept in the interview room. Both she and Mr Lamberth were engaged in searching the petitioner's bags, when Mr Lamberth stopped and said "look what I've found" and drew her attention to a document. Miss Shaukat was present when the flight information document was shown to the petitioner. She also identified No. 7/14 of process as a copy of the photograph of the petitioner which was taken that day.
8. Adrian Lamberth was an immigration officer working with a surveillance team at Heathrow Terminal 1 on 27 July 2001. He remembered dealing with the petitioner, whom he identified in Court. He confirmed that Farhana Shaukat had been assigned to "shadow" him that day. He remembered that the petitioner was wearing a striking pink jumper and was accompanied by a small child. He stated that he and Miss Shaukat searched the petitioner's baggage in the presence of the petitioner, in a small interview room. There were no documents or paperwork in the interview room. He could not remember everything that was found in the baggage, but he remembered finding a flight itinerary in the petitioner's bag. He was shown No. 7/3 of process and confirmed that this was a photocopy of the document which he found, the principal of which was a flimsy computer print out. He confirmed that this document was in the same name as he had been given for the petitioner. In accordance with normal practice, some time after finding the document he took a photograph of the petitioner. He confirmed that No. 7/14 of process was a copy of the photograph which he took. He then placed this photograph on computer file, printed off a copy and faxed it to British Airways staff in Copenhagen. Some days afterwards, British Airways in Copenhagen informed him that their staff recognised the petitioner from this photograph, and that she had tried to fly to Heathrow on the previous day but could not do so as she did not have the right visa documents. He confirmed that he had received from British Airways staff at Copenhagen a passenger flight itinerary routing which was No. 7/4 of process. The information which he received from British Airways staff at Copenhagen was that the petitioner, who was travelling with a child, attempted to travel on 26 July 2001; she was with a man who had the same family name as the child. Because she did not have a direct airside transit visa, she was unable to fly to Heathrow on 26 July 2001, and it was necessary for her to obtain such a visa and catch a flight on the following day. He was shown No. 7/1 of process and confirmed that this was the first page of an application for a direct airside transit visa in the name of Zaineb Awad Hamood dated 26 July 2001, which he received from the British Embassy in Copenhagen. The British Embassy in Copenhagen also sent to him a copy of a Danish residence permit in the same name, which was No. 7/2 of process. Mr Lamberth also obtained a passenger flight manifest for the flight from Copenhagen to Heathrow on 27 July 2001, and No. 7/12 of process was an extract from that manifest. Passenger No. 74, Zaineb Hamood and passenger No. 126 Thany, matched the names from the itinerary No. 7/3. Mr Lamberth also confirmed that it was not possible for the petitioner to have arrived from Romania at Terminal 1 at Heathrow in July 2001, because no flights from Romania arrived at Terminal 1.
9. In making his submissions for the petitioner, Mr Sutherland accepted that the question for the determination of the Court was whether, as a matter of fact, the petitioner did travel to the United Kingdom via Copenhagen. He accepted that the onus of proof rested with the petitioner, and that the standard of proof was the balance of probabilities. He submitted that the petitioner's evidence was both credible and reliable, and the fact that she did not try to hide her lack of knowledge as to where she stopped in transit went to strengthen her credibility. By contrast, he submitted that there were a number of inconsistencies in the respondent's position. Why, he wondered, should the agent have given the petitioner a piece of paper with her itinerary on it, when the agent had been at pains to remove everything else from the petitioner which might have identified her route and means of travel to the United Kingdom? Moreover, the respondent appeared to be suggesting that someone had gone to the British Embassy in Copenhagen with an Iraqi passport, a Danish residence permit and a photograph of the petitioner. The photographs on each of these documents would have to be substantially similar, as it could be anticipated that the application for a direct airside transit visa would be scrutinised to ensure that it was being granted to the correct person. A brief comparison of the photographs on No. 7/1 and No. 7/2 of process with the photograph taken of the petitioner at Heathrow, No. 7/14 of process, showed that the petitioner did not resemble the person shown on the other documents. He submitted that it was inherently unlikely that the petitioner would have been allowed to board the plane using such a visa. It was more likely that the British Airways staff in Copenhagen made a mistaken identification of the petitioner on the basis of a faxed copy of the photograph. He invited me to prefer the evidence of the petitioner to that for the respondent, and to sustain the petitioner's pleas in law.
10. Miss Maguire submitted that there was ample evidence to establish, on the balance of probabilities, that the petitioner entered the United Kingdom on 27 July 2001 from Copenhagen, and that she did so in the name of Zaineb Hamood. The evidence established that the flight itinerary (a copy of which was No. 7/3 of process) was found in the petitioner's baggage by Mr Lamberth, and the petitioner could give no satisfactory explanation as to how it got there without her knowledge. It was unlikely that this document was placed in her luggage by some unknown person. The immigration officers' enquiries showed that a female passenger and child travelled to the United Kingdom from Copenhagen on 27 July 2001 under the names Hamood and Thany, and the Court should be satisfied that the petitioner and her daughter were these passengers. This was supported by the evidence relating to Mr Lamberth taking a photograph of the petitioner and subsequently receiving confirmation from British Airways staff in Copenhagen that it was the petitioner who had travelled from Copenhagen on 27 July 2001, having attempted to travel on the previous day but failed because of the absence of a transit visa. Moreover, the petitioner's explanation as to how she arrived in Heathrow Terminal 1 was not satisfactory; originally she maintained that she had travelled from Iran via Romania, but when faced with the fact that there were no flights from Romania which arrived at Terminal 1, she changed her position and maintained that she could have come from any airport in the world. Miss Maguire submitted that the Court should not accept that the petitioner, who had received a university education and who had previously studied English at school, was completely unaware of the airport, or even the country, in which she spent some hours in transit. All the evidence pointed to the conclusion that the petitioner and her daughter were the passengers on the flight from Copenhagen to London, as detailed on the flight manifest No. 7/12 of process.
11. I considered that Miss Maguire's submissions were well-founded. I did not consider that the petitioner was a credible or reliable witness. Although I made allowances for the fact that she gave her evidence with the assistance of an interpreter, and that she may have felt ill at ease and vulnerable as an asylum seeker in a strange country, I was not persuaded that she had travelled to Heathrow from Romania. On the contrary, I considered that she probably did travel to Heathrow from Copenhagen. It seemed to me to be inherently unlikely that someone would "plant" the flight itinerary (No. 7/3 of process) in her baggage. Moreover, the names on that itinerary matched the names shown in the flight manifest for the relevant flight (No. 7/12 of process). The petitioner was found within Terminal 1 at Heathrow on 27 July 2001; there were no flights from Romania that were received at Terminal 1 at Heathrow in July 2001. The petitioner herself could not exclude the possibility that she had travelled from Denmark - indeed, her position came to be that she did not know where she had come from. I had difficulty in accepting that an educated woman (albeit not one who spoke much English) could have spent approximately two hours in an airport and not formed any impression as to what country that airport was situated in. I found difficulty in accepting that she did not notice the identity of the airline which was carrying her to London, either from the boarding card which she had in her possession or from other pieces of information in the airport or the plane itself. Moreover, although not necessary for the conclusion which I have reached, the evidence regarding the reaction of British Airways staff in Copenhagen supports that conclusion; the petitioner was wearing a striking pink jumper when she was questioned in Heathrow on 27 July 2001 and had a young child with her, and the staff at Copenhagen airport remembered the petitioner principally because she was wearing a striking pink jumper, although they also recognised her from the photograph of her which Mr Lamberth faxed to them (No. 7/14 of process). Each of these adminicles of evidence suggest that the petitioner did not fly to Heathrow from Romania, but rather that she flew to Heathrow from Copenhagen. Moreover, although as I have indicated above, I made allowances for the situation in which the petitioner found herself, I was not impressed by her demeanour when giving evidence. Many of her answers to questions were vague, contradictory or evasive. I did not find her to be an impressive witness.
12. In the result I am satisfied on the balance of probabilities that the petitioner did indeed enter the United Kingdom via Denmark. I therefore repel the petitioner's pleas in law and refuse the petition.