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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mushtaq, Re Judicial Review [2005] ScotCS CSOH_173 (08 December 2005)
URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_173.html
Cite as: [2005] CSOH 173, [2005] ScotCS CSOH_173
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Mushtaq, Re Judicial Review [2005] ScotCS CSOH_173 (08 December 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 173 |
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P412/05
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OPINION OF LORD MACPHAIL in the petition ASMAT MUSHTAQ Petitioner: for JUDICIAL REVIEW
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Petitioner: Party
Respondent: A MacSporran; Scottish Executive
8 December 2005
[1] This is a petition for judicial review of a decision to deport the petitioner and to detain her in a detention centre. The petition gives a remarkably incomplete account of her circumstances. The facts are as follows. [2] The petitioner is a citizen of Pakistan. She arrived in the United Kingdom on or about 28 July 2001 on a visitor's visa which entitled her to remain for only six months. By an application dated 7 January 2002 she applied for an extension of stay as a visitor for a further six months. That application was refused on 2 January 2003. On 14 January 2003 the petitioner again applied for an extension. On 30 April 2003 that application was, exceptionally, granted, and her passport was endorsed with an extension of stay until 30 July 2003. That decision did not reach the petitioner because it was sent to an address from which she had removed without advising the Home Office. The letter seeking to communicate the decision to her, and enclosing her passport, was returned to the Home Office, who sent the petitioner's passport to the Pakistan High Commission for safe keeping. No further action was taken by or on behalf of the petitioner until her sister and brother-in-law wrote to the Home Office disclosing her whereabouts and current circumstances on 20 January 2004. In due course she received the various notices appropriate to her status: a notice that she was an illegal entrant and liable to detention, dated 20 December 2004; a notification of temporary admission to a person liable to be detained, dated 10 January 2005; and removal directions dated 1 March 2005. [3] In her petition the petitioner claims that the decision to apprehend and deport her is in all the circumstances unreasonable. She also complains that no formal decision was ever given or delivered to her and that she has a right to have a reasoned reply to her application to extend her visa and if so advised a right to have any such decision judicially reviewed. It cannot be maintained that the decision of which she complains is unreasonable, because it is clear from the foregoing narrative that her entitlement to remain in this country expired on 30 July 2003. It is simply incorrect that no formal decision was ever given or delivered to her. The decision to refuse her first application was given on 2 January 2003 and was communicated to her then agents. The decision of 30 April 2003 did not reach her because she had failed to advise the Home Office of her change of address. She has not made any further application for leave to remain. She does not claim asylum, or that her removal would infringe her rights under the European Convention on Human Rights. The petition is plainly irrelevant. [4] When the case was called this morning the petitioner appeared on her own behalf, accompanied by her brother-in-law. Her command of English is insecure, and I allowed her brother-in-law to speak on her behalf. She moved for an adjournment of the hearing for one week to enable her to instruct lawyers. Counsel for the respondent opposed the motion. [5] The background to the motion is this. The date of today's hearing was intimated to the petitioner on 6 September 2005. On 27 September 2005 the respondent's solicitors received an e-mail from a person named James McDonald who described himself as a member of the Society of Specialist Paralegals. The e-mail bore that the petitioner had chosen him to advise her "on this matter of judicial review". He said he looked forward to receiving the respondent's answers to enable him to prepare a record for the first hearing set down for 8 December 2005 and to take further instructions from counsel in the event that adjustment was required. Whether this person is a qualified person in terms of section 84(1) of the Immigration and Asylum Act 1999, or is entitled to instruct counsel, is not perhaps self-evident. Be that as it may, the respondent's solicitors properly replied that the answers would be intimated directly to the petitioner as she was proceeding in the petition as a party litigant. On 30 November 2005 the respondent's solicitors wrote a very full and fair letter to the petitioner setting out in detail the material facts and the respondent's contentions. On 2 December 2005 the solicitors sent to the petitioner their Answers to the petition and an inventory of productions. The respondent was not, of course, required to lodge Answers (RCS 1994, r 58.5(1)(b)). [6] This morning counsel for the respondent ascertained from the advocate who signed the petition that he had not received any instructions to appear. The petitioner's brother-in-law told me that he had spoken to James McDonald on Monday and the latter had said that he would instruct a lawyer to appear on the petitioner's behalf today. In the event, however, the petitioner was unrepresented. [7] In my opinion an adjournment would not serve any useful purpose, because it is clear that the petition is entirely without merit. The petitioner's position must command some sympathy because if she had received accurate legal advice as to the hopelessness of her position, she no doubt would not have persisted with this application and would have been spared the burden of appearing here today. On the other hand she has had the benefit of a stay of over two years in this country to which she was not entitled. [8] When all is said and done, however, the only possible way of disposing of this petition is to sustain the respondent's first plea-in-law and dismiss the petition, and to find the respondent entitled to his expenses.