Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 121
P1436/08	OPINION OF LORD PENTLAND in the Petition of Ms T P (AP) Petitioner; against THE ADVOCATE GENERAL FOR SCOTLAND Respondent: for JUDICIAL REVIEW OF DECISIONS OF THE SECRETARY OF STATE FOR THE HOME DEPARTMENT TO DETAIN THE PETITIONER ­­­­­­­­­­­­­­­­­________________

Petitioner: O'Neill QC; Caskie, Drummond Miller LLP, (for Hamilton Burns, WS, Glasgow)

Respondent: Tyre QC; Lindsay, C Mullin

21 August 2009

Introduction

[1] The petitioner, who was born on 11 February 1980, is a Jamaican citizen. According to the averments in paragraph 5.2 of her petition for judicial review, she lived for a period of about five years in the United Kingdom when she was a child before returning to Jamaica in about 1992 or 1993. The course of events which has given rise to the present case began, however, on 18 October 2000 when the petitioner again came to the United Kingdom, this time accompanied by her two children, who were then aged three and nearly one. The three of them were granted leave to enter for six months as visitors. As will become apparent, more than eight years after the expiry of that temporary permission the petitioner and her children remain in the United Kingdom; the petitioner at Yarl's Wood Immigration Removal Centre in Bedfordshire and her children in London where they live with their paternal grandmother. The petitioner has been detained under the authority of the Secretary of State for the Home Department ("the respondent") since 1 June 2007 pending the making of a deportation order against her. In the present proceedings the petitioner challenges the legality of her detention.

[2] This petition for judicial review came before me for a First Hearing. The petitioner sought declarator that the decisions of the respondent to detain her from 1 June 2007 to the present time were unlawful; she craved reduction of those decisions. At the outset of the First Hearing I was informed that the petitioner also intended to seek a finding from the court that she was entitled to damages (including vindicatory damages) for unlawful detention, but after the petitioner's junior counsel had addressed the court for the whole of the first two days of the four day hearing without even reaching the damages aspect of the case, parties agreed that all questions relating to damages should be reserved for possible consideration in the future. The respondent sought refusal of the petition.

[3] In order to explain the issues which arise in the present case I shall have to set out some of the factual background.

The Facts
[4] As already mentioned, the petitioner and her children were granted leave to enter the United Kingdom for a period limited to six months in the capacity of visitors. After that permission expired in about April 2001 the petitioner elected not to return to Jamaica, but instead to remain without permission in this country. She took no steps to regularise her or the children's immigration status. I should explain that before the petitioner and her children came here there were, according to the petitioner's averments, already a number of other family members in the United Kingdom. In particular, the man who is the father of the children was here (he and the petitioner have never been married to one another) as were his mother and also the petitioner's mother. What appears to have happened is that the petitioner and the children lived for some time in Jamaica with the father and his mother. At some stage (exactly when is not clear) the father and his mother came to the United Kingdom. The petitioner followed with the children thereafter.

[5] It would seem that between their arrival in the United Kingdom in October 2000 and about May 2006 the petitioner and her children lived with the paternal grandmother, that lady's husband and their children in London.

[6] The petitioner next came to the attention of the authorities on 31 May 2006 when the police detained her as she disembarked from a train at Aberdeen Railway Station. She was found to be carrying quantities of diamorphine and "crack" cocaine with an estimated street value of about £78,500. She was prosecuted in the High Court of Justiciary and pled guilty on 27 July 2006 to two charges of contravening section 4(3)(b) of the Misuse of Drugs Act 1971, as amended. On 18 August 2006 Lady Dorrian imposed a cumulo sentence of two years imprisonment in respect of both charges, to run from 2 June 2006, the date on which she had been committed for further examination in custody. I was informed by counsel for the petitioner that the Crown accepted, for the purposes of the guilty plea, that the petitioner's rôle in the supplying of these Class A drugs had been that of a courier and that following her apprehension she provided information to the police which they regarded as being helpful. The petitioner was a first offender. The Crown did not move the court to make a recommendation to the respondent, under section 3(6) of the Immigration Act 1971 as amended ("the 1971 Act"), that the petitioner should be deported on completion of her sentence. The reason for this was not explained to me.

[7] The petitioner was due to be released from prison, having served one half of her sentence, on 1 June 2007. I understand that while she was in prison her children continued to live with their paternal grandmother and her family in London where indeed they still reside to this day. On 23 October 2006 the respondent served notice on the petitioner indicating that he was considering whether to deport her in view of her criminal convictions. He sought reasons why he should not do so. The petitioner made representations against deportation. Then on 11 April 2007 the respondent, having considered the petitioner's representations, intimated that he had concluded that her deportation would be conducive to the public good. The reasons given were, in short, that she had overstayed in the United Kingdom, had made no attempt to regularise her stay and had been convicted of particularly serious criminal offences. Accordingly, the respondent intimated that he had decided to make an order by virtue of section 3(5)(a) of the 1971 Act, requiring the petitioner to leave the United Kingdom and prohibiting her from re-entering while the order was in force. The petitioner thus became liable to deportation. She appealed timeously (on 16 April 2007) against that decision (known as the Notice of Intention to Deport) under section 82(1) of the Nationality, Immigration and Asylum Act 2002 to the Asylum & Immigration Tribunal ("the Tribunal"). The appeal had to be lodged within five business days after service of the notice.

[8] On the date when she was due to be released from prison (1 June 2007) the petitioner was duly ordered to be detained under the authority of the respondent in terms of the power conferred by paragraph 2(2) of Schedule 3 to the 1971 Act "pending the making of the deportation order". That paragraph provides:

"Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (Notice of Decision) of a decision to make a deportation order against him... he may be detained under the authority of the Secretary of State pending the making of the deportation order."

[9] By letter dated 11 July 2007 the Immigration and Nationality Directorate of the Home Office advised the petitioner why the respondent was satisfied that her detention was justified under the powers contained in Schedule 3 to the 1971 Act. The reason given was that the petitioner was likely to abscond if given temporary admission or release. At first the petitioner was detained in Dungavel House Immigration Removal Centre. In or about September 2008 she was transferred to Yarl's Wood Immigration Removal Centre where she remains.

[10] The most important steps in the various legal procedures subsequently invoked by the petitioner to challenge her deportation and detention may be summarised as follows:

• 29 July 2007 - the Tribunal dismissed the petitioner's appeal against the decision to deport her.
• 15 August 2007 - the Tribunal refused the petitioner's application (made on 2 August 2007) for reconsideration of the decision of 29 July 2007.
• 23 August 2007 - the petitioner applied to the Court of Session for an order directing the Tribunal to reconsider the decision to dismiss her appeal.
• 23 January 2008 - the Court of Session (Lady Paton) ordered the Tribunal to reconsider its decision to dismiss the petitioner's appeal on the ground that the Immigration Judge may have erred in law.
• 14 March 2008 - Immigration Judge Blair refused to release the petitioner on bail.
• 1 May 2008 - the Tribunal decided that the original dismissal of the petitioner's appeal on 29 July 2007 had been vitiated by error of law and adjourned the case for a re-hearing.
• 1 July 2008 - Immigration Judge Scobbie refused a further bail application made by the petitioner.
• 5 August 2008 - a First Order was granted in the present petition for judicial review. The date assigned for a First Hearing was 12 November 2008.
• 28 September 2008 - following a re-hearing of the appeal, in the course of which further evidence was adduced on behalf of the petitioner, the Tribunal rejected the petitioner's contention that deportation would amount to an infringement of her rights under Article 8 of the European Convention on Human Rights ("ECHR") and accordingly of new dismissed her appeal against the decision to deport her.
• 7 October 2008 - the Tribunal refused an application for leave to appeal to the Inner House of the Court of Session against its decision of 28 September 2008 dismissing the petitioner's appeal against the decision to deport her.
• 16 October 2008 - on the Respondent's unopposed motion, the First Hearing set down for 12 November 2008 in the present petition was discharged.
• 17 November 2008 - the petitioner lodged an application for leave to appeal to the Inner House of the Court of Session against the Tribunal's decision to dismiss her appeal against the decision to deport her.
• 29 January 2009 - on joint motion of the parties, the Continued First Hearing set down for this date in the present petition for judicial review was discharged; the petition was allowed to be amended in terms of a Minute of Amendment for the petitioner; and a further Continued First Hearing was assigned for 26 February 2009.
• 6 February 2009 - Lord Brodie refused the petitioner's application for interim liberation in the present petition for judicial review.
• 20 February 2009 - Lord Brodie granted leave to reclaim against his interlocutor of 6 February 2009.
• 20 March 2009 - an Extra Division refused a reclaiming motion against Lord Brodie's decision. No written Opinion was issued. The petition for judicial review was remitted to the Outer House to proceed as accords.
• 7 May 2009 - the petitioner's application for leave to appeal against the Tribunal's decision called before the Inner House for a one day hearing. The interlocutor states that it was now considered that two days would be required for the hearing. The appeal was continued to a date to be afterwards fixed to allow the petitioner's children and their paternal grandmother to consider whether to apply to be sisted as party minuters to support the application for leave to appeal on Article 8 grounds.
• 23 June 2009 - one day before a further Inner House hearing (in the application for leave to appeal) to consider the position of the petitioner's children and their paternal grandmother, intimation was received from their representatives that the application for leave to intervene would not proceed apparently due, I was informed, to funding or legal aid difficulties.
• 26 June 2009 - the Office of the Solicitor to the Advocate General for Scotland proposed, on behalf of the respondent, that the application for leave to appeal should be set down for two days on the Summar Roll (pilot scheme) in October 2009; this would require two other cases (in which the petitioner's agents also act) to be removed from the Roll. In the course of the First Hearing before me it was confirmed that the petitioner's agents had received instructions to give effect to this proposal. It should be noted, however, that the question as to whether the children and their paternal grandmother will be represented at this hearing has not as yet been resolved.

The right approach for the court to take towards the challenge to the legality of the petitioner's detention

[11] As the debate at the first hearing developed, it became clear that the parties were in broad agreement as to the rôle of the court when it is called upon to consider the lawfulness of administrative detention by the respondent in a case such as the present. In short, the court's function is not merely to rule on whether the decision to detain was reasonable in the sense that it would not have been open to successful challenge on traditional Wednesbury grounds, but rather the court has to decide for itself whether detention was and continues to be lawful. The task for the court in the present context is not, therefore, limited to one of secondary review of a decision already taken by some other authority. The court has to decide not merely whether it was open to the respondent to conclude that the period of detention was reasonable, but whether the period of detention was actually reasonable in the court's own eyes. Support for this being the correct approach may be found, for example, in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 per Toulson LJ at paragraph 62 and per Keene LJ at paragraphs 71 and 74. As Lord Hoffmann explained in the context of a challenge brought under Article 3 of ECHR:

"It is understandable that a judge hearing an application for judicial review should think that he is undertaking a review of the Secretary of State's decision in accordance with normal principles of administrative law, that is to say, that he is reviewing the decision-making process rather than the merits of the decision. In such a case, the court is concerned with whether the Secretary of State gave proper consideration to relevant matters rather than whether she reached what the court would consider to be the right answer. But that is not the correct approach when the challenge is based upon an alleged infringement of a Convention right.... (w)hen breach of a Convention right is in issue, an impeccable decision-making process by the Secretary of State will be of no avail if she actually gets the answer wrong." (R. (Nasseri) v Secretary of State for the Home Department [2009] 2 WLR 1190 at paragraphs 12-14).

I did not understand counsel for the respondent to take issue with the proposition advanced on behalf of the petitioner that this statement correctly reflected the approach which the court should take towards the assessment of the lawfulness of the petitioner's detention in the present case.

[12] The rules which the court must apply in determining for itself whether the detention has been and continues to be lawful are the so-called Hardial Singh principles. Their origin lies in the decision of Woolf J (as he then was) in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 at 706D. His Lordship said this:

"Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained ... pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time."

[13] In Scotland the Hardial Singh principles have been applied in a number of cases in the Outer House of the Court of Session: for examples one may refer to MAS v Secretary of State for the Home Department [2009] CSOH 32 (Lady Smith); and to HK v Secretary of State for the Home Department 2009 SLT 525 (Lord Brodie). Lord Brodie also applied the principles at an earlier stage in the present case when refusing the petitioner's application for interim liberation on 6 February 2009 ([2009] CSOH 25).

[14] In R (I) v Secretary of State for the Home Department [2003] INLR 196 at paragraph 46, Dyson LJ distilled what was said by Woolf J in Hardial Singh into four propositions:

"(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

(iv)             The Secretary of State should act with reasonable diligence and expedition to effect removal."

[15] It seems to me (with respect) that these four propositions helpfully focus the issues on which the court should concentrate in a challenge such as the present one. I shall return to consider how they should be applied to the circumstances of the present case in due course.

The first issue - the effect of the admittedly unlawful policy previously operated by the respondent

[16] The petitioner argued that the decision to detain her had been unlawful from the outset of her period of detention. In particular, her counsel submitted that she had been detained until 2 February 2009 under and in terms of a policy which had been declared to be unlawful by the High Court in England in R (Hassan Abdi & Others) v Secretary of State for the Home Department [2008] EWHC 3166 (Admin) ("Abdi 1"). I was informed that the respondent has appealed against that ruling and that the appeal is pending, but for the purposes of the First Hearing on the present petition counsel for the respondent were prepared to accept that the decision, in so far as it related to the issue of the lawfulness of the respondent's policy, was to be taken as being soundly based. In that case Davis J held that the policy operated by the respondent with effect from April 2006 was unlawful because it contained what amounted to a presumption in favour of detaining foreign national prisoners after completion of their sentences and pending deportation for so long as there was a realistic prospect of removal within a reasonable period of time. Application of such a presumption was held to be unlawful because it was not authorised by the statutory power contained in paragraph 2(2) of Schedule 3 to the 1971 Act. The policy was also held to be unlawful on the ground that it had not been sufficiently published or otherwise made accessible until 9 September 2008. Counsel for the petitioner moved me to pronounce a declaratory order to the effect that the decisions of the respondent to detain the petitioner between 1 June 2007 and 2 February 2009 "were on the basis of an application of an unlawful policy and therefore without lawful authority" (see paragraph 2.1(4) on page 4 on the Note of Argument submitted by senior counsel for the petitioner on the fourth day of the first hearing). The purpose of such a declarator would be, as I understood the submission, to lay the ground for a claim for damages for unlawful detention. Accordingly, the first issue which arises is whether the existence and operation of the admittedly unlawful policy of itself means that the detention of the petitioner during the period when that policy was in force was "without lawful authority", to use the language of the declarator sought by the petitioner.

[17] The argument of the petitioner in relation to this issue was simple. She had been detained during the relevant period under and in terms of and by reason of an unlawful policy. It followed, in particular because of the importance which the law attaches to the liberty of the subject, that her detention during that period had been unlawful. Declarator to that effect should, therefore, be pronounced.

[18] In my opinion, this line of argument is misconceived because it fails to acknowledge sufficiently that it is for the court to consider for itself whether detention was in accordance with the Hardial Singh principles in the particular circumstances of the case. The correct approach, in my view, requires the court to ask itself whether, having regard to the facts and circumstances of the particular case, detention was actually justified. The existence and operation of an unlawful policy is not necessarily determinative of that question in my opinion. It seems to me that if the respondent can establish that the decision to detain complied with the Hardial Singh principles then it follows that the detention was lawful and it does not matter that the petitioner was detained under and in terms of and by reason of an unlawful policy. I find support for this approach, which is (at least in a broad sense) based upon familiar principles of causation, in the reasoning of Lord Slynn in R (Saddi) v Secretary of State for the Home Department [2002] 1 WLR 3131 at page 3146 (paragraph 48) where his Lordship agreed with the approach taken by Collins J at first instance to the effect that a failure to provide proper reasons for detention did not of itself render the detention unlawful - because the claimants would lawfully have been detained anyway. Lord Slynn said this:

"I agree with (Collins J) that even on his approach the failure to give the right reason for detention and the giving of no or wrong reasons did not in the end affect the legality of the detention."

The same line of reasoning is to be found in the judgment of Laws LJ in R (SK) v Secretary of State for the Home Department [2009] 2 All ER 365 at paragraphs 33-35. In particular, his Lordship held that while compliance with the system of regular monitoring of detention was a highly desirable means of ensuring that the Hardial Singh principles were fulfilled, such compliance was not itself one of those principles. The applicable "rules" were to be taken to be the Hardial Singh principles. Their fulfilment in any given case saved a detention from the vice of arbitrariness. At paragraph 47 Keene LJ agreed with Laws LJ on this aspect - compliance with the requirement for regular reviews of detention was, his Lordship said, not "a precondition for the exercise by the (respondent) of his powers contained in Schedule 3 to the (1971 Act)". I note also that Davis J took a similar view on the "causation" issue in Abdi 1 between paragraphs 129 and 148. I for my part, in line with the reasoning of the learned judges to whom I have referred, conclude that the petitioner is not entitled to the declarator she seeks merely because she was detained for the period between 1 June 2007 and 2 February 2009 on the basis of the application of an unlawful policy. In my opinion, the facts (which are admitted by the respondent for the purposes of the present case) that the policy was unlawful and that the petitioner was detained by reason of it do not in themselves lead inexorably to the conclusion that the petitioner was detained without lawful authority. The question whether the petitioner has been lawfully detained falls to be answered, in my view, by considering whether the statutory power to detain was exercised in accordance with the Hardial Singh principles. If the detention complied with those principles, it seems to me that it makes no sense to hold that it was nonetheless unlawful. I accordingly reject the petitioner's argument that she is automatically to be held to have been unlawfully detained because of the existence and operation of the unlawful policy. In my opinion, it is necessary to go on to consider whether the detention complied, in any event, with the Hardial Singh principles. I shall come to address that question later.

The second issue - alleged unlawfulness of the respondent's revised policy

[19] The next issue which falls to be considered arises from the petitioner's argument that the latest revised policy, which was introduced by the respondent in about February 2009, continues to be unlawful. The policy is contained in chapter 55 of the respondent's Enforcement Instructions and Guidance (Production 7/48). Counsel for the petitioner argued that the changes introduced in about February 2009 still reflected a presumption in favour of detention for persons such as the petitioner on the basis of nothing more than the fact that she had been convicted of a drugs offence of greater gravity than simple "minor possession". My attention was drawn to part of paragraph 55.3.2.1 of the revised policy, which states inter alia:

"Where a time served foreign national prisoner has a conviction for an offence in the list below, particularly substantial weight should be given to the public protection criterion in 55.3.1 above when considering whether release on restrictions is appropriate. In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling because of the significant risk of harm to the public posed by those convicted of violent, sexual, drug-related and other serious offences. In practice, release is likely to be appropriate only in exceptional cases."

The list referred to includes "all drugs offences except minor possession". It was argued on behalf of the petitioner that in effect what was being said in this section of the policy was that there was a presumption in favour of detention even after February 2009 in relation to a foreign national prisoner in the position of the petitioner. Although she had been convicted in July 2006 of a drugs-related offence other than simple possession, she was a first offender who had co-operated with the authorities. She had received a sentence of two years, which was at the lower end of the scale for the nature of the offence in question. It was submitted that none of the factors and circumstances specific to her conviction was referred to or relied upon by the respondent in deciding to continue to detain the petitioner.

[20] In my judgment, the petitioner's attack on the legality of the revised policy must be rejected. I consider that the revised policy properly recognises the importance of the presumption in favour of early admission or release and the need for individual consideration of the circumstances of each case. This is evident, for example, from paragraph 55.1.1 and 55.1.2. The latter paragraph refers specifically to cases concerning foreign national prisoners and states inter alia that the starting point in these cases remains that the person should be released on temporary admission or release unless the circumstances of the case require the use of detention. As Davis J pointed out in the sequel to the Abdi 1 decision (R (Abdi) v Secretary of State for the Home Department [2009] EWHC 1324 ("Abdi 2")) at paragraph 9, the revised Enforcement Instructions and Guidance repeatedly stress (i) the starting presumption in favour of early release; (ii) that all reasonable alternatives to detention must be considered and (iii) that each case must be considered on its own merits. This may be seen, for example, from consideration of the full text of paragraph 55.3.2.1 itself where it is specifically stated that the guidance on the detention of foreign national prisoners should be read with the earlier guidance in paragraph 55.3.1; that earlier guidance is to the effect that all relevant factors must be taken into account when considering the need for detention. I note also that in paragraph 55.3.A dealing specifically with foreign national prisoners there is explicit reference to the presumption in favour of temporary admission or temporary release. That section of the Guidance goes on to state that detention will not be lawful where it would exceed the period reasonably necessary for the purpose of removal. It then explains that in assessing what is a reasonable period in any individual case, the caseworker must look at all relevant factors to (sic) that case, including the particular risks of re-offending and of absconding which the individual poses. All of this seems to me to be entirely appropriate. In the circumstances, I am not persuaded by the petitioner's argument that there is any continuing illegality in the revised policy brought into effect in about February 2009. I find myself in agreement with Davis J in paragraph 9 of Abdi 2 that there is nothing contained in the revised Guidance which has the effect of precluding proper and specific consideration of the circumstances in each individual case; nor do I see anything in the revised guidance which is unduly prescriptive so as, in effect, to reintroduce a rebuttable presumption in favour of detention.

The third issue - have the Hardial Singh principles been respected?
[21] I turn then to consider whether, in the particular circumstances of the petitioner's case, her detention has been or has now become unreasonable in the sense that it has been in breach at any stage of the Hardial Singh principles. The petitioner sought to argue that the respondent's decision to detain her had always been unlawful because it was or should have been apparent from the date on which her detention began that there was no prospect of deportation being effected within a reasonable period of time. The basis for this proposition was that before 1 June 2007 (i.e. the date on which her detention began) the petitioner had appealed against the proposal to deport her and there had never been any prospect, it was said, of such a challenge being resolved within a reasonable time.

[22] In my opinion, this line of argument is unsound. In the first place, it seems to me to be at least open to serious question whether a person in the position of the petitioner should be entitled to invoke any degree of delay necessarily occasioned by her own appeal against deportation to support a contention that her removal will not be effected within a reasonable time (cf. R (I) v Secretary of State for the Home Department supra per Simon Brown LJ at paragraphs 34 and 35). The petitioner's submission amounted to an argument that for so long as any proceedings to challenge her deportation remained in subsistence it could not ever be said that she would be deported within a reasonable period of time; this was because it was inevitable, so the argument ran, that the proceedings would last for a substantial period of time. That seems to me to be too sweeping an assertion. The petitioner sought to support it by reference to Nadarajah v Secretary of State for the Home Department [2003] EWCA Civ 1768, but that case concerned a different issue, namely the validity of the respondent's policy not to treat mere intimation of an intention to bring proceedings challenging the right to remove as sufficient to show that removal was not imminent. If one thinks about the position at the start of the period of detention, for example, why should it have been assumed by the respondent at that stage that the petitioner's appeal would be bound to take any longer than a relatively short and hence reasonable period to be resolved? Then if one looks back at the whole chronology of events in relation to the appeal and the present petition for judicial review, it seems to me that there has not ever been a point in time at which it can justifiably be said that the respondent should have taken the view that the petitioner's challenges to the deportation would not be determined within a reasonable period of time. The fallacy in the petitioner's argument, as it seems to me, lies in the fact that it now seeks to rely upon the entire span of time since the outset of the petitioner's detention to support the contention that the respondent should have appreciated right at the start that the period of detention would be of an unreasonable duration. That is not, I think, a legitimate approach, not least because it relies heavily upon hindsight. Another difficulty with the petitioner's argument, in my view, is that it fails to recognise that the actual and anticipated length of the legal procedures initiated by the petitioner should not be considered in isolation from other factors which may have a bearing on the question of the reasonableness of the period of detention, such as the risks of absconding or the commission of further criminal offences.

[23] It seems to me that the correct question to ask when considering the relevance of the various legal procedures invoked by the petitioner is focussed in point (iii) (and to some extent in point (ii)) of Dyson LJ's reformulation of the Hardial Singh principles in R (I) v Secretary of State for the Home Department supra - has there been a stage at which it could be said that there was no prospect of the petitioner being deported within a reasonable time because of the duration or expected duration of the various legal proceedings? Looking at the history and progress of the legal challenges to deportation brought by the petitioner, it does not seem to me that it can justifiably be contended that at any point these could not have been expected to be concluded within a reasonable period. The appeal and the present application for judicial review have progressed steadily and without undue delay through their various stages. No doubt it may now be said that the litigation process viewed as a whole has been somewhat protracted. But that, as it seems to me, is the natural result of the twists and turns that the appeal and the judicial review have taken. As matters now stand, I am entirely satisfied that the respondent is doing all that is possible to ensure that the application for leave to appeal is determined by the Inner House in the near future; the latest position is that it will be heard in October 2009. In the whole circumstances, I am not persuaded that there has ever been a stage at which the detention has become unreasonable on the sole ground that the petitioner's challenges to it could not have been expected to be resolved within a reasonable period of time.

[24] It is clear that from the outset of the period of the petitioner's detention the respondent intended to deport her and there is no basis for supposing that the power of detention was being used for any purpose other than to facilitate the proposed deportation. In practical terms there would appear to be no difficulty in arranging for the deportation of the petitioner within a short timescale. Appropriate travel documentation has been approved by the Jamaican High Commission. Therefore it is clear, as it seems to me, that the first of the Hardial Singh principles as restated by Dyson LJ in R (I) v Secretary of State for the Home Department supra has always been satisfied. The fourth principle is that the respondent should act with reasonable diligence and expedition to effect removal. There is no basis for saying that the respondent has not done so in the present case.

[25] The questions which remain then resolve themselves into asking whether in all the circumstances the petitioner has been detained for a period that is unreasonable (i.e. the second Hardial Singh principle) and/or whether it should have become apparent at some stage that it would not be feasible to effect deportation within that reasonable period (i.e. the third Hardial Singh principle). I have already dealt with the petitioner's stand alone argument based on alleged breach of the third principle. In R(I) v Secretary of State for the Home Department supra Dyson LJ said this at paragraph 48 with regard to identifying the circumstances which are relevant for the purpose of carrying out a reasonableness assessment:

"It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."

It is true, of course, that the petitioner has by now been detained for nearly two years and three months. This is, no doubt, a lengthy period. There is, however, no automatic cut-off point after which continued detention becomes unlawful. As Sir George Newman said in Jamshidi v Secretary of State for the Home Department [2008] EWHC 1990 (Admin) at paragraph 35:

"What then should I conclude about the other aspects of the case, which are relied upon as to the unlawfulness of the very period of time to date? Well, 31 months is plainly something which puts the court very much on the alert. But there is no set sign-off time. There is no particular period of time which will in itself, simply because of the period of time, be determinative of the issue of legality of the detention. One must have regard to all the circumstances of each case."

[26] Whilst acknowledging that the petitioner has been detained for a lengthy period of time, I turn then to consider the other factors relied upon by the respondent to support the reasonableness of the detention.

[27] In my opinion, the most cogent of the relevant considerations relied upon is the risk that if she is released from detention the petitioner will abscond. Such a risk was said by Toulson LJ in R (A) v Secretary of State for the Home Department supra to be often a decisive factor (at paragraph 54). The risk of absconding was the reason originally given by the respondent for authorising the petitioner's detention and I note from the large volume of documentation produced that it is a consideration which has been consistently relied upon by the respondent when conducting the regular reviews of the petitioner's case. In my opinion, this concern as to the risk of absconding is entirely justified in the circumstances of the present case. The petitioner has already shown, by her conduct, a serious disregard for the law. She chose to remain illegally in the United Kingdom for a prolonged period after the expiry of her temporary leave to enter and at no stage took any steps to regularise her or her children's immigration status. She then committed serious criminal offences which involved her being concerned in the supplying of a high value consignment of Class A drugs in Scotland. I note also from the information contained in the detention review documentation that when enquiries were made about the location of the petitioner's passport she at first advised that it was with her mother; later she said that the passport had been burnt. Moreover, when interviews were sought to be arranged for the purpose of obtaining emergency travel documentation for the petitioner and her children, she refused to cooperate. In my assessment, the petitioner's serious infringements of the criminal and immigration laws of this country as well as her failure to cooperate with the authorities in regard to the making of travel arrangements and her apparent change of story in regard to her passport are all considerations that call seriously into question whether she could be trusted to comply with any restrictions which might be put in place (whether by agreement or otherwise) if she were no longer to be detained. As regards the possible use of restrictions such as electronic monitoring in the event that the petitioner was to be liberated, I was informed by counsel for the respondent that none of the available technology could entirely protect against the risk of absconding. There was no GPS based system; this meant that a person could only be effectively monitored when he or she remained within a certain radius of a detection station. Moreover, it has been shown to be possible for the electronic tags to be removed or damaged. The most that the available technology was capable of providing, according to counsel for the respondent, was an earlier warning of absconding than would otherwise be the case.

[28] In my judgment, there is a serious danger that in the event that the petitioner was now to be released from detention she would be likely to abscond in order to avoid the possibility of deportation. On the basis of the information provided to me by counsel for the respondent, I cannot be satisfied that the putting in place of any conditions or restrictions would sufficiently guard against that risk (cf. HK v Secretary of State for the Home Department supra). In view of the outcome of the various stages of her appeal thus far the petitioner may well entertain no sense of optimism about her prospects of succeeding in establishing an entitlement to reside in this country. As regards the petitioner's children, the unhappy fact is that they have lived apart from her for several years and, I was given to understand, visits have been infrequent; the information in the detention reviews is that they are now under the guardianship of their paternal grandmother. In the circumstances, I am not persuaded that the children can be viewed as representing a significant disincentive to the petitioner deciding to abscond.

[29] As to the risk that the petitioner will re-offend if she is now released, this cannot be discounted in my opinion. The papers contain some indications that while in Dungavel she became involved in what is described in a transfer request from the Operations Manager (Security) dated 6 September 2008 as the "drug scene" within that establishment. Several security reports were apparently received to the effect that the petitioner was holding drugs for certain Jamaican men in the Centre, although the information was uncorroborated and searches did not reveal any substantial evidence (production 7/50). I understand that following this report the decision was taken to transfer the petitioner to Yarl's Wood Immigration Removal Centre. Her subsequent requests to be returned to Dungavel were refused. One must, of course, approach information of this nature with considerable caution and counsel for the respondent did not seek to place particular reliance on it. Nonetheless, I do not consider that it would be right to ignore altogether information of this type which has come to the attention of the management of an establishment such as an Immigration Removal Centre. Of greater importance, in my view, is the fact that the petitioner has been convicted of serious drugs offences involving a substantial quantity and high value of Class A drugs. The fact that she has been convicted of these offences must in itself give rise to some degree of risk that if released she will reoffend. Overall, I accept that the information available to support a danger of reoffending is not especially substantial, but nonetheless it cannot be said, in my opinion, that there is no reason for concern on that front. In the whole circumstances, I consider that this factor is entitled to be given some relatively minor weight.

[30] The respondent argued that the reasonableness of the petitioner's detention was also supported by the fact that she has refused voluntary repatriation. Reliance was placed upon a passage in the judgement of Toulson LJ in R (A) v Secretary of State for the Home Department supra (at paragraph 54)where his Lordship observed that a refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because:

"... there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individual's continued detention is a product of his own making."

In the present case, the respondent pointed to the fact that all the necessary practical and administrative arrangements to allow the petitioner to return to Jamaica with her children could be made in early course. It was argued that, in these circumstances, the current restrictions on the petitioner's liberty are the result of her own conduct and decisions.

[31] I do not accept this aspect of the respondent's argument. The situation in the present case may be distinguished from the circumstances in R (A) v Secretary of State for the Home Department supra where A's appeals against the decision to make a deportation order and the refusal of his asylum and associated claims under Articles 2, 3 and 8 of ECHR had all been dismissed by an Immigration Adjudicator and the time for any further appeal had expired. In contrast to that set of circumstances, the present petitioner is continuing to pursue her appeal against the making of a deportation order and that appeal is unresolved as matters currently stand. Should the appeal succeed the petitioner will have substantially improved her prospects of establishing the right to remain in the United Kingdom. In these circumstances, it does not seem to me to be right or fair to criticise the petitioner for refusing voluntary repatriation.

[32] Looking at the whole picture and at all the relevant considerations, however, I conclude that the detention of the petitioner has at all times been reasonable and that it continues to be reasonable at the present time. To summarise the various considerations as I see them:

(i) There is, in my view, a substantial risk that the petitioner will abscond if now released from detention.

(ii) There is also some risk (which cannot be dismissed as negligible) that she will re-offend.

(iii) Any delay which has occurred in deporting the petitioner has arisen as a result of the legal steps she has taken with a view to challenging the proposed deportation and has not been due to delay for which the respondent can be held responsible.

(iv) There are no barriers to the swift deportation of the petitioner to Jamaica.

(v) There has been no lack of expedition on the part of the respondent.

Viewing matters through an Article 5 ECHR lens, it seems to me that it cannot be said that the detention has ever been arbitrary or disproportionate. Nor do I consider that it has been resorted to in bad faith. In my opinion, the petitioner is not entitled to any of the remedies she seeks in the present petition for judicial review. I shall, therefore, sustain the respondent's third plea-in-law and refuse the petition.

[33] I would only add that, in reaching my decision, I have not overlooked the submissions advanced on behalf of the petitioner based on what is referred to in her Note of Argument as the presumption in favour of liberty in Scots Law (see section 5 of the Note). In my opinion, these submissions added nothing of substance to the debate, as I understood counsel for the petitioner ultimately to accept. The approach which the courts on both sides of the border have developed in recent years in the context of reviewing the legality of administrative detention seems to me to have been very firmly rooted, as one would expect, in fundamental principles reflecting the right to liberty and security as now enshrined in Article 5 of ECHR. I do not understand there to be any current difference in approach or in practice between the two jurisdictions when it comes to considering the lawfulness in any particular case of the respondent's exercise of the power conferred by paragraph 2(2) of Schedule 3 to the 1971 Act.