OUTER HOUSE, COURT OF
SESSION
[2009] CSOH NUMBER25
|
|
OPINION
OF LORD BRODIE
in
the Petition of
TP
Pursuer;
For
Judicial
Review of decisions of the Secretary of State for the Home Department
Defenders:
ннннннннннннннннн________________
|
Pursuers: Caskie;
Drummond Miller LLP
Defenders: Lindsay; Office of the Solicitor to the Advocate
General
20 February 2009
Introduction
[1] The petitioner was born on 11 February 1980. She is the mother of two
children born respectively on 20 August 1997 and 26 November 1999. She is a citizen of Jamaica. She arrived in the United Kingdom accompanied by her children on 18 October 2000. She and the children were
granted Leave to Enter as visitors for a period of six months. The petitioner is presently detained under
the authority of the respondent, the Secretary of State for the Home
Department, in terms of paragraph 2(2) of schedule 3 to the Immigration
Act 1971, as amended, and has been since becoming entitled to be released
from a sentence of two years imprisonment imposed in the High Court in
Edinburgh on 18 August 2006 in respect of the petitioner's
contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. The petitioner's children reside with their
grandmother in England.
The petition
[2] In this petition for judicial review,
the petitioner seeks declarator that her continued detention is unlawful,
payment of damages and other orders, including liberation and interim
liberation.
[3] Paragraph 2 (2)
of schedule 3 to the 1971 Act provides:
"Where notice has been given to a person in accordance with
regulations under section 105 of the Nationality Immigration Asylum
Act 2002 (notice of decision) of a decision to make a deportation order
against him, and he is not detained in pursuance of the sentence or order of
the court, he may be detained under the authority of the Secretary of State
pending the making of the deportation order".
Parties before me were
agreed that the power of the respondent under paragraph 2(2) is impliedly
limited by reference to what have become known as the Hardial Singh principles.
This is a reference to a decision of Woolf J, as he was then, in R v Governor of Durham Prison ex-parte Hardial
Singh [1984] 1 WLR 704. 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".
[4] In this petition I would understand parties
to be at issue as to whether the respondent may have further limited her power
in terms of paragraph 2(2) by adopting a policy in respect of persons she
intends to deport. This policy is
contained in a document, "Enforcement Instructions & Guidance" at chapter 55. It was formally published as "Operational
Enforcement Manual" at chapter 38.
These are documents addressed to officials and instruct them in the
exercise of the powers delegated to them by the respondent. Munby J, sitting in the Administrative
Court, held that the respondent had so limited her powers when he determined
that compliance with the relevant requirements of the Operational Enforcement
Manual was a condition of the legality of detention in terms of
paragraph 2(2), but he was reversed on that by the Court of Appeal: SK (Zimbabwe) v Secretary of State for the Home Department
[2008] EWCA Civ 1204. I would
understand that decision to be currently under appeal to the House of
Lords.
[5] The present petition foreshadows a
number of bases upon which it may be contended that the petitioner's continued
detention is unlawful. One is by
reference to the Hardial Singh principles. Another is by reference to the requirements
of the Enforcement Instructions & Guidelines. For that argument to succeed would require
the court to hold that SK (Zimbabwe) had been wrongly decided by the Court of Appeal in England. A third line of argument is that the
respondent cannot lawfully exercise her paragraph 2 (2) power because she
cannot realistically expect to effect the removal of the petitioner from the
United Kingdom because to do so would involve an irretrievable and
disproportionate disruption of her children's family life with their
grandmother in contravention of the guarantees provided by article 8 of
the European Convention on Human Rights.
The article 8 argument is also being deployed by the petitioner in
a separate statutory appeal against the respondent's decision to deport
her. That appeal has got to the stage of
the lodging of an application for Leave to Appeal to the Court of Session. No date for a hearing by the Inner House has
yet been fixed.
Submissions of parties
[6] The petition came before me on the
motion roll on 5 February 2009 on the petitioner's application for interim liberation. The petitioner was represented by Mr Caskie. The respondent was represented by
Mr Lindsay. Mr Caskie advised me
that this was one of four cases which had been identified as raising common
issues, including the SK (Zimbabwe) point and the availability of the remedy of the compensatory
damages for wrongful detention. A
procedural hearing had been fixed in relation to all these cases for 26 February 2009 and it was envisaged that a continued first hearing would be fixed
for May or June 2009. It was thought
that no less than eight days would be required for argument of the four
cases.
[7] The argument before me was limited to
the effect of the application of the Hardial
Singh principles. Mr Caskie
invited me to consider whether that argument provided the petitioner with a prima facie case and then, if I thought
that it did, to approach the question as to whether interim liberation should
be granted on the basis of the balance of convenience.
[8] In developing his argument, Mr Caskie
drew my attention to the history of events which appeared in statement 5 of the
petition. The petitioner and her
children had resided in the United Kingdom since 18 October 2000,
albeit without having regularised their immigration status on the expiry of the
Leave to Enter which had been granted on arrival. She had been arrested on 31 May 2006 in respect of being concerned in the supply of drugs and thereafter
convicted on a plea of guilty on 18 August 2006. She
had had in her possession heroin and crack cocaine to a value of г78,500. Having completed the custodial part of her
sentence in June or July 2007, she was immediately detained by the
respondent in terms of the respondent's powers under schedule 3 of the
1971 Act. On 26 October 2006 the respondent served the petitioner with a notice indicating that
she was considering whether to deport the petitioner and on 11 April 2007 the respondent served the petitioner with a notice stating that she
had decided to deport the petitioner.
The petitioner appealed that decision.
On 29 July 2007 the petitioner's appeal was dismissed by an
Immigration Judge. The petitioner
sought an order from the Asylum and Immigration Tribunal that the decision to
dismiss her be reconsidered. That
application was refused on 15 August 2007. The petitioner renewed that application at
the Court of Session on 23 August 2007. On 23 January 2008 a judge of the Court of Session directed that the Asylum and
Immigration Tribunal should reconsider the decision that the petitioner's
appeal should be dismissed on the grounds that the Immigration Judge may have
erred in law. On 1 May 2008 the Asylum and Immigration Tribunal decided that the Immigration
Judge who had heard the petitioner's appeal and dismissed it on 29 July 2007 had indeed erred in law and adjourned the case for a
re-hearing. The re-hearing took place on
10 September 2008, but that appeal was dismissed.
The petitioner then lodged an application for Leave to Appeal against
that decision to the Inner House of the Court of Session on 17 November 2008. As previously indicated, no
date has as yet been fixed for a hearing for that appeal. In the event that the
petitioner was granted interim liberation, it might not be until
October 2010 that her appeal will be heard by the Inner House but Mr Caskie
conceded that in the event that interim liberation was refused it was likely
that an earlier hearing date would be found.
On 23 December 2008 the respondent intimated an intention to interview the petitioner
with a view to obtaining an Emergency Travel document for her removal to Jamaica
despite her Application for Leave to Appeal to the Inner House having been
lodged. The petitioner has kept in
contact with her children by telephoning them each day but it is too difficult
and expensive for them to travel to see her frequently. The petitioner has applied for bail on two
occasions from the Asylum and Immigration Tribunal. Both these applications were refused, on 14 March 2008 and 1 July 2008
respectively.
[9] Mr Caskie submitted that the
petitioner's averments constituted a strong prima
facie case. He emphasised the length
of time during which the petitioner has been detained and the likely length of
time during which she would be detained before her statutory appeal was
determined unless she was granted liberation. He did not, however, make any
criticism of the timetabling of the statutory appeal. He did not, for example, suggest that this
involved a contravention of the petitioner's article 6 rights to a hearing
within a reasonable length of time. He
accepted that when I refused to liberate the petitioner the date for the
hearing of the petitioner's appeal would be accelerated and he was scrupulous
in acknowledging the co-operation between those instructing him and those
acting for the respondent and the court in fixing and, if need be, exchanging
diets in order to give priority to cases where a party was detained. However, assuming the petitioner was
successful before the Inner House the statutory proceedings were likely to be
prolonged in that Mr Caskie anticipated that there would be a need for the
Inner House to refer the case back to the Asylum and Immigration Ttribunal
in order to make further findings of fact in relation to the circumstances of
the petitioner and her family with a view to providing a proper basis for the
article 8 argument. Mr Caskie acknowledged
that the statutory appeal raised difficult issues. Nevertheless there was no immediate prospect
of the petitioner's removal from the United Kingdom, notwithstanding her long detention. The balance of convenience favoured interim
liberation. The petitioner would be
prepared to agree to comply with conditions in the event of being liberated. Mr Caskie suggested electronic tagging
and the fixing of caution in the sum of г500.
[10] Mr Lindsay began his submissions by
emphasising two matters of fact. First,
the first order in this petition had been granted in August 2008, and,
accordingly, the petitioner had delayed for some months in bringing an
application for interim liberation.
Second, largely repeating what had been said by Mr Caskie,
Mr Lindsay emphasised that the Keeper of the Rolls would arrange the
earliest possible diet for the statutory appeal in the event of the application
for interim liberation being refused.
Mr Lindsay then turned to consider the role of the court when
reviewing a decision of the Secretary of State to continue the detention of
someone in terms of paragraph 2(2) of schedule 3 to the
1971 Act. He referred to the
decision of Lord Prosser in Sokha v
Secretary of State for the Home Department 1992 SLT 1049 and
Lord Penrose in Singh v Secretary of
State for the Home Department 1993 SLT 950 as
indicating the position taken by the Scottish courts prior to the enactment of
the Human Rights Act 1998.
Mr Lindsay did not, however, argue that this was the position that
should be adopted now. Rather, he
commended what appeared in paragraphs 60 to 62 of the judgement of Toulson LJ
in R (on the
application of A) v Secretary of State for the Home Department [2007] EWCA Civ 804,
where, as here, the question was whether a party's Convention rights had been
infringed. The matter was for the court,
making its own assessment, rather than the administrative decision maker: Belfast City Council v Miss Behavin' Ltd [2007] 1 WLR 1420, Baroness Hale at 1430 H.
In Mr Lindsay's submission nothing should turn on the fact that
this application was made on the motion roll or that it was described as an
application for interim liberation. What
was involved here was a Human Rights adjudication. The court had the material before it to make
that adjudication and should proceed to do so.
It was unnecessary to approach the matter on the basis of whether a prima facie case had been demonstrated
and, if so, by identifying where the balance of convenience lay. However, whereas the issue was whether or not
the continued detention was lawful, Mr Lindsay associated himself with
what Mr Caskie had said about imposing conditions on liberation, if the
court determined that liberation ad interim
was appropriate. Mr Lindsay
accepted that the legality of the continued detention of the petitioner fell to
be determined by reference to the Hardial
Singh principles. For examples of
how these principles had been applied, Mr Lindsay referred me to R (on the application of Qaderi v Secretary of State for the Home Department) [2008] EWHC 1033, R (on the application of Ashori) v Secretary of State for the Home Department [2008] EWHC 1460, and R (on the application of Mustafa Jamshidi) v Secretary of State for the Home Department [2008] EWHC 1990. Here, Mr Lindsay submitted, continued
detention was reasonable. The petitioner
had a bad immigration record. She had
made no attempt to comply with the conditions upon which she had been allowed
to enter the United
Kingdom. She had been convicted of a serious drugs
offence. She had the option of returning
to Jamaica. This was to be contrasted
with a situation where a detainee was to be removed to a state where
circumstances were chaotic. He gave the
example of Zimbabwe. The court should refuse the application for interim liberation but
if it were minded to grant the application, Mr Lindsay requested the
opportunity to make further submissions on the conditions under which
liberation would be permitted. Finally,
Mr Lindsay explained that a reference he had made to the petitioner being
involved in the "drugs scene" at the detention centre, was based only on
suspicion and the suspected involvement was restricted to the petitioner
holding drugs for another person.
[11] In a brief second speech, Mr Caskie
emphasised that the purpose of this hearing was to determine not whether the
initial detention of the petitioner had been unreasonable but whether it was
now unreasonable. In his submission the
reasonable time for detention had long expired.
The petitioner should be granted interim liberation.
Discussion and decision
[12] Notwithstanding what might be taken from
the opinions in Sokha v Secretary of State for the Home Department
and Singh v Secretary of State for the Home Department and, what
Mr Lindsay informed me, was the practice of the Outer House when
reviewing the detention of persons in terms of paragraph 2 (2)?
powers at a time when applications for interim liberation of such persons came
more commonly before the court, it is conceded on behalf of the respondent
that, subsequent to the enactment of Human Rights Act 1998, the court
should exercise a primary jurisdiction, that is, it should come to and apply
its own view as to the legality of the detention on an application of the Hardial Singh principles. The court should not, as may formerly have
been the case, restrict itself to considering whether the decision to continue
detention was one falling within a proper exercise of the respondent's
discretion. As invited to, that is approach
which I adopt.
[13] Mr Caskie proposed that the
appropriate way for me to proceed was by first by considering whether the
petitioner's averments disclosed a prima
facie case and then, if they did, determining whether or not to grant
interim liberation by reference to the balance of convenience. I decline to follow this proposal. The rationale of an interim application is
that the circumstances are such that there is an urgent need for a remedy at a
time when the right upon which the remedy depends cannot finally be
determined. In such a case the court may
be prepared to come to a provisional view on the question of right and, if that
is favourable to the party seeking the remedy, grant it on an interim
basis. The familiar technique is to
consider whether there is a prima facie
case and, if so, to proceed to consider how an award of the remedy on an
interim basis would impact on the affected parties, with a view to determining
where the balance of convenience lies.
However, taking a provisional view is only necessary where it is not
possible or not practicable to take a final view. This is not such a case. I heard what I took be be a full argument by
both parties on the only point which is relied on: that the petitioner's continued detention was
not lawful when tested by reference to the Hardial
Singh principles. The facts were
uncontroversial. Neither party suggested
that my understanding would be materially supplemented by the leading of
evidence. I was therefore in as good a
position as I was ever likely to be to determine the question. I was persuaded by parties that, in the event
that I considered the detention unlawful, there may be practicalpracticable
advantages in describing the remedy granted as interim liberation as opposed to
liberation simpliciter, irrespective
of the apparent logic of the position.
Conditions might be attached to a grant of interim liberation. The interim character would make clear that
the court's order was without prejudice to any further lawful detention that
the respondent might authorise, in the event of refusal of the petitioner's
statutory appeal, for example. While I
see the force of these considerations and while I appreciate that any order for
liberation that I might grant will inevitably have an interim quality about it,
I consider it appropriate now to approach the question of the legality of the
petitioner's detention in exactly the same way as I would approach the question
on a final basis.
[14] Turning then to consider the petitioner's
detention in the light of the history set out in the averments in the petition
and the Hardial Singh principles, I
have not been persuaded that the respondent's decision to continue the
detention of the petitioner is unlawful.
[15] The respondent's power under paragraph 2
(2) is limited. It is purely ancillary
to the powers ? to decide to deport and to remove from
the United Kingdom persons who do not have the right to remain there. I am, however, satisfied in this case that
the respondent intends to deport the petitioner. It was not suggested otherwise. I did not understand it to be suggested that
the respondent had not acted with reasonable diligence and expedition. It was not said that the respondent will not
be able eventually to effect deportation, merely that, in a difficult case, she
may not be able to, given the
article 8 rights of the petitioner's children. It was said that the period of detention has
nevertheless become unreasonably long, and, that the petitioner should therefore
be liberated, albeit that no criticism was made of the conduct of the legal
proceedings which have led to the length of the period. The petitioner has now been detained for some
twenty months. I regard that as a
substantial deprivation of liberty, albeit that in other cases longer periods
have been found to be justifiable: eg R (on the application of Mustafa Jamshidi) v Secretary of State for the Home Department
supra. Moreover, as again was emphasised, the
petitioner's detention has no immediate end in view. As to that I would respectfully associate
myself with what was said by Lord Penrose in Singh v Secretary of State
for the Home Department supra at 954
as to the deep seated abhorrence of indefinite detention of the individual in
Scots law. That said, the
petitioner's continuing detention is a matter of her choice. She has declined voluntary repatriation to Jamaica. I agree with what was said by Toulson LJ in R (on the application of A) v Secretary of
State for the Home Department supra
at paragraph 54:
"The refusal of voluntary repatriation is important not only as
evidence of a 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 the product of his own
making"
There are also the
facts that the petitioner here has made no attempt to comply with immigration
controls. She has been convicted of being
concerned in the supply of a substantial quantity of Class A drugs. In all the circumstances I cannot conclude
that her continuing detention is unlawful, and, accordingly, I shall refuse the
application for interim liberation.