Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 61
P929/10	OPINION OF LORD DOHERTY in the Petition of RASUL NABI, also known as RASUL NABI RASUL, Petitioner; for Judicial Review of Decisions of the Secretary of State for the Home Department to detain and to continue to detain the Petitioner. ­­­­­­­­­­­­­­­­­________________

Petitioner: Caskie; Drummond Miller LLP.

Respondent: McIlvride; Office of the Solicitor to the Advocate General.

5 April 2012

Introduction

[1] The Petitioner is an Iraqi citizen. He entered the United Kingdom illegally on 7 January 2003 and claimed asylum. At that time he completed a Screening Form and a Bio-Data Information Form, and on 22 January 2003 his solicitors forwarded a witness statement from him. His asylum application was refused on 31 October 2003. He lodged an appeal against that decision on 24 October 2003. His appeal was dismissed on 11 February 2004. Permission to appeal to the Immigration Tribunal was refused on 30 June 2004. His appeal rights became exhausted on 16 July 2004. He was listed as an absconder on 2 September 2005. On 11 January 2007 he submitted representations applying for leave to remain in the United Kingdom in terms of Articles 2 and 3 of ECHR. On 22 June 2007 he submitted an application for indefinite leave to remain in the United Kingdom, claiming to have been granted exceptional leave to remain. He had at no time been granted exceptional leave to remain. On 26 November 2008 he was convicted of using a false instrument, failing to notify a change of circumstances, two charges of obtaining property by deception, and making a false representation. He was sentenced to a total of 15 months imprisonment. He was served with a Notice of Liability for Automatic Deportation on 5 March 2009. Subsequently it was decided that the Petitioner was not subject to automatic deportation (because none of the individual sentences for a single offence exceeded 12 months imprisonment) but that deportation would be conducive to the public interest. On 2 July 2009 he completed a Bio-Data Information Form in relation to his proposed deportation. He was detained under immigration powers from 11 July 2009. He was served with a decision to make a deportation order on 14 August 2009. The application made on 11 January 2007 was refused on 10 September 2009, as was his application for indefinite leave to remain. His appeal against the deportation order was dismissed on 18 November 2009. He exhausted his appeal rights (for the second time) on 26 November 2009. A deportation order was served on him on 15 January 2010. By representations dated 8 March 2010 he applied to have the deportation order revoked. On 11 June 2010 the Respondent refused to revoke the order. An application for bail on 13 July 2010 was refused.

[2] Between October 2009 and October 2010 the United Kingdom Government enforced the return of over 170 Iraqi nationals who had no legal basis to remain in the United Kingdom. About 50 of the 170 had indicated that they originated from the Kurdish Region of northern Iraq. That number included Iraqi nationals who originated from Kirkuk and Mosul. Those who were returned to Iraq were checked for eligibility to return and were cleared in advance with the Iraqi authorities.

[3] On 21 September 2010 the Upper Tribunal (Immigration and Asylum Chamber) had promulgated a country guidance determination on the application of Article 15(c) of Council Directive 2004/83/EC ("the Qualification Directive") to conditions in Iraq: HM & Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC). The appellants in that case had had their legal representation withdrawn at a very late stage, but the tribunal had nonetheless taken the decision to proceed with the hearing and to promulgate a country guidance determination.

[4] Rule 39 of the Rules of Court of the European Court of Human Rights ("ECtHR") provides:

"The Chamber or, where appropriate, its President, may, at the request of a party or any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interest of the parties or of the proper conduct of the proceedings before it."

The Petitioner was not party to proceedings before the ECtHR (and accordingly there were no Rule 39 interim measures in respect of any such proceedings). However, on 22 October 2010 the ECtHR gave notice to the United Kingdom Government and governments of other countries that, because of an increasing number of Rule 39 requests by applicants seeking to prevent their return to Baghdad and the reported recent deterioration in the security situation there, it considered it appropriate to apply Rule 39 in respect of any Iraqi challenging his return to Baghdad. It requested responses from affected governments by 29 October 2010. Timeous responses were submitted by the United Kingdom Government and governments of other affected countries, as a result of which the ECtHR was satisfied (during November 2010) that it would not be appropriate to grant Rule 39 interim relief on a blanket basis to all such applicants.

[5] The Petitioner could not be removed without first obtaining an Emergency Travel Document ("ETD") from the Iraqi authorities. In a pre-clearance exercise in June 2010 the Petitioner was not cleared by the Iraqi authorities. Those authorities were not satisfied that he was an Iraqi national or that his origins were as he claimed. On 30 June 2010 a documentation panel considered the Petitioner's case and it was decided that an assertive interview should take place with the Petitioner to obtain more specific information as to his origins. On 24 September 2010 the Petitioner was requested to submit any documentary evidence of his identity, or other official documentation from Iraq, but he claimed to have none. The assertive interview of the Petitioner took place on 25 October 2010. On 22 December 2010 the forms which the Petitioner had completed on 7 January 2003 and the statement forwarded on 22 January 2003 were brought to the attention of the officials dealing with the Petitioner's detention and deportation: prior to then they had been unaware of their existence. On 23 December 2010 an application for bail was refused. At the beginning of February 2011 the Petitioner was asked to write a short note in Arabic/Kurdish-Sorani stating his name, nationality and address, and declaring that he did not possess any documents but was now willing to return to Iraq. The information was to be submitted to Iraqi officials in order to obtain clearance for the Petitioner. By 3 February 2011 the Petitioner's representative had communicated the Petitioner's willingness to comply with this request. It was intended that the Petitioner be included in the pre-clearance exercise due to take place later that month, but it was thought unlikely that he would be accepted for it without the note which had been requested from him.

[6] The pre-clearance exercise was postponed on about 22 February 2011 due to the volatile political situation in Iraq. Despite repeated requests the Petitioner did not provide the note he had agreed to provide. The next pre-clearance exercise took place in June 2011. The Petitioner was interviewed by Iraqi officials on 10 June 2011. On 15 June 2011 they approved the issuing of an ETD for the Petitioner.

[7] During the period up to 10 June 2011 the Respondent's officials were endeavouring to assist the Iraqi authorities to confirm the Petitioner's identity and origins.

[8] Following the obtaining of the necessary ETD the Respondent arranged for the Petitioner to be returned to Iraq by charter flight on 21 June 2011. On that date the Petitioner and forty eight other applicants applied to the High Court in London for an interim injunction staying their removal to Iraq until 28 days after judgement was handed down by the Court of Appeal in HM (Iraq) and RM (Iraq) v Secretary of State for the Home Department (Case No. C5/2010/2842; on appeal [2011] EWCA Civ 1536) or until further order of the court. (The hearing in HM (Iraq) and RM (Iraq) v Secretary of State for the Home Department took place on 30 November 2011 and judgment was handed down on 13 December 2011. The Court of Appeal allowed the appeal and quashed the tribunal's determination. It held that the tribunal's exercise of the discretion to proceed was flawed by a failure to consider alternative ways of securing proper argument).

[9] The Petitioner's detention was the subject of Monthly Progress Reports and Detention Reviews between July 2010 and 4 August 2011. At each Review the legality of the Petitioner's continued detention was considered by the Respondent. On each occasion the Respondent concluded that the Petitioner's continued detention was justified.

[10] An application for bail made to an Immigration Judge was granted on 24 August 2011, with a requirement that the Petitioner reside at the address in the instance. At the time of bail being granted the Petitioner had been detained for two years and six weeks.

[11] In this Petition for Judicial Review the Petitioner seeks:

"(i) declarator that the decision of the Secretary of State to detain the Petitioner from 30th June 2010 until 24th August 2011was unreasonable et separatim irrational et separatim in breach of the United Kingdom's ECHR obligations and section 6 of the Human Rights Act 1998;

(ii) payment of the sum of £84,000 (EIGHTY FOUR THOUSAND POUNDS) in respect of his unlawful detention and in just satisfaction;

(iii) the expenses of the Petition;

(iv) such other orders as may seem to the court to be just and reasonable in all the circumstances of the case."

[12] The matter came before me for a First Hearing. Argument was restricted to the question whether declarator should be granted.

Contentions for the Petitioner

[13] Mr Caskie submitted that the detention of the Petitioner for the whole period between 30 June 2010 and 24 August 2010 was unlawful. Alternatively he maintained that by 11 January 2011 the Petitioner had been detained for 18 months and that his continued detention beyond that time was unlawful. His fall back position was that detention of the Petitioner after 21 June 2011 was unlawful.

[14] The statutory power to detain pending deportation is contained in Schedule 3 to the Immigration Act 1971 (as amended). Paragraph 2 provides:

".....

(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.

(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)...."

[15] The exercise of the power to detain by the Secretary of State is subject to the well established principles identified by Woolf J in R v Governor of Durham Prison, Ex parte Hardial Singh [1984] 1 WLR 704 at 706:

"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 in one case pending the making of a deportation order and, in the other case, 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 on 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."

[16] The Hardial Singh principles were approved by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 and were subsequently distilled by Dyson LJ in R (I) v Secretary of State for the Home Department [2003] INLR 196, para 46 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."

(See also R (Lumba)) v Secretary of State for the Home Department [2011] 2 WLR 671 per Lord Dyson SCJ at paragraph 22, and R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299 per Lord Brown of Eaton-under-Heywood SCJ at paragraph 93).

[17] Mr Caskie maintained that in the present case the Petitioner's continued detention throughout the whole period between 30 June 2010 and 24 August 2011 had been in breach of the Hardial Singh principles. He accepted that throughout that period the Secretary of State was entitled to conclude that, if at liberty, there was a significant risk that the Petitioner would abscond; and that there would be a significant risk of him reoffending. The Secretary of State had to weigh those risks against the difficulties (which Mr Caskie described as being "not insuperable") she was experiencing in effecting removals to Iraq. It ought to have become clear to her early on that the prospects of achieving removal to Iraq of the Petitioner within a reasonable time were poor (cf. Louled Massoud v Malta, Application no. 24340/08, 27 July 2010). This was because of the security situation in Iraq (which had led to a halt to returns for a period), and because of the attitude of the Iraqi authorities to the Petitioner and other Iraqi Kurds. It was submitted that there had been failures on the part of the Respondent to progress the proposed deportation efficiently and expeditiously. Some of the material which had been provided to the Respondent by the Petitioner in the course of his asylum claim had not been brought to the attention of the officials dealing with the Petitioner's detention and deportation. Had it been it could have been passed on to the Iraqi authorities. In addition, perusal of the Monthly Progress Reports and the Detention Reviews demonstrated occasions when there had been lack of expedition on the Respondent's part, e.g. it had taken more than three months for the assertive interview to be carried out, and at least one of the reviews did not appear to have been "signed off" by an official of an appropriate rank. In those circumstances, particularly having regard to the lengthy period of time that the Petitioner had already been detained by 30 June 2010, the continued detention of the petitioner had been unreasonable, and unlawful (cf. R (Sino) v Secretary of State for the Home Department [2011] EWHC 2249 (Admin)).

[18] Mr Caskie advanced the same arguments in relation to the Petitioner's continued detention beyond 11 January 2011. By that time the Petitioner had been detained for 18 months. Such continued detention was unlawful not only because Hardial Singh principles were breached, but also because it was deprivation of liberty in contravention of Article 5(1)(f) of ECHR. He contended, under reference, inter alia, to Directive 2008/115/EC of the European Parliament and the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals ("the Return Directive"), that there was an 18 month "bright line" beyond which detention would result in breaches of (Dyson LJ's) second Hardial Singh proposition and of Article 5(1)(f) of ECHR. He acknowledged that the Directive was not binding on the United Kingdom. He submitted that he was not seeking to have the Directive applied by the back door. He suggested that it would be something the ECtHR would have regard to when determining whether detention breached Article 5(1)(f). He sought to adopt, but did not take me to or develop, the submissions which had been made in paragraphs [13] to [21] of Mbulawa, Petitioner [2011] CSIH 53. The court in Mbulawa had reserved its position on this point (paragraph [31]). He acknowledged that there was Outer House authority against him: these arguments had not found favour in B.N. Petitioner, [2012] CSOH 16 (paragraphs [16]-[17]) or in S v Secretary of State for the Home Department 2011 SLT 297 (paragraphs [39]-[41]), or before the Lord Ordinary in Mbulawa (2011 SLT 218, sub nom. M v Secretary of State for the Home Department, paragraphs [53]-[68]).

[19] Finally, he argued that once the injunction had been obtained on 21 June 2011 it ought to have been apparent to the Secretary of State that there was an additional barrier to removal. Had she carried out a proper balancing exercise then she should have concluded that removal could not take place within a reasonable time.

Contentions for the Respondent

[20] Mr McIlvride submitted that the continued detention of the Petitioner had been in accordance with the Hardial Singh principles and had been lawful. There had been a significant risk of the Petitioner absconding, and a significant risk of him re-offending. At all material times there had been the prospect of achieving his removal within a reasonable time. The ECtHR's indication that Rule 39 interim measures would be applied to all Iraqis challenging return to Baghdad had been maintained for only a very short time. The Petitioner had not co-operated in doing all he could to satisfy the Iraqi authorities of his identity and to secure an ETD. He had provided more details as to his background when making his asylum claim in 2003 than he had to officials dealing with his detention and deportation in 2009. While it was unfortunate that the earlier information was not identified until December 2010, this would not have mattered if the Petitioner had provided proper and specific particulars of his background in 2009. He had thwarted his removal on 21 June 2011 by the obtaining of the injunction. At each stage continued detention had been justifiable having regard to all the relevant factors (cf. AAS v Secretary of State for the Home Department 2011 S.C. 383; KM v Secretary of State for the Home Department [2010] CSOH 8). Louled Massoud v Malta and R (Sino) v Secretary of State for the Home Department were clearly distinguishable on their facts. In each of those cases the authority ought to have realised sooner that the barriers to removal were unlikely to be overcome.

[21] Mr McIlvride maintained that there was no 18 month bright line. Detention for more than 18 months could, and in very many cases did, satisfy the Hardial Singh principles. Detention for more than 18 months did not give rise to a breach of Article 5(1)(f). The relevant provisions of the Return Directive had not been adopted by the UK, and did not bind the Respondent. Nothing in the Strasbourg jurisprudence or in Mbulawa supported the Petitioner's argument. In Mbulawa the Petitioner had been detained for about 32 months. Had there been an 18 month bright line it would have been unnecessary for the court to even consider whether continued detention of the Petitioner for any further period would breach the Hardial Singh principles.

Discussion

Role of the court

[22] Parties were agreed that the proper role of the court was not simply to review the Secretary of State's decisions to continue to detain the Petitioner on grounds of irrationality or traditional Wednesbury grounds. Rather, the court had to decide for itself whether the Petitioner's detention was justified and lawful. This approach is consistent with the approach of the Court of Appeal in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804, and with TP v The Advocate General for Scotland [2009] CSOH 121, KM v Secretary of State for the Home Department, and S v Secretary of State for Scotland 2011 SLT 297. I was not directed to any authority to the contrary. I proceed on the basis that the court's role is indeed as agreed by the parties.

Did continued detention breach the Hardial Singh principles?

[23] It was common ground that the exercise of the Respondent's discretion to detain was subject to the Hardial Singh principles, and to the distillation of those principles set out in Dyson LJ's four propositions. That is plainly correct (see e.g. R (Lumba)) v Secretary of State for the Home Department per Lord Dyson SCJ at paragraph 22, and R (Kambadzi) v Secretary of State for the Home Department per Lord Brown of Eaton-under-Heywood SCJ at paragraph 93).

[24] It was also uncontentious that the first of Dyson LJ's propositions was satisfied. Throughout the period of the Petitioner's detention the Respondent intended to deport him and he was detained for that purpose.

[25] In my opinion the second, third and fourth propositions were also satisfied.

[26] There was throughout the period of detention that is challenged a realistic prospect of removal. At no point during the period of detention which is challenged could it be said that there was no realistic prospect of the Petitioner being removed to Iraq within a reasonable period. I agree with Mr McIlvride that the circumstances Louled Massoud v Malta and R (Sino) v Secretary of State for the Home Department were very different.

[27] There were, of course, some difficulties. The Rule 39 indication given by the ECtHR was in place for a few weeks in late October and part of November 2010. Mr Caskie did not place any great stress on this. In my view he was right not to do so. The Rule 39 indication was not a legal impediment to removal (R (AR) v Secretary of State for the Home Department [2011] EWCA Civ 857 at paragraphs 22-23). In any event it was extant for a very short period. At times deteriorations in the security situation in Baghdad caused the return process to be held up. The Iraqi authorities still required to be satisfied as to the Petitioner's identity and nationality, but that task appeared to be surmountable. All difficulties had in fact been resolved by mid-June 2011. In my opinion at no stage prior to then ought it to have become apparent to the Respondent that deportation could not be effected within a reasonable period.

[28] From 21 June 2011 to 24 August 2011 the only impediment to removal was the injunction which the Petitioner and other detainees had sought. It was anticipated that that impediment could be removed in early course once HM (Iraq) and RM (Iraq) v Secretary of State for the Home Department was considered by the Court of Appeal.

[29] On the basis of the material placed before me I am satisfied that the Respondent acted with reasonable diligence and expedition to effect removal of the Petitioner. The omission to bring the material in the asylum file to the attention of the officials dealing with the detention and deportation was an administrative error which would have been of no moment had the Petitioner provided clear and specific information in the Bio-Data Information Form he completed on 2 July 2009. In fact, the information which the Petitioner provided in that form was vague and unhelpful in several respects. It did not facilitate the obtaining of clearance from the Iraqi authorities. The only address given was "Demacar, Mosal". In response to a request for his mother's name he declared "Zyanb Abdullah". The form also requested his mother's maiden name but he left that blank. Next to the request for her date of birth he wrote "45-50". He stated his father's name was "Nabi Rasul", and in response to the request for his father's date of birth he entered ""45-50". He declared having a sister "Shukra Nabi" born in 1981 and a brother "Mohammed Nabi" born in 1988. Against the request for last employer in country of origin he stated "None". He declared that he had attended "Demacar P. School" from 1991 to 1996. The name of the Principal of the school was left blank. No name or address was provided for the family doctor. "Demacar Mosque" was declared to be his place of worship, "Mosal Police Station" was provided as the name and address of the local police station, and "Mosal General Hospital" as the name and address of the local hospital. In January 2003 the information which the Petitioner provided had been more specific and different in several respects. He had provided a fuller address, "Daymagar Village, Magmore, Mosel" and "Demakar Village, Makhmur city, in Mosel province". He had given his mother's maiden name, "Shika", and her date of birth as 1948. He gave his father's name as "Nabi Rasul Hassan" and his date of birth as 1945. He had named all four of his brothers and sisters (Bishtiwan, Mohamed, Shokri and Habib) and provided their years of birth (1980, 1988, 1975 and 1978 respectively). He had stated that he had worked as a shepherd for 4-5 years and that he owned about 150 sheep; that his national identity card had been left at home in Iraq; and that "Daymagar Police Station" was the local police station. I consider that the 2003 material demonstrates that the Petitioner could have provided fuller and more accurate information in 2009 had he wished to. I think it may reasonably be inferred that at the time of completion of the Bio-Data Information Form in 2009 he was no longer inclined to co-operate with officials. In 2003 he had been providing information to support his asylum claim. In 2009 the context was very different. The information was being sought by officials who were seeking to effect his deportation, which he was resisting. The failure of the Petitioner to provide the note first requested in February 2011 is a further example of his reluctance to co-operate with his removal, as is the seeking and obtaining of the interim injunction in June 2011.

[30] I do not overlook the fact that in relation to some matters (such as the interval of more than three months between the need for an assertive interview being identified and the interview taking place) it is possible that greater expedition on the part of the Respondent might have been achieved. On those occasions where there was delay it appeared to me to be untypical, and to be indicative not of unlawfulness but of best practice not having been attained (cf. R (Krasniqi v Secretary of State for the Home Department [2011] EWCA Civ 1549 per Carnwath L.J. at paragraph 12; R (Saleh) v Secretary of State for the Home Department [[2012] EWHC 329 (Admin) per Dobbs J at paragraph 15). The clear picture obtained from an examination of all the documentation is that the Respondent made best endeavours to progress the removal, and that she acted with reasonable expedition.

[31] While it is possible to advance isolated criticisms of the terms of some Progress Reports and Detention Reviews (and in at least one instance, that the review was not signed off by an official of the appropriate grade), none of the criticisms appear to me to be substantial. It seems to me that the Respondent, through her officials, carried out careful, fact-sensitive and regular reviews of the appropriateness of continued detention, and had regard to all relevant considerations when doing so. There were material risks of the Petitioner absconding and re-offending. These required to be taken into account when considering whether detention continued to be justified. Having regard to those risks, and to the whole circumstances, I consider that at no stage between 21 June 2011 and 24 August 2011 was the point reached where the Petitioner was detained for more than a reasonable period. Nor, as I have already indicated, was a stage reached where it ought to have been apparent to the Respondent that return could not be effected within a reasonable time.

[32] I conclude that the continued detention of the Petitioner was justified under the Hardial Singh principles.

Is there an 18 month bright line?

[33] I am unpersuaded by Mr Caskie's submission that there is an 18 month bright line. I am in substantial agreement with Mr McIlvride's submissions on this the point, and with the views expressed by Lord Brailsford in B.N. Petitioner, [2012] CSOH 16 at paragraphs [16]-[17], by Lord Menzies in S v Secretary of State for the Home Department 2011 SLT 297 at paragraphs [39]-[41], and by Lord Bannatyne in Mbulawa (2011 SLT 218, sub nom. M v Secretary of State for the Home Department) at paragraphs [53]-[68]: cf. R (WL (Congo) v Secretary of State for the Home Department [2010] 1 WLR 2168 at paragraph 107. In my opinion no support for Mr Caskie's submission may be derived from the Opinion of the First Division in Mbulawa.

Breach of Art 5(1)(f)?

[34] Standing my conclusions that the Hardial Singh principles have been complied with, and that there is no 18 month bright line, there is no basis for finding that continued detention was in breach of Art 5(1)(f). Mr Caskie did not suggest that there would be on that scenario. That was unsurprising (see e.g. R (I) v Secretary of State for the Home Department, per Simon Brown LJ at paragraph 8; R (Kambadzi) v Secretary of State for the Home Department, per Lord Hope of Craighead DPSC at paragraphs 58-59 and Lord Brown of Eaton-under-Heywood JSC at paragraph 94).

Decision

[35] The Respondent's continued detention of the Petitioner during the period complained of was lawful. I shall repel the Petitioner's pleas-in-law, sustain the Respondent's second plea-in-law, and refuse the Petition. I shall reserve all questions of expenses.