Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 1

 P550/15

OPINION OF LORD BANNATYNE

In the petition of

D A YEBOAH

for Judicial Review of decisions of the Secretary of State for the Home Department dated 3 August 2007, 16 August 2010, 15 June 2011, 1 May 2013 and 18 February 2015.

Petitioner;

Petitioner:  Party

Respondent:  Maciver;  Office of the Advocate General

Respondent;

8 January 2016

Introduction
[1]        In this Judicial Review the petitioner sought to reduce five decisions of the Secretary of State for the Home Department (“the respondent”) dated 3 August 2007, 16 August 2010, 15 June 2011, 1 May 2013 and 18 February 2015.

Background
[2]        The petitioner was granted an Immigration Employment Document on 26 January 2005 and as a result thereof the respondent granted him leave to remain in the UK on 11 February 2005.  He was granted a further Immigration Employment Document on 11 April 2006 and as a consequence of which the respondent extended his leave to remain in the UK on 31 August 2006 until 31 August 2010.

[3]        A notice of premature end of the petitioner’s employment was received by the respondent advising that the petitioner’s employment had been terminated as at 19 February 2007.

[4]        As a result of the foregoing notice the respondent in a decision dated 03 August 2007 restricted the duration of the petitioner’s leave to remain in the United Kingdom as a work permit holder so that it expired on 31 August 2007 (“the initial decision”).  Since 31 August 2007 the petitioner has at no stage held leave to remain as a work permit holder.

[5]        Thereafter in decisions dated:  16 August 2010 the respondent refused the petitioner’s application for leave to remain; 15 June 2011 the respondent refused the petitioner’s application for discretionary leave to remain;  1 May 2013 the respondent refused a further application for leave to remain and by letter dated 18 February 2015 the respondent replied to the petitioner’s pre-action protocol letter.

[6]        A first order in the present judicial review proceedings was granted on 2 June 2015.

The issues
[7]        This matter came before me as a first hearing.  At the outset it was agreed that argument should be confined to consideration of the respondent’s two preliminary pleas which were in the following terms:

“1.       The petitioner’s averments being irrelevant et separatim lacking in specification the petition should be dismissed.

2.         The petitioner having delayed unduly in seeking judicial review, for reasons   of mora, taciturnity and acquiescence the petition should be refused”.

The respondent’s submissions
Mora, taciturnity and acquiescence.

[8]        Counsel’s position was that on a proper reading of the petition the only decision of the respondent’s which was challenged was the initial decision. 

[9]        He directed my attention to paragraph 4 of the petition which set out in brief the petitioner’s challenges to the decisions of the respondent.  This section of the petition was in the following terms:

“a.       The SSHD discretion to curtail the Petitioners leave to remain was wrongly exercised and procedurally unfair.

b.         The SSHD initial decision which was not in accordance with the law and also in breach of the Petitioners article 6 of the ECHR affected her subsequent decision which made them also unlawful.

c.         The SSHD did not addressed the question whether the removal of the Petitioner would be in breach of his Article 6 right to be heard during their civil proceedings which renders her decision not in accordance with the law.

d.         In any event, if the curtailment decision was effective which is doubtful, the SSHD is estopped from removing the Petitioners now, due to the advice the SSHD gave to them when their work permit were curtailed and the detriment suffered as a result of relying on that advice, in addition to lapse of time with no effort demonstrated to seek their removal from the UK (See production 6/31P.doc (5).”

[10]      He submitted that paragraph (a) challenged the initial decision in that it refers specifically to the issue of curtailment.  Paragraph (b) also referred to the initial decision not being in accordance with the law.  Paragraph (c) contained a reference to article 6 and this once again was a challenge to the initial decision which was said to have been made without the petitioner having been heard in relation to it.  Paragraph (d) again referred to the issue of curtailment and thus to the initial decision. 

[11]      Counsel went on to contend that at no other point in the lengthy averments in the petition did the petitioner set out any basis for the reduction of the later decisions other than by reference back to the challenges to the initial decision. 

[12]      It was against that understanding of what was properly under challenge in terms of the petition that counsel advanced his argument in terms of this plea.

[13]      Counsel began his submissions by referring me to CM v The State Hospital Board for Scotland [2015] SC 112 at paragraph 57 which contained a summary of the requirements for the making out of a plea of mora, taciturnity and acquiescence.  Paragraph 57 said this:

“[57]    In Portobello Park Action Group Association v City of Edinburgh Council an Extra Division reviewed the principles that applied to a plea of mora in the context of judicial review where there is not, as yet, a formal time limit for the presentation of a petition (see generally Report of the Scottish Civil Courts Review (‘the Gill review’), Ch 12, paras 25 et seq; Courts Reform (Scotland) Bill 2014 (SP Bill 46), sec 85, inserting sec 27A, ‘Time Limits’, into the Court of Session Act 1988 (cap 36)).  The Division, in essence, followed the First Division in Somerville v Scottish Ministers to the effect that all three elements required to be established before the plea could be sustained.  Whether there has been a delay, in the sense of a lapse of time beyond what is reasonable, depends upon the particular facts and circumstances.  Taciturnity involves a failure to assert a claim, when a reasonable person would do so. Acquiescence is an assent to a state of affairs inferred in an objective manner from inaction and silence.”

[14]      With respect to mora, counsel submitted that the initial decision was about seven years and nine months prior to the date of the raising of the present judicial review proceedings.  The challenge to this decision raised no complex issues and all of the information necessary for the petitioner to challenge the initial decision was available to him within a short time of the initial decision being made.  The delay of seven years and nine months was well beyond what was a reasonable time within which to challenge the initial decision.

[15]      With respect to the issue of taciturnity there had been silence on the part of the petitioner, so far as challenging the initial decision, from the date of the initial decision until the raising of the present proceedings.  There had been no challenge to the initial decision until the raising of the present judicial review proceedings.

[16]      Counsel accepted this:  as the various other decisions which were referred to in the petition made clear the petitioner had taken various steps since the initial decision to regularise his position in the UK.  However, the various attempts seeking leave to remain were all founded upon article 8 and related issues and did not seek to challenge the initial decision.

[17]      Beyond the above, counsel also accepted that the petitioner had taken a number of legal steps in relation to his employment position following the termination of his employment, which founded the initial decision.  However, once more he argued that these were matters which were entirely separate from challenging the initial decision and in any event within a few months of the initial decision the petitioner had dropped the proceedings in which he had sought, before the employment tribunal, to challenge the termination of his employment.

[18]      Counsel overall accepted that the petitioner, following the initial decision, was doing the above things, however, that was of no relevance because what he was not doing was challenging the initial decision.  He submitted that in the whole circumstance the reasonable person would not have been silent in relation to the initial decision for a period of almost seven years and nine months.

[19]      He concluded by contending that the unreasonable delay in raising the present judicial review proceedings when combined with the silence in the period following the initial decision, until the raising of the judicial review proceedings formed a basis from which it could reasonably be inferred that there had been acquiescence regarding the initial decision. 

[20]      With respect to the various other points which the petitioner put forward in response to the mora argument counsel responded as follows:  he accepted that the respondent had taken no action to remove the petitioner from the UK since the initial decision although at all stages she could have issued removal directions, however, his position was that this was of no relevance as in terms of the mora plea it was not necessary to establish reliance or prejudice; he submitted that there was no error in the initial decision letter which could have misled the petitioner into thinking he had leave to remain in the UK beyond 31 August 2007. [21]        Separately, as I understood it, counsel argued, that if the petition did challenge the decisions of 16 August 2010, 15 June 2011 and 1 May 2013, the petitioner was barred from challenging them by operation of mora, taciturnity and acquiescence given they were respectively five, four and two years old when the present review proceedings were raised and there had in each case been silence and inaction on the part of the petitioner since the particular decision was made.  With respect to the reply to the pre action protocol letter he argued this was properly understood not a decision.

Reply by the petitioner
[22]      The petitioner’s position in reply, as I understood it, in summary was this: 

• He stressed that all three elements of mora, taciturnity and acquiescence had to be present for the plea to be upheld.
• He denied delay and silence on his part and relied on what was described as the use of alternative means to regularise his immigration status.I understood by this he was referring to the various applications for leave to remain which were made following the initial decision.
• He also relied on the other steps taken relative to his employment position as set out in the petition as showing that there had not been silence and inaction on his part following the initial decision.
• He relied on a contention that he was only able to utilise judicial review procedure as a last resort and his understanding of this was to this effect: it was only after he had made the various applications for leave to remain that he was able then to proceed to judicial review.Prior to making all these applications his position was that he would have been met in any judicial review proceedings raised by him with a plea of prematurity by the respondent.
• He relied on the lack of any prejudice to the respondent arising from the delay.In support of this part of his submissions he drew my attention to Anderson, Petitioner [2013] CSOH 52 at paragraph 16 where the Lord Ordinary observed with respect to a plea of mora:

“The fullest discussion of the application of the plea to judicial review and rights in public law is found in the opinion of Lord Nimmo Smith in Singh v Home Secretary, 2000 SLT 533, at 537, cited in Somerville, supra, at paragraph [92].  In that discussion, it is accepted that in some cases the passage of time, as related to the surrounding circumstances, may yield the inference of acquiescence.  More commonly, however, there will have been an alteration of the position of the party advancing the plea which, taken together with the passage of time, yields the inference of acquiescence.  Moreover, the petitioner may be in a position to put forward an explanation for the delay that is sufficient to rebut any such inference.  The concept of detriment to good administration is relevant in cases where further administrative action has been taken in the belief that the decision in question has been acquiesced in.”

• He contended that the petition challenged all five decisions and not merely the initial decision.
• He had in any event challenged the initial decision at an early stage.This submission was made under reference to a letter from his then agents dated 13 January 2011.
• He had been misled by the terms of the initial decision into not challenging it thus the respondent was personally barred from relying on the plea of mora, taciturnity and acquiescence.The respondent was personally barred from founding on the initial decision as she had not acted upon it.The petitioner accordingly did not think it would be acted upon and thus had failed to challenge the initial decision.Lastly he had not challenged the initial decision as he believed he had leave to remain until August 2010 and thereafter believed he had to make the further applications for leave to remain before raising judicial review proceedings.

Discussion
[23]      The legal principles which apply to a plea of mora, taciturnity and acquiescence are these:  delay on its own is not sufficient to uphold such a plea; rather all three elements require to be present; the essence of the plea is acquiescence which is to be inferred from the petitioners inaction and silence; prejudice or reliance on the part of respondent are not necessary elements of the plea, however, acquiescence may be inferred from their existence; and the decision of the court is not discretionary in nature, it is for the court to determine whether the plea has been established by the party asserting it.

[24]      Given the argument before me a preliminary question which has to be answered is this:  on a proper understanding of the petition which decisions are challenged by the petitioner?

[25]      In my view the clear answer to this question is this:  the only decision which is challenged is the initial decision.

[26]      At paragraph 4 of the petition in four short sub-paragraphs the petitioner sets out the basis of his legal challenge:

(a)        Directly challenges the procedural fairness and the way that the discretion was exercised in relation to the curtailment of the petitioner’s leave to remain as a work permit holder.  That contention cannot be read in any other way than as a challenge to the initial decision.

(b)        Again it is an attack on the lawfulness of the initial decision under reference to the petitioner’s rights in terms of articles 6 of the Convention.

(c)        Again refers to the alleged breach of the petitioner’s article 6 rights and again must be a reference to the initial decision.  When the article 6 argument is developed later in the petition it is focused entirely on the initial decision.

(d)       Relates to an argument based on estoppel, however, it is based on what is said to be advice given by the respondent in terms of the initial decision.  Once more it clearly relates to the initial decision. 

[27]      The petitioner’s later applications for leave to remain resulting in the decisions of 16 August 2010, 15 June 2011 and 1 May 2013, are all broadly founded on an assertion of breach of article 8 of the Convention, should the petitioner not be allowed to remain in the United Kingdom or petitioning the respondent to exercise her discretion in exceptional compassionate circumstances.  They do not seek to challenge the initial decision which was based on his employment having been terminated and that accordingly his leave to remain as a work permit holder was terminated.  The only reference in these decisions to the initial decision is to the effect that the petitioner is reminded in the decision letters that he is an over-stayer given the initial decision.

[28]      I can identify in the petition no challenge with respect to the way the respondent carried out the balancing exercise in terms of article 8 when making these three decisions or in the way she has approached any other issue raised.

[29]      Overall, on a proper understanding of the petition it challenges the initial decision and not any of the later decisions.

[30]      In that it is the initial decision which is truly challenged by these judicial review proceedings the relevant time period when considering the issue of mora is the seven years and nine months from the initial decision until the judicial review proceedings were raised.  Given the administrative law context of the present judicial review proceedings and given the requirements of good administration a delay of such a length clearly in my view amounts to unreasonable delay.  All of the information necessary to raise the present judicial review proceedings was available to the petitioner within a short period of the initial decision being made.  There was no necessity to ingather a great deal of information which could have taken a considerable period of time.  There were no issues of any particular complexity with respect to the initial decision which would have required a considerable period of time in order to consider them.  Having regard to the whole circumstances, in the absence of good reason as to why the judicial review proceedings were not raised until seven years nine months had elapsed, mora is clearly established.  The question of good reasons as to why proceedings were not raised at an earlier point arises sharply in this case and I shall turn to deal with this issue separately, later in this opinion.

[31]      Even, if my above analysis of the position is incorrect, and there is a challenge to each of these decisions, they were made in 2010, 2011 and on 1 May 2013, in my view the delay in bringing the judicial review proceedings in relation to each of the above is, in the absence of good reasons explaining why there was a delay, unreasonable and thus mora would be established.

[32]      With respect to the reply to the respondent’s pre-action protocol letter that does no more than refer back to the earlier decisions and sets forth why the respondent had reached these various decisions.  Accordingly it does not seem to me to be a separate decision which could properly be challenged.

[33]      Turning to taciturnity:  the failure to speak out in assertion of the right in circumstances where a reasonable person would have done so.  The petitioner’s argument that he had asserted his right by the various applications for leave to remain made following upon the initial decision had a certain initial attraction, however, on further reflection I believe it to be misconceived.

[34]      These later applications did not challenge the initial decision.  On the contrary they sought leave to remain in the United Kingdom on an entirely different basis.  The later applications were based upon assertion of rights in terms of article 8 of the Convention and the exercising of discretion where exceptional compassionate circumstances were asserted to exist.  The petitioner in these applications was not saying that the initial decision was wrong.  Rather he was saying he was entitled to remain in the UK on a different basis.  He at no point after the initial decision sought to put forward that the initial decision was wrong until the raising of the present judicial review proceedings.  I am persuaded that to seek to remain in the UK on a basis other than that considered in the initial decision does not amount to an assertion that the initial decision was challenged.  Rather given that he was applying on a different basis to remain in this country the natural inference is that he was not asserting that the original decision was wrong and in fact was accepting that decision.  Thus his reason for founding on a different basis in order to stay in the UK.

[35]      The petitioner in the course of his submissions directed my attention to a letter from his then legal agents to the respondent on 13 January 2011 and submitted that the terms of this letter asserted a challenge to the initial decision.  He relied on a particular passage in this letter which was in the following terms:

“On the other hand when the letter for curtailing our client’s work permit arrived it stated that the permission to work ends on 31/08/07 and went further to state that our client’s do not have to go to Ghana because of that decision.  As a result, applying the legal rationality the standard interpretation may imply to invoke the Secretary of State’s discretion to remedy the defect and to ensure fair justice.”

[36]      I am unable to understand what this section of the letter precisely means.  However, looked at in the context of the whole terms of the letter and when it was written it appears to be part of an article 8  or exceptional compassionate circumstances argument.  It does not seem to me on a fair reading of the whole letter to raise a challenge to the initial decision.

[37]      Turning to the various steps the petitioner was taking in relation to challenging the decision of his employers to terminate his employment these appear to have ended by November 2007 when the petitioner’s case before the Employment Tribunal was withdrawn by him.  Thus although it could be argued that until November 2007 he was taking steps to try and respond to the initial decision by challenging the basis for that decision, that process ended in November 2007.  Thereafter, any other steps he took regarding other employment had no relevance to the original decision and in no sense could be said to be asserting any form of challenge to the initial decision. 

[38]      The petitioner in the course of his submissions raised two further issues, namely:  lack of reliance by the respondent on the initial decision and the petitioner’s silence and inaction following thereon together with the lack of prejudice to the respondent arising from the petitioner’s silence and inaction.  I have stated earlier that the establishing of neither reliance nor prejudice is necessary to establish a plea of mora, taciturnity and acquiescence.  The section of the judgment of the Lord Ordinary in Anderson to which I was referred does not challenge that generally understood position.  The Lord Ordinary accepts:

“That in some cases the passage of time, as related to the surrounding circumstances, may yield the inference of acquiescence.”

[39]      I believe that in the present case the very lengthy passage of time (in the context of judicial review proceedings where the relevant period is likely to be counted in months, see:  United Cooperative Limited v National Appeal Panel for Entry to the Pharmaceutical List [2007] SLT 83 at paragraph 30) when viewed against the whole circumstances could yield, in the absence of a good explanation for the silence and inaction, such an inference.

[40]      In any event, the respondent has to an extent in each of the later decisions, relied on the initial decision in that in each of these she has referred to the original decision and pointed out to the petitioner that he is an over-stayer.  The respondent appears at all stages when the matter came before her following the initial decision to have approached the matter on the basis that the petitioner was not challenging the initial decision.

[41]      I have considered whether the respondent’s failure to issue removal directions is of any significance when considering whether the plea has been established.  As a matter of law it is not necessary for such directions to be issued at the same time as the curtailment of leave decision.  However, after seven years and nine months it is not entirely clear to me why the respondent has not issued such directions.  No explanation was given to me by the respondent’s counsel in the course of submissions as to why this step had not been taken.  However, whatever the reason for this decision not to proceed to issue removal directions, it does not prevent the respondent advancing a plea of mora, taciturnity and acquiescence.  This is a plea which looks to the conduct of the petitioner and the inferences which can be drawn from that.  In essence the conduct of the respondent is not of relevance in relation to such a plea and is really only of relevance in relation to a plea of personal bar.  The petitioner did as I understood it seek to advance a personal bar argument.  In advancing such an argument it would be essential for the petitioner to set forth actings of the respondent or inaction on her part which was inconsistent with her seeking to rely on the initial decision.  For the reasons earlier set out mere failure to issue removal directions is not sufficient to amount to inaction which is inconsistent with her seeking to rely on the initial decision.  Beyond that as I have set out earlier, in her later decision letters she asserts that the petitioner is an over-stayer and thus asserts the position in the initial decision.  She is thus relying on the initial decision.  The argument that the respondent is personally barred is without substance and I reject it.

[42]      The final matter raised by the petitioner is this:  arising from a combination of the terms of the initial decision letter and certain unspecified advice he was given he believed that he continued to be entitled to remain in the United Kingdom until August 2010 and further believed that he could not challenge the initial decision by way of judicial review procedure until he had exhausted all other remedies.  His understanding as regards the issue of exhausting all other remedies was that he had to make the further applications for leave to remain as set out in the petition in order to have exhausted his alternative remedies and thus be entitled to raise judicial review proceedings.  Thus he argued his inaction and silence until the raising of the judicial review proceedings could not be said to amount to mora and taciturnity.  It was his position that the foregoing amounted to good reason why there had been this delay and thus rebutted the inference of acquiescence which could be taken from his silence and inaction.

[43]      The argument in relation to believing that he continued to be entitled to remain in the UK despite the initial decision was based on a single sentence within the initial decision letter:  “You are not required to leave the United Kingdom as a result of this decision.”

[44]      In order to rebut the above argument I am persuaded that it is not enough to show that:  the petitioner’s understanding of the terms of the initial decision letter is wrong in law; nor is it enough to show that his understanding of what the initial decision said was unreasonable and finally nor is it sufficient to show that his understanding of what he required to do before he could raise a judicial review was a misunderstanding of the position.  Rather in order to rebut this particular line of argument advanced by the petitioner it is necessary to show that he did not truly believe that (1) he had the right to remain until August 2010 and thereafter (2) he was not in a position to raise judicial review proceedings until 2015.  If he was to establish that he had such beliefs I am persuaded that this would be sufficient to supply good reason for his inaction and silence between 2007 and 2015 and therefore to provide a complete answer to the plea of mora, taciturnity and acquiescence by rebutting the inference which could be taken from his silence and inaction.  I have only been addressed by way of legal submissions and I have not heard any evidence.  Without hearing evidence I am unable to arrive at a decision as to the honesty of the petitioner’s asserted beliefs.  I accordingly am of the view that before I could give a decision with respect to the plea of mora, taciturnity and acquiescence I would require to hear evidence on the single limited issue as to whether the petitioner honestly held these beliefs.  In light of my said decision regarding this issue I would intend to have the case put out by order in order that a proof could be fixed in relation to this single point. 

[45]      I was of course addressed on a secondary issue namely the relevancy of certain of the petitioner’s averments.  Having regard to the way that the argument developed before me I believe that it would be appropriate for the issue of mora, taciturnity and acquiescence to be decided before turning to that issue and I accordingly would not intend to write on that issue at this stage.