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:     ­­­­­­­­­­­­­­­­­________________

 

 

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 £78,500. 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 £500.

[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.