PETITION OF ZBIGNIEW GACEK FOR JUDICIAL REVIEW OF A DECISION OF THE SECRETARY OF STATE FOR THE HOME DE4PARTMENT TO DECLINE TO ACCEPT THAT THE PETITIONER HAS MADE A FRESH CLAIM FOR ASYLUM
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 159
P947/15
OPINION OF LADY WOLFFE
In the petition
ZBIGNIEW GACEK
Petitioner;
for
Judicial Review of a decision of the Secretary of State for the Home Department to decline to accept that the petitioner has made a fresh claim for asylum
Petitioner: Forrest; Drummond Miller LLP
Respondent: Pirie; Office of the Advocate General
25 November 2015
Introduction
[1] In this petition for judicial review, as amended in the course of the hearing before me, the petitioner seeks reduction of:
- the decision of the Secretary of State for the Home Department (“the Secretary of State”) of 12 August 2015 to deport the petitioner (“the Deportation Decision”); and
- the decision of the Secretary of State, also of 12 August 2015, to certify in terms of regulation 24AA of the Immigration (European Economic Area) Regulations 2008 (“the Regulations”) that removal of the petitioner to Poland was not unlawful (“the Certification Decision”).
Pursuant to those decisions, on the 28 August 2015 the Secretary of State issued directions for removal of the petitioner from the UK to Poland on 3 September 2015. The Advocate General for Scotland is the appropriate law officer in terms of section 1 of the Crown Suits (Scotland) Act 1857 to be called as respondent in respect of decisions of the Secretary of State.
[2] At the procedural first hearing before me the respondent’s counsel resisted the fixing of a first hearing, as would normally be done at this stage, but sought dismissal of the petition tout court. He did so on two bases: first, that insofar as this petition related to the deportation decision, it was incompetent because the petitioner had an alternative remedy which he had failed to exercise (in terms of the respondent’s third plea-in law); and secondly, that insofar as this petition related to a challenge to the certification decision, it was of no practical utility (in terms of the respondent’s fourth plea-in-law).
Background
[3] After arriving in the UK in 2006 and working for a period of time, the petitioner obtained a certificate affirming his entitlement to work in the UK as a member of the EU in terms of an European Economic Area (“EAA”) registration. It is stated in the petition that the petitioner’s wife and family joined him in the UK in about 2007. The petitioner returned to Poland in about 2011 where he was convicted of offences and which resulted in his serving a one‑year term of imprisonment there. After his release in February 2013 he returned to the UK and resumed residence with his family.
[4] On 10 July 2015 the respondent sent the petitioner notice of liability to deportation. The petitioner resisted this on the basis that he had not been convicted of any offence in the UK. On 9 August 2015 the petitioner was arrested for motoring offences in the UK. He pled guilty and was fined. On 12 August the respondent issued a decision to deport the petitioner and also issued the certification decision. While the petitioner had a statutory right of appeal to the First‑tier Tribunal (“the FTT”) against the decision of the Secretary of State to deport him, he did not exercise that right of appeal. There is no statutory appeal afforded in respect of a certification decision. On 28 August 2015 the Secretary of State issued the directions for deportation. These were issued after the time for any timeous appeal to the FTT against the deportation decision had lapsed.
Statutory context
[5] The certification decision was taken by virtue of regulation 24AA of the Regulations, which came into force on 28 July 2014, and which provides:
“(1) This regulation applies where the Secretary of State intends to give directions for the removal of a person (‘P’) to whom regulation 24(3) applies, in circumstances where—
(a) P has not appealed … or
(b) P has so appealed but the appeal has not been finally determined.
(2) The Secretary of State may only give directions for P's removal if the Secretary of State certifies that, despite the appeals process not having been begun or not having been finally determined, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of P's appeal, would not be unlawful under section 6 of the Human Rights Act 1998 […],
(3) The grounds upon which the Secretary of State may certify a removal under paragraph (2) include (in particular) that P would not, before the appeal is finally determined, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.”
Scope of matters argued at the procedural hearing
[6] The respondent moved what essentially are preliminary pleas. The respondent’s counsel first addressed me under reference to rule 58.3 of the Rules of the Court of Session 1994 and paragraph 12 of the Practice Note No 2 of 2012 on the powers available to the court at this stage in a petition for judicial review. (It should be noted that this petition was raised before the new rules governing judicial review were brought into force.) The court had power to dismiss a petition without merit at this stage, for example on the grounds of incompetency. While the petitioner’s counsel was initially reluctant to engage with this contention, he accepted that it was open to the respondent to make the motion that he did and for the court to deal with it at this stage.
[7] I was not addressed on the merits of the petition which concerned whether or not the Secretary of State erred in law in having regard to the petitioner’s convictions within the UK (“the merits”). Accordingly, determination of the merits of the petition is outwith the scope of this decision.
Submissions for the respondent
[8] The respondent’s counsel began by referring to regulation 24AA, quoted in paragraph [5] above. Neither of the circumstances in regulation 24AA(1)(a) or (b) applied to the petitioner. This was because the petitioner never appealed the deportation decision, as he had a right to do within 14 days.
[9] The respondent’s counsel explained that, in general, the Secretary of State may take a decision to deport a person and a decision to certify under regulation 24AA at the same time as, indeed, she had done on 12 August 2015 in respect of this petitioner. On service of the deportation decision and certification decision on him, the Secretary of State had issued the deportation decision and given herself the power to remove the petitioner by certification, notwithstanding any right of appeal by the petitioner.
[10] If a person served with a decision to deport appeals that decision timeously, but is removed from the UK under certification, as is permitted in terms of regulation 24AA of the Regulations, the question that would then arise is: from where will the appeal by that deported person be made? This is because by regulation 29AA of the Regulations, a person deported under certification who has appealed may apply for temporary permission to return to the UK to appear in person. Subject to certain limitations, the Secretary of State is obliged to grant that permission. Alternatively, the person deported under certification may exercise an out of country appeal (“an OOC appeal”).
Incompetency of judicial review of the Deportation Decision
[11] Turning to the circumstances presented by this petition, the respondent’s counsel argued that in relation to the deportation decision this petition was incompetent. The petitioner had a statutory right of appeal against the deportation decision to the FTT but he had failed to exercise it. In those circumstances, judicial review of the deportation decision was incompetent. Further, in the circumstance of this case, where there was never any appeal against the deportation decision, then any challenge to the certification decision by way of judicial review is itself without any practical purpose. In these circumstances, the petitioner’s petition fell to be dismissed at this stage.
[12] In support of his contention that judicial review of the deportation decision was incompetent, the respondent’s counsel referred me to a recent decision of Lord Jones in MH (Bangladesh) v Secretary of State for the Home Department [2014] CSOH 143, and in which both counsel appearing before me had also appeared. He also referred to The Queen (on the application of Kiarie) and the Secretary of State of the Home Department [2015] EWCA Civ 1020.
[13] In MH (Bangladesh) Lord Jones dismissed a petition on grounds similar to which dismissal was sought before me. It is apparent from the report in MH that Lord Jones heard argument over several days and had the benefit of extensive reference to authorities on what he termed the “general principle”: namely, that in circumstances where a petitioner had an alternative remedy to challenge a decision but fails to avail himself of it, he may not thereafter challenge that decision by judicial review. Part of the decision in MH (Bangladesh) was taken up with discussion of what might be called a characterisation question: whether the availability of an alternative remedy rendered judicial review proceedings incompetent, or whether, though competent, the court retained a discretion to dismiss petitions for judicial review in such circumstances. Having regard to the nature of the supervisory jurisdiction invoked in an application for judicial review, I would be inclined to the latter characterization. I have not had the benefit of the fuller argument presented to Lord Jones and in the present case simply reserve my opinion on that issue. In any event, however characterised, the petitioner’s challenge to the deportation decision fell foul of the general principle and there were no special or exceptional circumstances to exclude the general principle.
[14] After a thorough review of the authorities in MH (Bangladesh), Lord Jones summarised the state of the law at paragraph [32], where he stated:
“32 In stating the general principle, therefore, rather than adopt Lord Coulsfield’s qualification of it, in my view it is preferable to do so as expressed by the Lord Justice Clerk and Lord Kissen in BRB, following what was said by the Lord Justice Clerk (Scott Dickson) and Lord Ormidale in Dante: it is not competent to have recourse to the supervisory jurisdiction when provision is made by statute for a form of review by which the question sought to be raised in proceedings could have been decided, and where the statutory procedure has not been exhausted; unless the party seeking review can demonstrate that there are special or exceptional circumstances which exclude the operation of the principle. Guidance on what may constitute such circumstances is to be found in BRB and Tarmac, bearing in mind that the court should be wary of trespassing on the jurisdiction of a tribunal which is competent to determine the matter in issue.”
[15] In Kiarie, cit. supra, the Court of Appeal in England accepted (at paragraph [31]) that a certification decision of the Secretary of State was amenable to judicial review. The court in Kiarie rejected the argument that an OOC appeal failed to afford an effective remedy such as to infringe the procedural rights afforded by article 8. In reliance on Kiarie, and particularly having regard to what was said at paragraphs [63] to [66] and [69] thereof, the respondent’s counsel argued that while an OOC appeal might be less advantageous or more inconvenient than an in‑country appeal, such an appeal still permitted participation sufficient to meet the essential requirements of effectiveness and fairness for the purposes of article 8 of the ECHR.
[16] Turning to the petitioner’s pleadings, counsel for the respondent contended that the general rule applied here: the petitioner had a legally sufficient right of appeal, whether in country (if he sought and was granted temporary permission to return) or an OOC appeal, which he had not exercised. In respect of the exception to the general principle, he had no pleadings in order to bring himself within the exception to the general principle that there were special or exceptional circumstances. At this point, counsel for the petitioner intervened to move a minute of amendment. To enable the matter to be determined as a matter of substance, rather than on any deficiency in the pleadings, the respondent’s counsel did not resist that amendment.
The petitioner’s Minute of Amendment and whether an OOC appeal was ineffective
[17] It is necessary to set out parts of the petitioner’s minute of amendment. So far as material to the matters argued before me, paragraph 3 of the petitioner’s minute added the following passage at the end of statement 5 of the Petition:
“With reference to the respondent’s averments in answer, denied that judicial review is not competent. Explained and averred that this remedy is excluded only when the alternative remedy is effective. An effective remedy is one which is clear, accessible and adequate (British Railways Board v Glasgow Corporation 1976 SC 24) and/or where there are no special circumstances which would preclude its proper or effective operation. (City Cabs (Edinburgh) Limited v City of Edinburgh District Council 1988 SLT 74). The remedy of appeal from abroad having regard to the wording of Regulation 24AA (2) and (3) and reading the decision as a whole and not separating the two elements (see Statement 2) is not in the present circumstances an effective remedy. Its operation would require the petitioner (having marked an appeal) to return to Poland (leaving his family – see below), return to the UK (at his expense); submit to arrest on return; and prepare to conduct an appeal in circumstances that are less than satisfactory (R (Macastena v Secretary of State for the Home Department (2015) EWHC 1141). Such a remedy cannot be said to be clear, accessible or adequate in the particular circumstances of this case and the petitioner’s personal circumstances.”
[18] On the facts, it was said, an in-country appeal was not available to the petitioner. The petitioner’s counsel argued that any OOC appeal would be “less than satisfactory”. In short, it was contended that an OOC appeal would not constitute an effective remedy having regard to the “particular circumstances of this case and the petitioner’s personal circumstances”.
The Respondent’s response to the petitioner’s minute of amendment
[19] The respondent’s counsel then addressed himself to the matters raised in the petitioner’s minute of amendment. In respect of the circumstance that the petitioner would require to return to Poland, the respondent’s counsel observed that, as already noted, regulation 29AA of the Regulations enables a person who has been deported subject to certification to return temporarily for the purposes of appearing personally to move an appeal against the deportation decision. Here, there was no suggestion that the petitioner would be unable to return, or could not return at his own expense.
[20] Secondly, in relation to the circumstance that the petitioner would require to return to the UK at his own expense, the position was that whether the petitioner exercised an OOC appeal or returned in order to exercise an in-country appeal, in either case, he had (if he had appealed timeously) a legally sufficient and therefore effective remedy.
[21] Thirdly, in respect of the contention that the petitioner might be arrested on return, the respondent’s counsel had no information one way or the other on this contention.
[22] Finally, in respect of the contention of the petitioner having “to leave his family”, such an argument was circular. This might have been something that could have formed part of a statutory appeal to the FTT, if the petitioner had chosen to make such an appeal, and in which he could have contended that his deportation was incompatible with article 8 of the ECHR. But such a contention was entirely beside the point in ascertaining the suitability of the FTT as a forum to determine that. It was irrelevant. The issue is not whether deportation infringed any right of the petitioner under article 8 (which goes to the merits of the petition); it was whether he can competently challenge such a decision by way of judicial review, rather than pursue that argument before the FTT by the statutory appeal. Even if it were assumed that the deportation decision infringed the petitioner’s right to family or private life under article 8, that factor was of no moment in determining the competency or otherwise of these proceedings as a mode to challenge that decision.
[23] In relation to the assertion that the petitioner had a family, the respondent’s counsel pointed out (under reference to decision letter containing the certification decision and the deportation decision, no. 6/2 of process) that the petitioner had failed to provide any detail about his children, their domestic circumstances, or whether the petitioner had any subsisting parental responsibilities in relation to them; and, indeed, the petitioner had failed to produce any documentary material to evidence the existence of his children, despite having been asked to do so. Even assuming, against this failure, that the petitioner’s rights under article 8 were engaged or infringed, that fact did not answer the question of whether these proceedings for judicial review were a competent means to challenge the deportation. Again, this was because the petitioner had the alternative remedy by way of a statutory appeal to the FTT and which he had failed to exercise.
[24] The respondent’s counsel went further. Even assuming (i) that the petitioner had demonstrated that his article 8 rights were infringed, and (ii) that an OOC appeal was inadequate, and that therefore an in‑country appeal was a necessary condition to a legally sufficient appeal, on these hypotheses it was not the deportation decision that precluded the petitioner. What stood in his way was the certification decision. He turned to address the petitioner’s attack on that decision.
The incompetency/lack of utility of the challenge to the certification decision
[25] In advancing his attack on the lack of utility of the petitioner’s challenge to the certification decision, the respondent’s counsel explained that there is no statutory appeal against a certification decision. Having regard to the scheme of the Regulations, a certification decision had only an interim quality. All it did was regulate the whereabouts of the person subject to deportation during the currency of any appeal. It was well recognised in this field that a certification decision may be challenged by judicial review. However, that is only a relevant step if the petitioner has taken the anterior step of marking an appeal against the deportation decision. In this case, the petitioner had failed to do. Accordingly, there was simply no utility in challenging a certification decision, where there was (and in the case of the petitioner could now no longer be) an appeal against the deportation decision itself. If the petitioner did not appeal against the deportation decision, then the Secretary of State could remove him from the UK because of the deportation order. If he did appeal, where he undertook that appeal (i.e. if OOC or if he returned temporarily for an in‑country appeal) depended on the choice made by the petitioner. In any event, having regard to the point in time at which the Secretary of State issued her directions for deportation (no 6/1 of Process), on 28 August 2015, the time for making a timeous appeal against the deportation decision had passed.
Reply on behalf of the petitioner
[26] In his reply, the petitioner’s counsel initially argued that the respondent’s motion was premature. This was on the basis, it was said, that leave had been sought to appeal the decision in Kiarie, cit. supra. He did not know whether leave had been granted. He resisted, albeit weakly, that the court should deal with the respondent’s third and fourth pleas‑in‑law at this stage. He accepted the offer of a two hour break to better acquaint himself with the case of Kiarie and to prepare a fuller reply to the motion against him.
[27] Upon renewing his submissions in reply, the starting point, the petitioner’s counsel said, was that the certification decision and the deportation decision were inextricably linked ‑ as was apparent from the Secretary of State’s letter of 12 August (no. 6/2 of process) which recorded the reasons for both of those decisions. Accordingly, it was, he said, artificial to consider them separately. When pressed at a later point, the petitioner’s counsel did accept that “as a matter of legality” the certification decision and the deportation decision were not inextricably linked, albeit he did not offer any further or other analysis as to how these two decisions relate to each other.
[28] While the petitioner’s counsel accepted the general principle, as it was called in MH (Bangladesh), that judicial review was incompetent if there was an alternative remedy, he contended that the petitioner’s case was within one of the recognised exceptions to that general principle. The special circumstances here were those added by the minute of amendment: those factors meant that the petitioner here did not have an effective remedy. Judicial review was therefore not incompetent.
[29] The petitioner’s counsel also argued that every case was different and had to be determined on its own merits. The Secretary of State could not certify removal, if the effect of that was to breach the article 8 rights of the petitioner. It was contended that the certification decision did breach the petitioner’s right to family life under article 8. Even if the petitioner never challenged the deportation decision, it was said, it was open to him to challenge the certification decision by way of judicial review because his removal by virtue of the certification decision infringed his article 8 rights.
[30] In respect of the decision in Kiarie, he sought to distinguish this on the basis that an article 8 case is fact-sensitive and that the nature of the petitioner’s offending behaviour was different. He accepted, however, that there was no substantive information in the petition to support the contention that the petitioner’s article 8 rights were infringed.
[31] In reply to the question of what effect there was on the deportation decision, where that was not appealed, by a challenge to certification decision by way of judicial review, the petitioner’s counsel accepted that there was none. He accepted that these judicial review proceedings were, in effect, a backdoor challenge to the deportation decision by reason of the petitioner’s failure to exercise his statutory right of appeal against the deportation decision. He had to do so by way of judicial review because, it was said, he now had no other means to do so. He accepted it was now not competent to challenge the deportation decision by judicial review.
[32] In relation to the Kiarie decision, the petitioner’s counsel did not otherwise endeavour to distinguish it. He accepted it was of persuasive authority for this court. He accepted that all he could do in the circumstances was rely on the fact that steps were being taken in England to challenge it (by way of seeking leave to appeal).
[33] In relation to an OOC appeal, counsel for the petitioner’s position was that this was not an effective remedy. He referred to the terms of his amended statement 5, set out in paragraph [17] above. He did not elaborate on these in his oral submissions. He did not reply to the submissions on these matters by counsel for the respondent. While he referred, in passing, to paragraphs 18, 19 and 21 of The Queen (on the application of Macestena) v SSHD [2015] EWHC 1141 (Admin), he did not explain how those comments ‑ which related to an unsuccessful challenge to the lawfulness of regulation 24AA of the Regulations or the potential unlawfulness that might arise if the Secretary of State impeded or barred the return of a deported person—fell to apply in the instant case. It was said that these comments showed that the effectiveness of an OOC remedy “was in doubt”. He did not refer me to the other cases introduced into his pleadings by the minute of amendment.
[34] The petitioner’s counsel moved me to repel the respondent’s motion and to allow everything to proceed to a first hearing.
Discussion and decision
[35] The Secretary of State may issue a deportation order in order to deport someone if she has taken a decision to do so. The deportation order is authority for her to remove the person subject to such an order from the UK, unless the lawfulness of that decision is successfully challenged. There is a statutory right of appeal to the FTT against a deportation order. In this case, the petitioner had a right of appeal by virtue of section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 to the FTT against the deportation decision.
[36] Additionally, the Secretary of State may, if she chooses, regulate the whereabouts of the person who is subject to the deportation order by the making of a certification decision. In particular, the effect of a certification decision is to enable removal of the person subject to the deportation order furth of the UK before his or her appeal against a deportation order is finally determined. The person who wishes to appeal against the deportation order and who has been removed under certification may remain outside the UK and exercise an OOC appeal, or the person removed may apply for temporary permission to return to the UK in order to appeal in person. Accordingly, the practical effect of a certification decision is to regulate ad interim the whereabouts of the person who has been made subject to a deportation order and who challenges that appeal, until that appeal against the deportation decision is finally determined.
[37] However, a certification decision may have only a provisional quality. It enables removal of a person subject to a deportation order prior to the final determination of any appeal against the deportation order. If there is no appeal made against a deportation order (the circumstance in regulation 24AA(1)(a)) or if such an appeal has been finally determined (the circumstance in regulation 24AA(1)(b)), then a certification decision which had the potential to authorize removal in those circumstances has never been operative. In circumstances where the person subject to a deportation order does not make a statutory appeal against that order, then neither of the preconditions for the application of a certification decision is capable of being satisfied. To put it another way, if the circumstances by which a certification decision potentially being the operative power under which the Secretary of State may remove an individual never occur, it ceases to be an available power authorizing such removal.
[38] Where, as here, there has been no appeal against the deportation decision, then the Secretary of State’s authority for removal of the petitioner is the deportation order itself and the potentiality of any certification decision as providing authority for removal of the petitioner has never been realized. In other words, while a certification decision may have been taken at the same time as a decision to deport, it is only habile to authorise the removal of the person subject to the deportation order if that person makes an appeal. If he does, then the lawfulness of his removal pending his appeal is governed by the certification decision. If he does not appeal against the deportation order, then that deportation order remains the authority in terms of which he is to be removed from the UK. That is the circumstance in the instant case.
[39] I can deal briefly with the parties’ submissions. I accept the respondent’s submissions in support of both of his pleas. The petitioner has failed to avail himself of an alternative remedy, being a statutory appeal to the FTT. In the absence of special or exceptional circumstances, that precludes an application for judicial review to challenge the deportation decision. The petitioner’s counsel conceded as much. I do not accept that anything advanced by the petitioner’s counsel brings the petitioner within the recognised exceptions to the general principle. Insofar as directed against the deportation decision, this petition is, at the very least, irrelevant if not incompetent. If it is a matter of discretion, I exercise that discretion to uphold the respondent’s challenge.
[40] In relation to the petitioner’s challenge to the certification decision, on the facts of this case, this is misconceived. The Secretary of State’s certification decision could have been the authority under which the petitioner might have been removed (had that occurred). However, the availability of that power as authorizing the petitioner’s removal has lapsed, once the time for marking an appeal passed without any appeal being marked. Any removal of the petitioner will be by virtue of the now unimpeachable deportation decision, and any directions issued thereunder. In those circumstances, any challenge to the certification decision in isolation from any challenge to the deportation decision (as might have been done), and especially after that decision is now unappealable, is of no utility. I propose to uphold the respondent’s motion to dismiss the petition, but shall first put matters out by order to deal with any ancillary matters or motions.