IN THE PETITION OF MOHAMMED NADEEM BHUTTA and NAGMANA NAZLY ASLAM FOR JUDICIAL REVIEW OF A DECISION OF THE SECRETARY OF STATE FOR THE HOME DEPARTMENT v.
| OUTER HOUSE, COURT OF SESSION |
| | OPINION OF LADY COSGROVE in the Petition of MOHAMMED NADEEM BHUTTA and NAGMANA NAZLY ASLAM Petitioners; for Judicial Review of a Decision of the Secretary of State for the Home Department ________________ |
Petitioners: P. MacDonald; Campbell Smith & Co., W.S.
Respondent: Miss Maguire; Solicitor to the Advocate General
14 March 2000
This is a petition for judicial review of a decision by the respondent to enforce a Deportation Order in respect of the petitioners. Both petitioners are citizens of Pakistan. The first petitioner is currently detained in Longriggend Remand Centre on the orders of an immigration officer. The petitioners seek declarator that the decision of the immigration officer to remove them and their son from the United Kingdom is a decision which no reasonable immigration officer could have come to and as such is unlawful. The first petitioner also seeks an order for liberation ad interim pending the determination of this petition. The petition came before me on a motion by the petitioners for a first order in terms of Rule of Court 58.7 and for interim liberation, the respondent being the only person on whom service was sought. The respondent was represented at the hearing of the petitioners' motion and counsel invited me to refuse the petition at this stage, which failing, to refuse interim liberation.
The factual background
Both petitioners were born in Pakistan. The first petitioner entered the United Kingdom illegally in July 1998. He sought asylum at Gatwick Airport on the ground that he had a well founded fear of persecution in Pakistan. He presented his application using a false identity. He was granted temporary admission. He failed to attend for interview when requested to do so in January 1999. He was detained in Glasgow on 13 March 1999. He was then residing with his wife, the second petitioner, who came to the United Kingdom in September 1998. The first petitioner then re-applied for asylum in his correct name. That application was refused on 16 April 1999. He appealed to a special adjudicator against that refusal. That appeal was refused on 21 July 1999. No further appeal was open to him. The second petitioner also applied for asylum. Her application was refused and she too appealed to a special adjudicator. That appeal was refused on 17 February 2000. She too has no further appeal open to her.
The petitioners have a son, Abdul Fahed Nadeem who was born on 22 September 1999. On 28 February 2000 two letters from the petitioners' general medical practitioner relating to medical problems suffered by the second petitioner and their son were sent to the Chief Immigration Officer at Glasgow Airport. On 7 March 2000 the Chief Immigration Officer responded and indicated that removal directions had been set for 15 March 2000 in respect of both petitioners and in a subsequent letter indicated that, in his view, there was no bar to the petitioners' removal from the United Kingdom on medical grounds. The petition is presented on the basis of removal pending the resolution of the said medical problems being unreasonable in the Wednesbury sense (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 K.B. 223) and accordingly unlawful. Counsel indicated that he also proposed to argue that the petitioners were entitled to know why the two letters from their general medial practitioner were regarded as not being a bar to their removal on medical grounds.
Counsel for the respondent submitted that the letters contained nothing that would indicate the existence of any stateable case to the effect that the immigration officer had acted unreasonably on the information available to him. The fact that there was no substance in any criticism of the immigration officer could be established at the first order stage and the motion and, in consequence, the petition should be refused. It was submitted that it was competent for the Court to do so in appropriate circumstances. Such a course had been followed in Sokha v Secretary of State for the Home Department 1992 S.L.T. 1049, in the unreported decision in Butt v Secretary of State for the Home Department (Lord Gill, 15 March 1995) and also in Rafaqat Ali v Secretary of State for the Home Department 1999 S.C.L.R. 555. In his opinion in Butt, Lord Gill said:
"Without attempting to state any universal rule in the matter, I suggest that it would certainly be appropriate for the Court to consider, and indeed to refuse, the petition at a first order hearing in a case where (1) the respondent is represented; (2) all necessary documents are to hand; (3) the respondent wishes to have the petition disposed of without resort to a first hearing and is in a position to present a fully prepared case; and (4) there is no dispute of a factual nature such as to prevent the Court from making a properly informed decision at that stage."
I considered that the criteria set out by Lord Gill in the passage which I have quoted were satisfied in this case and that it was appropriate to consider the merits of this petition at that stage. At the conclusion of the hearing I intimated my decision to refuse the motion.
In relation to what was said on behalf of the petitioner on this matter, the letter relating to the second petitioner from her general medical practitioner, Dr Chaudrhy dated 23 February 2000 which is founded upon is in the following terms:
"I am writing regarding this lady who had a Caesarian Section in Sept 1999.
Post operatively she developed infection and continued to complain of abdominal pain. She needs further investigation to ascertain cause of this pain.
We plan to refer her to Gynaecologist for further investigations. It can take upto six months for investigations to be completed.
Should you require any further information please write to us. We will be quite happy to answer any queries."
The letter written on the same date by the same general medical practitioner relating to the medical condition of the child of the petitioners is in the following terms:
"I am writing on the same date regarding this patient who suffers from Infantile Eczema of moderate severity.
He requires treatment which is expected to continue for a year or so. Infants suffer from this condition because their skin is too sensitive to environmental factors and pollution can adversely effect the prognosis.
It is highly desirable that baby does not travel to Pakistan till he is about 12-15 months old. Environmental condition is Pakistan can exacerbate the condition.
Should you require any further information please write to us. We will be quite happy to answer any queries."
In a post-script to that letter, Dr Chaudhry says:
"The drugs used in this country might not be available in Pakistan and if available might be beyond reach of my patient's parents."
It is important, in my view, to bear in mind that the petitioners have now exhausted all the appeal procedures open to them. The second petitioner's appeal to the special adjudicator was refused on 17 February 2000. It is clear from the terms of two letters that the medical conditions to which reference is made existed prior to that date. I was told that neither of the medical conditions was raised as an issue in these appeal proceedings. No explanation was provided for that failure. What is now being suggested is the existence of medical grounds constituting a bar to the travel in terms of the removal directions. In that situation the letters require, in my view, to be scrutinised with some care.
The infantile eczema of which the child is said to suffer is described as being of moderate severity. There is a general statement as to the possible adverse effect of environmental factors. The reference to environmental condition (sic) in Pakistan is wholly unspecific and is not related to any particular area. Nor is there any comparison made with the child's present situation in Glasgow which cannot, on any view, be regarded as a pollution-free environment. I do not consider that the fact that drugs used in this country might not be available in Pakistan and, if available, might be beyond the reach of the petitioners is a relevant consideration for these purposes. So far as the second petitioner is concerned, I consider that there is nothing in the letter to indicate any bar to her travelling in terms of the removal directions. It is apparent that she has not yet been referred for gynaecological investigation; her doctor's plan is to do that at some stage in the future. I consider that there is nothing on the face of either of these letters which would cause any reasonable immigration officer to decide to halt deportation proceedings standing the immigration status of the petitioners. Further, and in any event, I was told that the immigration officer had taken the precaution of instructing his own medical officer, Dr Jackson to speak to the petitioners' general practitioner, Dr Chaudhry. A letter from Dr Jackson dated 9 March was produced in which he indicates that, in response to a specific question put to him on this matter, Dr. Chaudhry stated that the second petitioner was not unfit to travel by virtue of her medical condition. Dr Jackson indicates that Dr Chaudhry also noted that infantile eczema is common in Asians and is probably due to a lack of sunlight.
In these circumstances, I have reached the view that nothing has been advanced on the petitioners' behalf to cast doubt on the validity of the immigration officer's decision. I find that I cannot say that he was in any way unreasonable in deciding as he did. The petition must therefore be refused.
Interim liberation
If the question had arisen, I would have refused to grant the first petitioner interim liberation. He has what can fairly be described as an appalling immigration history. He has entered the country on two occasions illegally and on each occasion has used a false name. His first asylum application was submitted using a false identity. He has forged an identity card and various letters. He has a long history of serious deception, bogus identity and successful forgery. He has previously absconded. His counsel founded on the fact that he was liberated on bail by an adjudicator pending the outcome of his wife's application and was at liberty from 21 July 1999 to 23 February 2000 and during that period complied with all his bail conditions. It was submitted that he has shown that he can be trusted when at liberty. The sum of £3,000 was offered as caution and the petitioner also offered to report twice daily to his local police station. On behalf of the respondent, I was informed that the first petitioner had been released on interim liberation on the basis of his wife's difficult pregnancy and the fact that she had an asylum application pending. The decision to detain him reflected the risk that he would now abscond given that all avenues of appeal have been exhausted and that the incentive to comply pending consideration of his wife's application has now been removed.
The immigration officer is entrusted with a discretion in determining whether bail should be granted or not and it is, of course, not for me simply to substitute my own discretionary assessment. In any event, I am quite unable to decern any error of law or other ground which would entitle this Court, in the exercise of its supervisory jurisdiction, to interfere with the immigration officer's exercise of his discretion.
Having refused the petitioners' motion for first orders and interim liberation, I have dismissed the petition and found the petitioners liable to the respondent liable in expenses.