EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Macfadyen
Lord Wheatley
Lord Penrose
|
[2006] CSIH 19
P412/05
|
|
|
OPINION OF THE COURT
delivered by LORD
MACFADYEN
in
RECLAIMING MOTION BY THE
PETITIONER
in the Petition
of
ASMAT MUSHTAQ,
Petitioner and Reclaimer
against
SECRETARY OF STATE
FOR THE HOME DEPARTMENT,
Respondent
for
Judicial Review of a
decision to deport the petitioner and to detain her in a detention centre
_______
|
Act: Party (Petitioner and Reclaimer)
Alt: N. Thomson; Solicitor to
the Advocate General for Scotland (Respondent)
3 March
2006.
Introduction
[1] The
petitioner is a citizen of Pakistan. She seeks judicial review of decisions by the
respondent to deport her, and in the meantime to hold her in detention. By interlocutor dated 8 December 2005 the Lord
Ordinary dismissed the petition. The
petitioner reclaimed against that interlocutor.
On 14
February 2006 the reclaiming motion was appointed to the summar
roll. No date has yet been fixed for the
hearing on the summar roll.
The single bill
[2] The case came before us on the single
bills on the petitioner's motion. The
motion was in the following terms:
"Given that
a ground of appeal concerns representation at the hearing of the Judicial
Review before [the Lord Ordinary] and that the European Court of Justice (sic) has ruled in the case of Engels (sic) v The Netherlands that
legal assistance is a choice that is up to me to consider and not the Court or
Administrative body accordingly I require James McDonald to present my appeal,
if this is not allowed I require this Court to make a reference to the European
Court of Justice in terms of Article 234(3) of the European Treaty (as amended)
for a preliminary ruling on this matter".
The motion was opposed on the
respondent's behalf
[3] Shortly
before the case called on the single bills there was presented to the clerk of
court a document headed "Submissions for Asmat Mushtaq". It contained a passage in the following
terms:
"Mr James
McDonald is not a solicitor. He is a
paralegal whom I consulted for legal advice after I was arrested and it was Mr
McDonald that arranged my release from Dungavel Detention Centre. ... I did not seek and I do not seek
immigration advice from Mr McDonald it is legal advice I need concerning
court matters that I am now involved in that I have sought and received."
The Submissions then go on to
paraphrase the terms of the motion.
[4] When
the motion called on the single bills the petitioner appeared in person. She requested that, because of her incomplete
command of English, her brother-in-law, Arshad Aslam, be permitted to speak on
her behalf. That had been permitted by
the Lord Ordinary. In the exceptional
circumstances we too permitted that course to be followed. Mr Aslam acted, in effect, as an informal
interpreter for the petitioner. He was
punctilious in communicating the court's questions to the petitioner, and
obtaining from her answers to convey to the court. We are grateful to him for his assistance.
[5] Mr
McDonald was present in court throughout the hearing of the single bill, but
quite properly made no attempt to intervene in the proceedings. It was evident, however, from what was said
by the petitioner through Mr Aslam that Mr McDonald had drafted the single
bill, and also the "Submissions" to which we have referred in paragraph [3]
above.
Engel v The Netherlands
[6] According
to the terms of the first part of the motion, the petitioner seeks to make the
requirement that James McDonald present her appeal on the basis of an
understanding of what was said in Engel v
The Netherlands (1976) 1 EHRR 647. That was a decision of the European
Court of Human Rights (not, as suggested in the motion, the European Court of
Justice). The case was concerned
primarily with claims under Articles 5, 6, 10 and 14. It appears to us that the passage on which
the petitioner seeks to rely is probably the following passage from paragraph 3
of the Separate Opinion of Judge Thór Vilhjálmsson:
"I
fail to see how, in a given case, a court - not to speak of an administrative
authority - can reasonably decide to what degree the accused is capable of
conducting his own defence."
That sentence is, however, preceded
by one in the following terms:
"As to Article 6 para. 3(c), a natural reading of the text
seems to me to indicate that it is up to the accused to decide whether he
defends himself in person or entrusts this task to a lawyer."
[7] In
our opinion it is clear that what the judge was saying in that passage in Engel was that it was for the party, not
the court, to decide whether to represent himself or herself, or whether on the
other hand to be represented by a lawyer. He was not saying that a party is free to
nominate anyone he or she chooses to appear on his or her behalf in court,
irrespective of whether the person chosen is qualified or entitled to appear in
the court in question. Engel affords no support for the
petitioner's demand that Mr McDonald represent her in this court, if Mr
McDonald has no right of audience here.
The Immigration and
Asylum Act 1999
[8] In his opposition to the single bill the
respondent asserts that Mr McDonald is not entitled, in terms of the
Immigration and Asylum Act 1999 ("the 1999 Act"), to provide immigration advice
or services. It is perhaps to meet that
point that the Submissions for the petitioner contain the sentence, "I did not
seek and I do not seek immigration advice from Mr McDonald." But that misses the point. What the petitioner seeks to have Mr McDonald
do, in presenting her appeal, would constitute "immigration services" within
the meaning of that phrase as defined in section 82 of the 1999 Act ("... the
making of representations on behalf of a particular individual ― (a) in
civil proceedings before a court ... in the United Kingdom"). Section 84(1) of the 1999 Act is in the
following terms:
"No person may provide immigration advice or immigration
services unless he is a qualified person."
The
meaning of "qualified person" is set out in section 84(2). Section 91(1) makes it an offence for a
person who is not a qualified person to provide immigration services.
[9] The result of those provisions is that
it would be an offence for Mr McDonald to represent the petitioner in these
proceedings if he is not a qualified person.
Nothing was said to us to suggest that he is a qualified person, and if
so, on what basis.
[10] What is more to the point for present
purposes, however, is that even if Mr McDonald is a qualified person, that
confers on him no right of audience in this court. The purpose of the provisions of the 1999 Act
to which we have referred is to protect those in need of immigration advice and
immigration services from unqualified purveyors of such advice and
services. A person who holds the status
of "qualified person" may give such advice and render such services without
committing an offence. Nothing in the
statutory scheme, however, expressly or by implication confers on every
qualified person a right of audience in every court in which immigration
services may be required.
Right of audience
[11] In the result, therefore, the question
comes to be whether Mr McDonald has any right of audience in this court. He has not.
Cases in this court may be conducted by (a) the party him or herself,
(b) a member of the Faculty of Advocates or (c) a solicitor who has extended
rights of audience in this court under section 25A of the Solicitors (Scotland)
Act 1980 ("the 1980 Act"). (It is
unnecessary, for present purposes, to mention the circumstances in which
lawyers from other member states of the European Union may appear in this
court.) Mr McDonald is not a party to
these proceedings. It is within the
knowledge of the court that he is not a member of the Faculty of
Advocates. We were informed in the
petitioner's written Submissions that he is not a solicitor; it follows that he
can have no right of audience under section 25A of the 1980 Act.
Result
[12] In these circumstances we must refuse the first
part of the petitioner's motion. Mr
McDonald has no right of audience in this court, and the petitioner has no
right to have her appeal presented by him.
[13] We do not understand the second,
alternative part of the motion. No issue
of Community law was raised before us.
It may be that the terms of that part of the motion are further evidence
of the confusion between the European Court of Justice and the European Court
of Human Rights that led to Engel being
referred to in the motion as a decision of the former court. Be that as it may, no ground for making a
reference has been put forward, and we must refuse that part of the motion too.
[14] We are concerned that the petitioner may
not have had the benefit of appropriate advice in respect of these
proceedings. We have therefore requested
the respondent to put together a list of those bodies who
are known to offer assistance in such cases and to intimate it to the
petitioner before the case next calls in court.
