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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 104
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P4/07
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OPINION OF LORD MACPHAIL
in the petition of
R K
Petitioner;
for
Judicial Review of
a Decision by the Secretary of State for the Home Department
Respondent:
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Party
Respondent: A J Carmichael; Office of the Solicitor to the Advocate
General
19 June
2007
Introduction
[1] This
is a petition for judicial review of a decision by the Secretary of State for
the Home Department. The Secretary of
State has lodged answers. In the heading
of the petition, the decision brought under review is said to be one dated 7 November 2006 to detain the
petitioner under paragraph 16(2) of Schedule 2 to the Immigration Act 1971.
[2] Paragraph
16 is headed, "Detention of persons liable to examination or removal". As amended, it provides in part:
"(2) If there are reasonable grounds for
suspecting that a person is someone in respect of whom directions may be given
under any of paragraphs 8 to 10A [removal of persons refused leave to enter and
illegal entrants] [ . . . ], that person may be detained under the authority of
an immigration officer pending:
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions."
[3] The
heading of the petition is, however, misleading. The petition seeks not only declarator that the decision of 7 November 2006 is unlawful but also 16
other remedies. The petitioner is a
party litigant. It is he who has drafted
the petition, and he has appeared on his own behalf throughout these
proceedings. Several judges have
encouraged him to obtain legal representation, but he has not done so. That is unfortunate because, as will appear,
he is labouring under a number of serious misapprehensions about the law, and
his averments are in several places difficult to understand. The petition and answers have been made up
into a record which runs to 37 pages. I
heard the petitioner and counsel for the respondent at the first hearing on 7
and 8 June 2007. The hearing took the form of a debate on the
competency and relevancy of the petition. Counsel for the respondent moved me to dismiss
the petition.
The facts
[4] The
basic material facts appear to be these. The petitioner is an Indian national. On 10
September 2002 he was granted a multi-visit entry clearance. He then applied for entry clearance as a
student, but his application was refused on 13 February 2003. His multi-visit visa expired on 10 March 2003. Thereafter he raised various proceedings
against the respondent in the English courts.
On 13 January 2004
he claimed asylum in person. On 9 June 2005 he was issued with a
work-permitted application registration card, his claim for asylum having been
outstanding for more than 12 months. He
was allowed to keep the work permission until the determination of his claim. His claim was refused on 23 August 2005, but that decision was withdrawn
on 8 February 2006
because it had been incorrectly served. On
2 August 2006, however, his
asylum claim and his human rights claim were refused and were also certified as
clearly unfounded in terms of section 94(2) of the Nationality, Immigration and
Asylum Act 2002. The petitioner
expressly stated at the hearing that he did not challenge the certificate of 2 August 2006. He appeared to suggest that it had been
invalidated by the service upon him of a form in the course of the
administrative removal procedure to which I am about to refer, but that
suggestion appears to me to be obviously unsound.
[5] According to the respondent, the
petitioner has a history of failing to comply with conditions as to residence
and reporting. On 23 September 2005 he was issued with a notice
of restriction requiring him to reside at a specified address and to report to
a particular office. On 25 October 2005 and 28 November 2005 he was issued
with notices warning him that he was liable to be detained because he had
failed to report as required. In August
2006 he raised actions against the respondent in Edinburgh
Sheriff Court which bore to be founded on the Data
Protection Act 1998 and the Human Rights Act 1998. In November 2006,
according to the respondent, the petitioner was evicted from an address in Edinburgh,
was detained by the police after refusing to leave the property, and appeared
in Edinburgh Sheriff Court
on 6 November 2006.
[6]
On 7 November 2006 the
petitioner was served with form IS151A, which was a notice informing him of his
immigration status. That was the first stage of the procedure for
his administrative removal from this country to India.
In view of his history of failing to
comply with conditions as to residence and reporting, he was considered to be
likely to abscond if released. The
respondent accordingly made a detention order pending his removal (no. 6/2 of
process). That is the order referred to
in the heading of the petition.
[7] The only obstacle to the removal of the petitioner at that
time was the absence of his passport or other travel document. According to the respondent, on 8 November 2006 an immigration
officer attended at St Leonard's
Police Station to complete an application for an emergency travel document in
order to facilitate the petitioner's removal to India,
but the petitioner refused to co-operate. An application was, however, completed. An emergency travel document may be issued by
the Indian High Commission if they are satisfied that the subject of the
application is an Indian national. The
respondent's officials intended to send the application and an expired passport
relative to the petitioner to the Indian High Commission, but they were sent in
error to the Bangladeshi High Commission. This mistake was narrated, and an error in the
transcription of the respondent's answers in the record was corrected, in an
amendment of the respondent's answers which was moved by the respondent's
counsel at the Bar. The petitioner
opposed the motion for leave to amend, but since he was unable to demonstrate
that he would be in any way prejudiced by the amendment, I allowed it. In any event, to complete the narration of the
material facts, the petitioner is no longer detained. He brought the present petition at the end of
December 2006, and on 11 January
2007 the respondent decided to grant him temporary admission
subject to restrictions as to his place of residence and his reporting at a
police station.
The orders sought
[8] The
petitioner seeks a total of 17 orders. They
are listed in statement 3 of the petition. The first is a declarator
that the respondent's decision to detain the petitioner "is prima facie
unlawful in terms of section 6(1) of [the Human Rights Act 1998] as being
incompatible with the petitioner's human rights" under articles 5.1 and 5.2 in
conjunction with article 14 of the European Convention on Human Rights. Of all the orders sought, this is the only one
which is potentially relevant to the petitioner's claim that he has been
wrongly detained. It is potentially associated with the tenth order sought,
which is an order for compensation under section 8(2) and (4) of the 1998 Act
and article 5.5 of the Convention. It is not, however, supported by relevant
averments, as will appear later.
[9] The
second order is for reduction of the decision of 7 November 2006. Since the petitioner is no longer detained,
such an order would be entirely academic.
[10] The
third is an order under section 8(1) of the 1998 Act requiring the respondent
to grant indefinite leave to remain. No
such order can be granted because in view of the certification of 2 August 2006 the petitioner has no
right to remain in this country at all. As
I shall explain, there are no relevant averments indicating that he has any
such right. In any event it would be
inappropriate, if not incompetent, for this Court in the exercise of its
supervisory jurisdiction to require a particular order to be made.
[11] The
fourth is "an interdict against the notice of removal directions and/or
proposed notice of removal directions" and interim interdict, pending declarator and reduction. Interim interdict was refused in hoc statu
by Lord Emslie on 12 January 2007. Before me the petitioner was unable to point
to any justification for interdict.
[12] The
fifth is an order for interim liberation: the petitioner's liberation, however, is no
longer a live issue.
[13] Sixth,
the petitioner asks for a declarator that a notice of
11 January 2007, the
effect of which was to grant him temporary admission when his detention came to
an end, is unlawful in terms of section 6 of the 1998 Act as being incompatible
with his human rights under article 3 of the Convention, and declarator ad interim.
This is incomprehensible: a grant of temporary admission can scarcely
amount to torture or to inhuman or degrading treatment or punishment. Nothing in the petitioner's pleadings or
submissions has elucidated or supported this claim.
[14] The
seventh is an order requiring the respondent to grant indefinite leave to
remain, and for an interim order. This
is merely an echo of the third.
[15] The
eighth is an order requiring the respondent to return the petitioner's
cancelled and valid passports, and an interim order. This is not a matter for the supervisory
jurisdiction of the Court. The same must
be said of the ninth order sought, which is one requiring the respondent to
return a library book
[16] Tenth,
as I have already noted, the petitioner seeks compensation. It is not impossible that such an order could
follow from a declarator as first sought if there
were relevant averments on the subject.
[17] Next
is a request for a further declarator, that a
statement made in court on the respondent's behalf on 13 February 2007 to the effect that the
petitioner's passport had been lost, is incompatible with his human rights
under articles 3 and 5.1. It is
impossible to see how such a statement could amount to torture or interference
with the petitioner's right to liberty.
[18] The
twelfth order sought is similar to the sixth, this time relative to a further
notice of temporary admission dated 21
March 2007.
[19] The
thirteenth and fourteenth claims are for declarators
that various notices served on the petitioner by the respondent are unlawful
under section 6 as being incompatible with his human rights under article 3 in
conjunction with article 14. The notices
are notices of temporary admission, notices of restriction and the like. Nothing in the petitioner's pleadings or
arguments has indicated that such notices amounted to torture or
discrimination.
[20] The fifteenth paragraph of statement 3 seeks declarator
that the respondent's decisions of 2
August 2006 (the refusal of the petitioner's claims and the
certificate that they were clearly unfounded) "have no legal validity as being
contrary to the decisions of 7 November
2006 and Chapter 11 of the Operational Enforcement Manual." The petitioner did not explain how the
decision to detain him on 7 November
2006 could invalidate the decisions of 2 August 2006, and it is impossible to see how it could
have done so. As to chapter 11 of the
Operational Enforcement Manual, it emerged in the course of the hearing that
the petitioner was founding on the fact that at the commencement of the
procedure for his removal he had been served with form IS151A, and was claiming
that instead he should have been served with form IS151D. The Manual makes it clear, however, that form
IS151D is to be served only "once removal has been set up", that is, once arrangements have been made with a carrier to remove
the person from this country. That had
not been done in the petitioner's case, and could not have been done because
the necessary travel document was not yet available.
[21] The
sixteenth claim is for declarator that the respondent's
monthly report dated 12 December 2006
"has no legal validity as being contrary to the decisions of 7 November 2006 and Chapter 11
of the Operational Enforcement Manual." I
have already dealt with the petitioner's point about the manual. The complaint about the report of 12 December 2006 (no. 6/14 of
process) is taken up in statement 5(29) on page 18 of the record, where it is
said that the respondent changed his previous reasons for detention which had
been given in the decision of 7 November
2006 (no. 6/2 of process). In
my view there is no substantial difference between the two documents. The later one refers to the petitioner's
having "previously failed or refused to leave the UK
when required to do so." While he may not have been "required" to do so, he
clearly should have done so, as he had no right to remain. There is nothing in this point.
[22] Finally,
the petitioner seeks an order upon the respondent to submit an application to
the Indian High Commission for a duplicate passport. The observations already made in relation to
the third claim apply equally here.
[23] Thus
the only remedies claimed which are even potentially relevant are those for declarator that the decision of 7 November 2006 was unlawful (the first) and the
claim for compensation (the tenth).
The petitioner's presentation of his case
[24] I
now make a few general observations on the petitioner's presentation of his
case. First, he apparently conceived it
to be necessary to set out in his pleadings a detailed narrative of what he
believed to be relevant events from the time of his original grant of entry
clearance in September 2002 until the present. He has accordingly included much unnecessary
material, and lodged many superfluous productions. Secondly, it became clear at the hearing that
he did not understand the formula, used by the respondent in his answers, that
various documents mentioned in the petitioner's pleadings were "referred to for
their terms". He mistakenly considered
that the respondent thereby admitted as accurate the construction which he, the
petitioner, placed upon the documents. Thirdly, he resorted to the intimation of
notices to admit, for which there is no provision in this procedure. In any event, although he seemed to attach
importance to them, they added nothing to his case. Finally, he attacked the respondent's case to
at least the same extent as he attempted to support his own, although it was
his own case that was under scrutiny. In
his pleadings and in his speeches at the first hearing he criticised the
respondent's pleadings on a variety of grounds, including alleged irrelevance
and the alleged misuse of general denials. He also referred to statements that had
allegedly been made in court on the respondent's behalf at earlier stages of
the case. But he did little to support
the relevancy of his own pleadings other than to go through them and point to
the documentary productions to which his averments referred. He made it clear that he disputed various
matters of fact averred in the respondent's answers, but he did not resolve the
various issues which I have mentioned in the above review of the orders he
seeks.
The petitioner's averments
[25] I
have observed above that the only remedies sought by the petitioner which are
potentially relevant are those for declarator that
the decision of 7 November 2006
was unlawful, and for compensation. In my opinion his claims for these remedies
are not supported by relevant averments.
[26] I do
not consider it necessary to embark on a line by line analysis of all the
petitioner's averments and to list all the many obscurities and non sequiturs. It will, I think, suffice to point out the
various misconceptions apparent in his pleadings and in his speeches at the
first hearing which vitiated his only potentially relevant claims, those for declarator that his detention was unlawful, and for
compensation. The earliest misconception
in point of time is that his original six-month entry clearance granted on 10
September 2002 ran for six months from the date when he chose to enter the
United Kingdom (see, for example, statement 5(16) at page 12). In fact it ran from the date of his arrival
until the end of the visa's remaining period of validity, that is, until 10 March 2003 (Immigration (Leave to
Enter and Remain) Order 2000 (S.I. 2000, No. 1161), art. 4(2)). A further early
misconception appears from a letter of 17
September 2003 written by the petitioner to the Immigration and
Nationality Directorate (no. 6/29 of process). In the letter he complains of breach of his
human rights, racial discrimination and persecution, not in India
or elsewhere abroad, but by the court service in England,
and of "feeling torture, inhuman and degrading treatment" as a result. He appears to consider that he should be
granted asylum because of persecution not in another country, but in this
country.
[27] The
petitioner also made frequent reference to sections 44(4), as amended, and 77(2)(b) of the Nationality, Immigration and Asylum Act 2002,
and to the fact that the original decision to refuse him asylum had been
withdrawn because it had not been served. He appeared to believe that in view of that
withdrawal, he should not have been subjected to various restrictions. But that has no relevance to any question
raised for determination in this petition. In any event the claim for asylum was
conclusively determined on 2 August
2006.
[28] The
petitioner also maintains, in statements 3(17) and 5(14), that the respondent
detained him by way of victimisation after he had raised two actions against
the respondent in Edinburgh Sheriff Court,
because the respondent "could not set up removal by virtue of the above two
court actions." No attempt was made,
either in averment or in argument, to demonstrate how the dependence of these
actions could have prevented the removal of the petitioner. He further asserts in statement 4(4) that
because he had brought these actions, the decision of 7 November 2006 was prima facie unlawful in
terms of section 2 of the Race Relations Act 1976. No attempt was made to justify or explain this
assertion. Further assertions of
discrimination and victimisation are made in statement 5(16). The first sentence of statement 5(17) appears
to suggest, quite erroneously, that the petitioner's claim for asylum is in
dependence in Edinburgh Sheriff Court.
[29] In
statement 5(18) it is said that one of the reasons for detention given in the
order of 7 November 2006
was "based on a completely wrong assessment of the facts, which are again
completely false." It seems abundantly
clear, however, that the respondent was well entitled to make the order in view
of the petitioner's history of failures to report. The reasons given in statement 5(19) for
saying that he has close ties provide no grounds for any view that he would be
likely to stay in one place. The
assertion in statement 5(20) that the decision of 7 November 2006 is not an immigration decision is
simply incomprehensible. In statement
5(22) the criticism of the respondent's averments in his answers is merely
inept: the Data Protection Act 1998 does
not affect the respondent's obligation to make candid averments in his
pleadings: see section 10(2)(a) and Schedule 2, paragraph 3. The averments about his passport in statement
5(23) are irrelevant to the question whether he was unlawfully detained. In statement 5(28) an alleged concession on
behalf of the respondent made on 8 February 2007 that the petitioner's
removal was not imminent cannot found any inference that he had continued to be
detained after it had become obvious that his removal within a reasonable time
would not be possible. In statement 5(35) there is no specification of the allegation that
the respondent released the petitioner on 11 January 2007 "because he detained the petitioner arbitrarily." Statement 5(39) is in my opinion entirely
obscure.
[30] Statement
5(40) sets out the petitioner's claim for compensation. It is not supported by relevant averments of
unlawful detention. It also seeks
compensation at the rate of ฃ20,000 per day from 7 November 2006, the date
of the allegedly unlawful decision, "until he gets a new passport in place of
his valid passport lost by the respondent": in other words, his claim includes
compensation for a period after which his detention had come to an end, and is
to that extent irrelevant for that reason also.
[31] Statement
6 of the petition is said to contain "the legal argument with reference to
enactments on which it is intended to rely." It runs to 38 sub-paragraphs. It is necessary to notice only those averments
which could conceivably have a bearing on the petitioner's claims for declarator and compensation. I therefore ignore the many complaints about
the respondent's actings since 2003, including the
way in which the present proceedings have been conducted on his behalf. I also ignore the many assertions of
discrimination, victimisation and psychological torture. Statement 6(23) misquotes article 5.1(f) of
the Convention. Article 5.1 states that
no one shall be deprived of his liberty save in specified cases and in
accordance with a procedure prescribed by law. Case (f) relates to the lawful detention "of a
person against whom action is being taken with a view to deportation or
extradition." The petitioner's point was
that the process of administrative removal which was being taken in his case
was not deportation. The matter was not
developed in argument. It appears to me
that "deportation" is to be understood as meaning the act of removing a person
to another country, and thus as including administrative removal. In statement 6(33) it is incorrect for the
petitioner to say that there is no dispute as to why he spent more than two
months in detention.
[32] I
consider that the only averments in the petition which could conceivably be
relevant to the petitioner's claim that he was unlawfully detained are his
assertions that he had never failed to comply with the conditions of his stay
(statement 5(20)), and that he has never absconded or escaped (statement
5(21)). The former assertion depends on
the unsustainable proposition that the leave to enter which he believes he was
given on 17 February 2003
remains valid. The latter appears to
depend on the equally insupportable proposition that the various restrictions
placed upon him as to residence and reporting were invalid.
[33] It
is not impossible that the petitioner is attempting to say that the respondent
should not have detained him unless the process of administrative removal could
have been completed within a reasonable time. That the respondent had a duty to secure the
petitioner's removal promptly appears from R
v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704. There are no averments, however, which state,
or from which it may be inferred, that the respondent failed in that duty. There is nothing to indicate that it was or
should have been apparent to the respondent on 7 November 2006 that he would not be able to secure
the petitioner's removal within a reasonable period. Nor are there any averments of any
circumstances arising thereafter from which it was or should have been apparent
to the respondent before 11 January
2007, the date when the petitioner was released, that he would not
be able to do so.
The petitioner's submissions
[34] Many
of the petitioner's oral submissions were based on the misunderstandings
relative to the law which I have already identified. In particular, he attached weight to the
withdrawal on 8 February 2006
of the incorrectly served refusal of his claim, which he appeared to think
extended to the various restrictions imposed upon him. He also placed emphasis on article 5 of the
Convention. He said he had been entitled
under article 5.2 to be informed of the reasons for his detention. Those reasons were given, however, in the
notice no. 6/2 of process dated 7 November 2006, which states
the reasons on the second page. He also
claimed that the procedure had not been "prescribed by law" as required by
article 5.1, and he founded on the service of form IS151A instead of form
IS151D, to which I have already referred. Whatever form was served, however, its service
could not affect the lawfulness of his detention on 7 November 2006. He further claimed that a decision to remove
him could have been taken at any time after the expiry of his multi-visit visa,
but that consideration cannot render unlawful the decision of 7 November 2006. He referred to pages of information about
passport services which appear on the website of the High Commission of India
in London (no. 6/54 of process), but his reliance on that information only
indicated that he disputed the respondent's averments of fact as to how
emergency travel documents may be obtained. He referred to section 57(2) of the Scotland
Act 1998, but that applies to members of the Scottish Executive, not to the
respondent. The petitioner's references
to R v H M Advocate 2003 SC (PC) 21, D
B, Petitioner [2007] CSOH 73 and X Y v The Scottish Ministers [2007] CSIH 45
were accordingly inept. He referred to a
decision by an Immigration Judge on 30 November
2006 to refuse his application for bail (no. 6/39 of process) and
to the relative bail summary (no. 6/38 of process). The information adverse to him in the summary,
and the view of the Immigration Judge that his removal could be achieved within
a reasonable time, do not appear to me to assist him. He also referred to East African Asians v United
Kingdom (1973) 3 EHRR 76 and to Amuur v France (1996) 22 EHRR 533, but the
situations there considered were very different from those in the present case.
Result
[35] I am satisfied, accordingly, that the
averments in the petition are irrelevant. I shall therefore dismiss the petition and
reserve all questions of expenses.
