A.a.s. For Judicial Review Of A Decision Of The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Clarke,Lord Osborne |
| Neutral Citation | [2010] CSIH 10 |
| Date | 12 February 2010 |
| Docket Number | P329/09 |
| Court | Court of Session |
| Published date | 12 February 2010 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Clarke Lady Dorrian | [2010] CSIH 10 P329/09 OPINION OF THE COURT delivered by LORD OSBORNE in the Reclaiming Motion by A.A.S Petitioner and Reclaimer; For Judicial Review of a decision of THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent; _______ |
Alt: Lindsay; Solicitor to the Advocate General for Scotland
12 February 2010
The background circumstances
[1] The reclaimer is a citizen of Zimbabwe, who was born on 9 February 1982. On 11 April 2001 he arrived in the United Kingdom using his own Zimbabwean passport, when he was granted leave to enter as a visitor for a period of 6 months. On 16 August 2001 a stamp was endorsed on the reclaimer's passport purporting to show an extension of leave to remain in the United Kingdom granted until 30 September 2003, which has been proved to be counterfeit. On 2 April 2004 the reclaimer appeared at Luton and South Bedfordshire Magistrates Court for possession of a Class B controlled drug, namely cannabis, and for failing to surrender to custody. He was given a conditional discharge of 6 months. On 10 November 2004 a stamp was endorsed on the reclaimer's passport purporting to show an extension of leave to remain granted until 12 December 2005, which has been proved to be counterfeit. On 24 December 2004 the reclaimer was convicted at Luton and South Bedfordshire Magistrates Court of driving a motor vehicle with excess alcohol, driving while disqualified, using a motor vehicle while uninsured, failing to surrender to custody at an appointed time and breaching his conditional discharge. On 1 February 2006 he was convicted of two counts of assaulting a police constable and possession of cannabis and was sentenced to a total of 6 months imprisonment. On 8 February 2006 he appeared at Luton and South Bedfordshire Magistrates Court in respect of counts of driving while disqualified and using a motor vehicle while uninsured. On 16 May 2006 a stamp was endorsed on the reclaimer's passport purporting to show a grant of leave to remain with no time limit, which has been proved to be counterfeit. On 13 May 2007 the reclaimer was arrested for driving dangerously and attempting to resist arrest. After his arrest he stated that he had arrived in the United Kingdom in May 2001 and had over-stayed. He was served with over-stayer papers, whereupon he claimed political asylum. On 23 July 2007 his claim for asylum was finally refused, against which no appeal has been lodged. On 2 November 2007 the reclaimer was convicted at Wolverhampton Magistrates Court of dangerous driving, driving with excess alcohol and three further counts of motoring offences, when he was sentenced to 9 months imprisonment.
[2] On 11 January 2008 a notice of liability to deportation was issued. On 10 April 2008 a decision to make a deportation order was made and on 14 April 2008 the reclaimer was in fact detained. On 18 April 2008 a notice of the decision to make a deportation order was served on the reclaimer. On 28 April 2008 the reclaimer lodged an appeal against the decision to make a deportation order against him, which was refused on 12 June 2008. On 20 June 2008 a reconsideration was sought against the decision to make a deportation order against the reclaimer, but on 4 July 2008 that application was dismissed. On 16 July 2008 all appeal rights against the decision to make a deportation order against him were exhausted. On 12 September 2008, in terms of section 5(1) of the Immigration Act 1971, a deportation order was made and served upon the reclaimer, who, of course, was then in detention. On 7 October 2008 the reclaimer submitted an application for bail, but on 10 October 2008, bail was refused. A further bail application was made on 20 November 2008, but refused on 21 November 2008. A further application for bail was made on 26 March 2009, but that was refused on 30 March 2009.
[3] The reclaimer made an application to be returned voluntarily to Zimbabwe on 19 November 2009, under the Facilitated Return Scheme. His application was accepted, following which arrangements were made for him to board a flight to Zimbabwe on 10 December 2009. However, unfortunately his passport had been misplaced in the offices of the respondent, with the result that he was unable to travel. Subsequently an application was made to the Zimbabwe High Commission Office for an emergency travel document, but hitherto such a document has not been made available. More recently the reclaimer has equivocated concerning voluntary return to Zimbabwe and we were informed that currently the reclaimer is unwilling to return voluntarily to that state.
[4] Against the foregoing background the reclaimer brought a petition for Judicial Review of the respondent's decision to detain him and to continue to detain him. He seeks declarator that that decision is unlawful and irrational and reduction of it, as well as certain other remedies. The petition came before the Lord Ordinary on 5 June 2009 when he sustained the second plea-in-law for the respondent and refused the petition. The second plea-in-law was to the effect that the decisions complained of were lawful and reasonable. The Note by the Lord Ordinary setting forth his reasons for that decision is available to us. The reclaimer has now reclaimed against the Lord Ordinary's interlocutor of 5 June 2009.
Submissions for the reclaimer
[5] Counsel for the reclaimer moved us to sustain pleas-in-law 3 and 4 in the petition and to allow the appeal. If that were done, the result would be a reduction of the respondent's decision to detain and continue to detain the reclaimer; and his release from detention. Counsel said that the issue raised in the reclaiming motion was whether the Lord Ordinary had erred in holding that the reclaimer's refusal to return Zimbabwe voluntarily was a relevant or a key factor, having regard to the circumstances. It was submitted that he had erred in that respect. Counsel relied on Regina v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 W.L.R. 704, particularly the observations of Woolf J., as he then was, at page 706. The respondent's power to detain was derived from section 5 of and Schedule 3 to the Immigration Act 1971. Paragraph 2(3) of the Schedule authorised detention pending the removal of the subject of a deportation order from the United Kingdom. However that power was circumscribed, as explained by Woolf J.
[6] Counsel also relied on R (I) v Secretary of State for the Home Department [2003] I.N.L.R 196, a decision of the Court of Appeal. The relevance of voluntary return, or, more particularly, a refusal to accept voluntary return, had been considered in that case. Reference was made to the observations of Simon Brown L.J., as he then was, in paragraphs 30-32, 36, 37 and 41, those of Mummery L.J. at paragraph 41, and those of Dyson L.J. in paragraphs 46-56. Counsel submitted that the offer of voluntary repatriation was not in itself a relevant factor, but refusal to accept voluntary return might be considered along with other circumstances. The Lord Ordinary had attributed too great importance to that matter in paragraph 6 of his Note. It was recognised that other factors which he had taken into account were the risk of the reclaimer absconding, were he to be at liberty, and the risk of his re-offending in that situation. Counsel accepted that there was available extensive evidence of law-breaking by the reclaimer when he was at liberty. What had come about in the present case was that an impasse had developed to which there was no apparent end, since it was understood that the respondent currently operated a policy of not deporting persons to Zimbabwe for political reasons.
Submissions for the respondent
[7] Counsel for the respondent moved the court to refuse the reclaiming motion because the Lord Ordinary's decision disclosed no error of law. If the court were minded to grant the reclaiming motion, it would be appropriate for a further hearing to be held relating to the conditions on which the reclaimer should be released.
[8] Counsel drew our attention to the Lord Ordinary's observations in paragraph 6 of his Note. It was clear that he had accepted that there was a risk of the reclaimer absconding, were he to be at liberty, and also a risk of further offending behaviour in that situation. These were relevant considerations. In Regina v Governor of Durham...
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