AAS v Secretary of State for the Home Department [Court of Session Inner House Extra Division]
| Jurisdiction | Scotland |
| Judgment Date | 12 February 2010 |
| Docket Number | No 26 |
| Date | 12 February 2010 |
| Court | Court of Session (Inner House - Extra Division) |
Court of Session Inner House Extra Division
Lord Osborne, Lord Clarke, Lady Dorrian
Judicial review - Immigration - Detention pending deportation - Whether proportionate - Relevance of refusal to return voluntarily - Immigration Act 1971 (cap 77), sec 5(1), sch 3, para 2(3)
Paragraph 2(3) of sch 3 to the Immigration Act 1971 (cap 77) provides, "Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless [he is released on bail or] the Secretary of State directs otherwise)."
AAS, who was a citizen of Zimbabwe, entered the United Kingdom on 11 April 2001. He was granted leave to enter as a visitor for a period of six months. Thereafter, he remained in the United Kingdom. In 2007, he claimed political asylum. That claim was refused. Between 2004 and 2007, he was convicted of various criminal offences. He was sentenced to periods of imprisonment in respect of some of these offences. On 10 April 2008, a decision was made to make a deportation order and on 14 April 2008, AAS was detained. All appeal rights against that decision were exhausted. On 12 September 2008, a deportation order was made and served. Thereafter, he made three applications for bail, all of which were refused. In November 2009, he applied to be returned to Zimbabwe voluntarily, but because his passport had been lost, he was unable to travel on the scheduled date. He later decided that he was no longer willing to return to Zimbabwe voluntarily. He brought a petition for judicial review of the respondent's decision to detain him and continue to detain him. The petition was refused by the Lord Ordinary and AAS reclaimed.
It was argued for the reclaimer that the Lord Ordinary had erred in holding that his refusal to return to Zimbabwe voluntarily was a relevant or key factor. He had attached too great importance to that factor. An impasse had developed as the respondent had adopted a policy of not deporting persons to Zimbabwe for political reasons.
It was argued for the respondent that other considerations had been considered relevant by the Lord Ordinary including the risk of the reclaimer absconding and the risk of further offending behaviour were he at liberty. These findings were unchallenged. These were important considerations in association with a refusal to accept voluntary return.
Held that: (1) determination of when detention might become disproportionate to the reasons for it must be the subject of judgment and decision by the court in the light of all of the relevant factors placed before it in any particular case (para 16); (2) in this case, the risk of absconding and re-offending together with the reclaimer's attitude to voluntary return meant that the detention had not yet reached a stage at which it had become disproportionate (paras 17-20); and reclaiming motion refused.
AAS was detained on 14 April 2008 following a decision by the Secretary of State for the Home Department to make a deportation order. He raised a petition for judicial review of the Secretary of State's decision to detain him and continue to detain him. On 5 June 2009, the Lord Ordinary (Malcolm), refused the petition. AAS reclaimed.
Cases referred to:
KM v Secretary of State for the Home Department [2010] CSOH 8
P v Advocate General for Scotland [2009] CSOH 121; 2009 GWD 29-461
R v Governor, Durham Prison, ex p Singh sub nom R v Secretary of State for the Home Department, ex p SinghWLRUNK [1984] 1 WLR 704; [1984] 1 All ER 983; [1983] Imm AR 198
R (on the application of A) v Secretary of State for the Home DepartmentUNK [2007] EWCA Civ 804; [2007] ACD 93
R (on the application of I) v Secretary of State for the Home DepartmentUNK [2002] EWCA Civ 888; [2003] INLR 196
Tawonezwi v Secretary of State for the Home DepartmentUNK [2008] EWCA Civ 924
The case called before an Extra Division, comprising Lord Osborne, Lord Clarke and Lady Dorrian, for a hearing on the summar roll, on 26 January 2010.
At advising, on 12 February 2010, the opinion of the Court was delivered by Lord Osborne-
Opinion of the Court-
[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 six 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 six 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 motorvehicle with excess alcohol, driving while disqualified, using a motorvehicle 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 six 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 motorvehicle 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 overstayed. He was served with...
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