In The Petition Of B.n. For Judicial Review Of Decision Fo The Home Department To Detain The Petitioner
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Neutral Citation | [2012] CSOH 16 |
| Year | 2012 |
| Published date | 24 January 2012 |
| Date | 02 December 2011 |
| Court | Court of Session |
| Docket Number | P48/10 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 16 | |
| P48/10 | OPINION OF LORD BRAILSFORD in the Petition BN Petitioner; For Judicial Review of decisions of the Secretary of State for the Home Department to detain the Petitioner ________________ |
Petitioner: Caskie; Drummond Miller
Respondent: Webster; Office of the Advocate General
2 December 2011
[1] The petitioner seeks Judicial Review of decisions by the Secretary of State for the Home Department to detain him. The Advocate General has appeared as respondent. The case called before me for a First Hearing on 25 November 2011. On that date counsel for the petitioner invited me to uphold his first, second and third pleas-in-law and reduce the decisions complained of. Counsel for the respondent invited me to uphold his first plea-in-law and dismiss the petition.
[2] The petitioner's submission was that the issues between the parties were matters of law. The respondent submitted that, whilst an issue of law undoubtedly underlay the matters in dispute, the factual background to these matters was of relevance and required to be considered. I agreed with the submission of the respondent in this regard. There was no material dispute between the parties as to that relevant factual background. An outline of that factual background is set forth in paragraph 5 of the petition. That material was supplemented by information in a document entitled "Bail Summary" which emanates from the UK Border Agency and comprises part of 6/1 of process. The terms of this document, and its underlying factual accuracy, were not in dispute. It is necessary that I give some indication of the factual background in order to give the views I will express in this opinion a meaningful context.
[3] The petitioner arrived illegally in the United Kingdom from France on 12 March 2003. He was found concealed inside a lorry. He was removed to France on 8 October 2003. On 13 November 2003 he returned illegally to the United Kingdom, again concealed in the back of a lorry. He has remained in the United Kingdom since that date. During the period since that date he has failed on a number of occasions to comply with the conditions of his residence imposed by the Secretary of State. During his period in the United Kingdom he has been convicted of a number of criminal offences. On 8 December 2004 he was convicted at Coventry District Magistrates Court of resisting arrest and obstructing a constable. He was sentenced to 20 days imprisonment. On 11 May 2005 he was convicted of affray at Coventry District Court and sentenced to 18 months imprisonment and the forfeiture of a knife. On 5 September 2006 he was convicted of failing to surrender to custody at an appointed time at Coventry District Magistrates Court and was fined. On 24 April 2007 he was convicted at Coventry District Magistrates Court of driving whilst disqualified and received a community order with an unpaid work requirement. On the same date he was also convicted of driving a vehicle whilst uninsured. On 11 March 2008 he was convicted at Coventry District Magistrates Court of disorderly behaviour and using threatening and abusive words likely to cause harassment and was fined. On 3 April 2008 he was convicted at Coventry Crown Court of one count of burglary with intent to steal and two counts of burglary and theft. He was sentenced to 21 months imprisonment on each of these charges. Against the foregoing background of offending the UK Border Agency concluded, and proceeded upon the basis, that the petitioner was a person upon whom no reliance should be placed of complying with any conditions of release. It followed that upon his release from imprisonment following the said convictions in 2008 he was remanded and detained. He was released from such detention on 12 March 2010 following a First Hearing in this court on 5 March 2010 in the present proceedings. On 1 May 2010 he was charged with a further offence of burglary and, as a consequence thereof, was detained by the Secretary of State on 28 May 2010. He was convicted of the said offence on 13 August 2010 and sentenced to 7 weeks imprisonment. He has remained in custody since 28 May 2010. The total period the petitioner has been in custody pending deportation reached 18 months on or about 1 November 2010.
[4] Against that factual background the petitioner's submission was that his detention having exceeded 18 months it had become unlawful and he should consequently be released pending deportation. The Secretary of State's actions in continuing to detain the petitioner pending deportation were said to be unlawful by reason of contravention of European Customary Law et separatim breach of Article 5 of the European Convention on Human Rights.
[5] The relevant law underlying this dispute is set forth in section 5 of the Immigration Act 1971. That section provides that the provisions of Schedule 3 to that Act are to have effect with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and with respect to the detention or control of persons in connection with deportation. Schedule 3, paragraph 2(3) 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) and (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)."
The application of that provision has been authoritatively considered by Woolf J in R v Governor of Durham Prison ex parte Hardial Singh 1984 1 WLR 704 at 706 as follows:
"Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend on the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention."
That formulation of the law has been accepted in Scotland in AM, Petitioner [2010] CSOH 111. On the basis of this authority it is patently clear that the right of the Secretary of State to detain a person pending deportation is not unfettered. The intended deportee may only be detained for a period that is reasonable having regard to all the circumstances of the case. Moreover if, before the expiry of such reasonable period, it becomes apparent to the Secretary of State that he will not be able to affect deportation within a reasonable time then he should not seek to exercise the power of detention. The Secretary of State must, further, act with reasonable diligence and expedition to effect removal. These constraints imposed upon the Secretary of State as a matter of law appear to me to be relevant, sensible and consistent with principles of substantive justice. Clearly they would operate in the present case. In this regard I was informed that the detention of the petitioner is reviewed on a monthly basis. I was provided with a copy of the most recent "Detention Review" relevant to the petitioner and dated 21 October 2011 (number 7/31 of process). This was a relatively full document running to some five pages examination of which showed that the petitioner's case was considered by a responsible official who had regard to all the circumstances of his continued detention. The document indicated that a subsequent review was due on 18 November 2011. That review would, presumably, have taken place by the date of the hearing before me. I was however informed that the written review report was not to hand at the date of the hearing.
[6] It is apparent from the foregoing that as a matter of UK domestic law protection of an individual in...
To continue reading
Request your trial
-
Petition Of Rasul Nabi Aka Rasul Nabi Rasul For Judicial Review
...[31]). He acknowledged that there was Outer House authority against him: these arguments had not found favour in B.N. Petitioner, [2012] CSOH 16 (paragraphs [16]-[17]) or in S v Secretary of State for the Home Department 2011 SLT 297 (paragraphs [39]-[41]), or before the Lord Ordinary in Mb......