Fatima Helow Petitioner (1) The Advocate General for Scotland and (2) The Lord Advocate Respondents
| Jurisdiction | Scotland |
| Judge | Lord Nimmo Smith,Lord Kirkwood,Lord Kingarth |
| Neutral Citation | [2007] CSIH 5,[2007] CSIH 65 |
| Date | 16 January 2007 |
| Docket Number | P2135/05 |
| Published date | 16 January 2007 |
| Year | 2007 |
| Court | Court of Session (Inner House) |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Nimmo Smith Lord Kingarth Lord Kirkwood | [2007] CSIH 5 P2135/05 OPINION OF THE COURT delivered by LORD NIMMO SMITH in PETITION of FATIMA HELOW Petitioner; to the nobile officium of the Court of Session and ANSWERS for (1) THE ADVOCATE GENERAL FOR SCOTLAND and (2) THE LORD ADVOCATE Respondents: _______ |
Act: O'Neill, Q.C., Blair; Drummond Miller (Petitioner)
Alt: Tyre, Q.C., Carmichael; Office of the Solicitors to the Advocate General (Respondent - Advocate General): Moynihan, Q.C.; Office of the Solicitors to the Scottish Executive (Respondent - Lord Advocate)
16 January 2007
Introduction
[1] This an application to the nobile officium of this court, in the exercise of its supervisory jurisdiction, to set aside an interlocutor of Lady Cosgrove ("the judge") dated 24 November 2004, refusing an application by the petitioner for statutory review under section 101 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). It is alleged that the interlocutor was vitiated by apparent bias and want of objective impartiality on the part of the judge. Answers have been lodged on behalf of, first, the Advocate General for Scotland, as representing the Secretary of State for the Home Department and, second, the Lord Advocate as a Scottish Minister with responsibility for the administration of the courts in Scotland and also as representing the public interest. Each member of the court has contributed to this Opinion.
[2] The nobile officium is a jurisdiction which, in a civil case, may only be exercised by the Inner House of the Court of Session. It is
"the power of the Court of Session to create and exercise a remedy or grant relief in circumstances in which there is no statutory or common law provision which provides such a remedy or relief, but where the remedy or relief is obviously necessary and not contrary to the existing law":
Stair Memorial Encyclopaedia, volume 4, paragraph 4, s.v. "Civil Jurisdiction". As Lord Hope of Craighead said in Davidson v Scottish Ministers (No. 2) 2005 SC (HL) 7 at paragraph [64]:
"The general rule is that the power may be exercised in exceptional or unforeseen circumstances to provide a remedy which will prevent the oppression and injustice which would otherwise result from the lack of any other remedy."
The judicial oath
[3] The judge was, on 24 November 2004, a Senator of the College of Justice, that is to say, a judge of the Court of Session and the High Court of Justiciary. All Senators are, on appointment, installed at a sitting of the Full Bench, in a short but impressive public ceremony, at which emphasis is placed on all the essential features of the office upon which they are entering. As part of the ceremony, the Lord President of the Court of Session administers two oaths, to which each new Senator assents, and in addition signs the parchments which are used on such occasions. (In the expression "oath" we include affirmation, for those who prefer to affirm: see the Oaths Act 1978, section 5(1).) The first is the oath of allegiance to Her Majesty Queen Elizabeth, her heirs and successors according to law. The second is the judicial oath, which is in these terms:
"You swear that you will well and truly serve Her Majesty Queen Elizabeth in the office of Senator of the College of Justice, and that you will do right to all manner of people after the laws and usages of this realm without fear or favour, affection or ill-will. So help you God."
The statutory provisions
[4] The statutory provisions in force at the time of the judge's interlocutor were contained in the 2002 Act, and so far as relevant were in these terms:
"82 Right of appeal: general
(1) Where an immigration decision is made in respect of a person he
may appeal to an adjudicator.
(2) In this Part 'immigration decision' means-
...
(h) a decision that an illegal entrant is to be removed from the United
Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal)...
84 Grounds of appeal
(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds-
...
(c) that the decision is unlawful under section 6 of the Human Rights
Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;
...
(g) that removal of the appellant from the United Kingdom in
consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights ...
101 Appeal to Tribunal
(1) A party to an appeal to an adjudicator under section 82 ... may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law.
(2) A party to an application to the Tribunal for permission to appeal under subsection (1) may apply ... to the Court of Session for a review of the Tribunal's decision on the ground that the Tribunal made an error of law.
(3) Where an application is made under subsection (2)-
(a) it shall be determined by a single judge by reference only to written
submissions,
(b) the judge may affirm or reverse the Tribunal's decision,
(c) the judge's decision shall be final ...
102 Decision
(1) On an appeal under section 101 the Immigration Appeal Tribunal may-
(a) affirm the adjudicator's decision;
(b) make any decision which the adjudicator could have made;
(c) remit the appeal to an adjudicator;
(4) In remitting an appeal to an adjudicator under subsection (1)(c) the Tribunal may, in particular-
(a) require the adjudicator to determine the appeal in accordance with
directions of the Tribunal;
(b) require the adjudicator to take additional evidence with a view to the
appeal being determined by the Tribunal.
103 Appeal from Tribunal
(1) Where the Immigration Appeal Tribunal determines an appeal under section
101 a party to the appeal may bring a further appeal on a point of law-
(a) where the original decision of the adjudicator was made in Scotland,
to the Court of Session ...
(2) An appeal under this section may be brought only with the permission of-
(a) the Tribunal, or
(b) if the Tribunal refuses permission, the court referred to in subsection
(1)(a) ...
(3) The remittal of an appeal to an adjudicator under section 102(1)(c) is not a determination of the appeal for the purposes of subsection (1) above."
[5] It should be noted that by section 26(5)(a) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, sections 100 to 103 of the 2002 Act no longer have effect. By article 7 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005 (SI 2005/565), however, an application to the Court of Session under section 101(2) of the 2002 Act which was pending immediately before commencement of the relevant provisions of the 2004 Act is to continue after commencement as if that section had not been repealed. The result, for present purposes, is that if the judge's interlocutor were to be set aside by us, the petitioner's application would still be pending and available for consideration by another judge of the Court of Session, who would in that event have the powers provided by article 7(3) of the 2005 Order, which include power to order the Asylum and Immigration Tribunal (which has replaced the Immigration Appeal Tribunal) to reconsider the adjudicator's decision on the appeal.
The facts averred by the petitioner:
(1) The background
[6] The following narrative is derived from the averments in the petition. Except in respect of procedural matters these averments are not admitted by either respondent. We do not need to decide whether or not they are true: it is sufficient for us to treat them pro veritate at this stage.
[7] The petitioner has claimed asylum in the United Kingdom in terms of the Geneva Convention Relating to the Status of Refugees 1951 as applied in terms of the New York Protocol of 1967. Her claim for asylum and her claim for protection in terms of Article 3 of the European Convention on Human Rights and Fundamental Freedoms 1950 ("ECHR") was refused by the Secretary of State by letter of 11 September 2003.
[8] It is averred that the background to the claim of the petitioner for asylum and ECHR protection is as follows. The petitioner is of Palestinian ethnicity. Her family were supporters of the Palestinian Liberation Organisation ("PLO"). She lived in the Sabra/Shatila refugee camp for Palestinian refugees located in the southern outskirts of West Beirut, Lebanon. In June 1982 Israeli forces invaded Lebanon seeking to expel the PLO and in late August 1982 the PLO agreed to leave Lebanon under international supervision. Israel agreed not to advance further into Beirut and to guarantee the security of Palestinian civilians left behind in the refugee camps, including in Sabra/Shatila. In September 1982 the Israeli forces entered and occupied the predominantly Muslim West Beirut and were deployed around the Sabra/Shatila camp. Ariel Sharon was then Israel's Minister of Defence and had overall responsibility for the conduct of the Israeli Defence Force in southern Lebanon. In this capacity, Ariel Sharon invited Lebanese Phalangist militia units - allied to and trained and equipped by Israel - to enter the Sabra and Shatila camps so as to "clean out the [remaining PLO] terrorists". Israeli soldiers surrounded and controlled the perimeters of the refugee camp and were instructed to provide logistical support to the Phalangists who would enter the camps, find the PLO fighters and hand them over to Israeli forces. The instructions to the Phalangists emphasised that the Israeli military was in...
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