Gurjit Singh For Judicial Review Of A Determination Of (i) A Special Adjudicator For (ii) The Immigration Appeal Tribunal V.
| Jurisdiction | Scotland |
| Judge | Lord Nimmo Smith |
| Date | 14 March 2000 |
| Docket Number | P2/14C |
| Court | Court of Session |
| Published date | 14 March 2000 |
| OUTER HOUSE, COURT OF SESSION | |
| P2/14C/1999
| OPINION OF LORD NIMMO SMITH in Petition of GURJIT SINGH (AP) Petitioner; for JUDICIAL REVIEW OF A DETERMINATION OF (i) A SPECIAL ADJUDICATOR AND (ii) THE IMMIGRATION APPEAL TRIBUNAL ________________ |
Petitioner: Sutherland; Lindsays, W.S. (for Gray & Co., Glasgow)
Respondent: O'Neill, Q.C.; R Henderson, Solicitor for Advocate General
14 March 2000
[1]This is an application for judicial review of a determination of a Special Adjudicator and a determination of the Immigration Appeal Tribunal. The respondent is the Secretary of State for the Home Department, on whose behalf answers have been lodged. The case originally called before me for a first hearing on 3 February 2000, but on that date, after discussion about the procedure to be followed, I continued the first hearing so as to allow those acting for the petitioner to investigate and answer certain averments for the respondent which had only recently been added by adjustment to the answers. After sundry procedure a continued first hearing took place before me on 1 March 2000. By that time there had been further adjustment to both the petition and answers and various productions had been lodged. It was agreed that I should hear submissions at this stage directed only to the first and second pleas in law for the respondent, which are in these terms:
"(1)The petitioner having unreasonably and unduly delayed in raising the present proceedings, the petition should be dismissed.
(2)In any event, the petitioner being barred by reason of mora, taciturnity and acquiescence from challenging the decisions of either the Special Adjudicator or the Immigration Appeal Tribunal, the petition should be dismissed on those grounds."
It was agreed that if I did not sustain either of these pleas at this stage there would require to be a further continued first hearing to enable the merits of the application to be discussed, but that at this stage I should assume that the petitioner has a good case.
[2]I propose now to set out the history of events, so far as relevant for present purposes, which I derive from the pleadings, the productions and the submissions of counsel. The petitioner is a citizen of India and was born on 6 January 1975. He entered the United Kingdom illegally on 11 September 1995. On 13 September 1995 the Community Advice Bureau of Southall, Middlesex ("the CAB") acting as agents on his behalf made an application for asylum in the United Kingdom. On 7 February 1996 the petitioner was interviewed in connection with his asylum application with the assistance of a translator. On 8 February 1996 he was served with notice form IS151A informing him that he was an illegal entrant as defined by section 33(1) of the Immigration Act 1971. On 14 March 1996 the respondent refused the petitioner's application for asylum on the basis that the petitioner had failed to demonstrate a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion should he be returned to India. On 20 March 1996 the petitioner was served with notice form IS151B informing him that following the refusal of his asylum application directions had been given for his removal from the United Kingdom as an illegal entrant. The notice advised the petitioner that he was entitled to appeal to the independent appeal authorities against these directions on the grounds that such removal would be contrary to the United Kingdom's obligations under the 1951 United Nations Convention relating to the status of refugees. The petitioner appealed against the decision to refuse his application for asylum. His appeal was received on 10 April 1996. A date was fixed for the appeal to be heard on 22 May 1997. According to the petitioner, before the date of the hearing he contacted the CAB, who were continuing to act as his agents, and told them that he was ill and would be unable to attend the hearing. The CAB told him that they would attempt to sort things out for him. He subsequently telephoned the CAB again and was told that they had not heard anything yet, but when they did they would be in touch. A request for an adjournment of the appeal hearing before the Special Adjudicator was made on 21 May 1997, and was refused.
[3]The appeal was heard by the Special Adjudicator on 22 May 1997, although neither the petitioner nor his representatives attended at the hearing and the Special Adjudicator dealt with it in his absence on the basis of the paperwork which had been submitted, as it was open to him to do under the Asylum Appeals (Procedure) Rules 1996. By a decision promulgated on 26 June 1997 the Special Adjudicator dismissed the appeal. Copies of the determination were sent to the CAB as agents for the petitioner. On 27 June 1997 the CAB wrote to the petitioner with a copy of the letter intimating the determination, and asking him to contact them regarding the matter. The CAB's letter was addressed to the petitioner at 15 Willowbank Street, Glasgow G3 6LY, which was the address given by him to the CAB. The letter was returned without being received by the petitioner. On it someone had written that no one by the petitioner's name lived at that address, and the Royal Mail had added a sticker indicating that the address was incomplete. Notwithstanding this, the CAB applied to the Immigration Appeal Tribunal on behalf of the petitioner for leave to appeal against the determination of the Special Adjudicator. The relative notice was dated 4 July 1997. By determination dated 11 July 1997 and notified on 24 July 1997 the Vice President of the Immigration Appeal Tribunal refused leave to appeal. By letter dated 28 July 1997 the CAB wrote to the petitioner, at the same address as previously, enclosing a copy of the letter intimating the Vice President's decision, and asking him to contact them regarding the matter. The letter was returned indicating that the addressee was unknown with a sticker by the Royal Mail.
[4]On 2 September 1997 immigration officials in Glasgow attempted to find the petitioner at 15 Willowbank Street, but were unable to do so, and thereafter the petitioner was treated as having absconded. He came to the notice of immigration officials after he had been arrested by the police on 24 October 1997, on charges which are not relevant for present purposes. He initially informed the police that his name was "Raj Singh" and that his address was 15 Willowbank Street, but thereafter when he was interviewed he gave his true name and his present address as 9 Cedar Street, Glasgow (there are several versions of this address in the papers, but this is the one given in the petition). Once he had been identified as an absconder detention papers were served on the police and the petitioner remained in custody in respect of the criminal charges and in immigration detention until 16 February 1998. On that date his pleas of not guilty to the criminal charges were accepted and thereafter he remained in immigration detention. He could not, however, be removed from the United Kingdom without appropriate documentation. On 15 December 1997 an application for an emergency travel document at the instance of the respondent was sent by courier to the Indian High Commission. The Indian High Commission gave a reference number for the application on 15 January 1998, but by the date of the continued first hearing on 1 March 2000 the emergency travel document had not been issued by the Indian authorities. The respondent's position is that it is solely because of this delay in the issue of the appropriate documentation that action to remove the petitioner from the United Kingdom has not yet taken place.
[5]The petitioner was granted bail from immigration detention on 18 February 1998. Thereafter he instructed new agents in connection with his asylum application. It is stated on his behalf that...
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