Krystof Kedra Against The Advocate General For Scotland
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby |
| Neutral Citation | [2016] CSOH 127 |
| Court | Court of Session |
| Published date | 02 September 2016 |
| Year | 2016 |
| Date | 02 September 2016 |
| Docket Number | P252/15 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 127
P252/15
OPINION OF LORD BOYD OF DUNCANSBY
In the cause
KRYSTOF KEDRA
Petitioner;
against
THE ADVOCATE GENERAL FOR SCOTLAND
Respondent:
Petitioner: O’Neill QC; Caskie; Drummond Miller LLP
Respondent: Carmichael QC; Komorowski; Office of the Advocate General
2 September 2016
Introduction
[1] The Petitioner is a citizen of Poland. According to the petitioner he has been living in the United Kingdom since 2009. He is married and has four children. They normally live in Bradford.
[2] The petitioner has a criminal record. Between 1 March 1995 and 27 August 2003 he was convicted in Poland of offences involving personal violence, public disorder, theft and robbery. In particular on 25 September 2002 the petitioner was convicted at the Regional Court Tarnobrzeg, Poland of robbery and sentenced to 4 years 6 months imprisonment. On 11 June 2009 the petitioner accepted a caution in England and Wales for damaging or destroying another’s property. On 9 September 2009 the petitioner was convicted at Stratford Magistrates Court of battery and was given a conditional discharge for 12 months.
[3] On 5 December 2014 a notice of liability to deport the petitioner in terms of the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations) regulations 19(3)(b) and 21 was sent to an address in Bradford. It was returned undelivered. On 15 January 2015 a decision was taken to make a deportation order in terms of the above regulations. The Secretary of State certified that the petitioner’s removal before any appeal against the decision was finally determined would be consistent with the petitioner’s human rights in terms of regulations 24AA. That decision, and the certification, were “served on the file” due to the petitioner’s whereabouts being unknown, in terms of the Immigration (Notices) Regulations 2003 (the 2003 Regulations) regulation 7(2). On the same day a deportation order was signed in terms of the 2006 Regulations, regulation 24(3) and the Immigration Act 1971 section 5(1).
[4] The petitioner was unaware of these decisions. In February 2015 he and his family went on holiday to Poland. On the family’s return to Manchester Airport on 25 February the petitioner was detained and he was refused entry to the UK. He spent some time in Dungavel detention centre but was subsequently released.
[5] The petitioner seeks a number of orders the effect of which would be to quash the deportation order and the decision to refuse the petitioner entry to the UK. There is no challenge to the Secretary of State’s decision to certify that removal before any appeal against the decision was finally determined would not be inconsistent with the petitioner’s human rights.
[6] The argument before me was restricted to two issues. The first was whether “service on the file” could be valid against a citizen of the European Union. The second issue raised by the respondent was that the petition was incompetent. The petitioner has another remedy namely a right of appeal to the First-tier Tribunal (FTT). By the time he was aware of the decision he was out of time to lodge such an appeal. However, the respondent argues that the petitioner could have applied out of time. She further argued that the FTT would be bound in the circumstances to have allowed an appeal out of time. Since the right of appeal has so far not been exercised, it is said that the petitioner has failed to exhaust his remedies. The petition is therefore incompetent and should be dismissed.
[7] Both parties lodged written notes of argument which record the submissions.
Service on the file
[8] Regulation 7 of the 2003 Regulations is in the following terms:
“7.—Service of notice
(1) A notice required to be given under regulation 4 may be—
(a) given by hand;
(b) sent by fax;
(c) sent by postal service in which delivery or receipt is recorded to:-
(i) an address provided for correspondence by the person or his representative; or
(ii) where no address for correspondence has been provided by the person, the last-known or usual place of abode or place of business of the person or his representative;
(d) sent electronically;
(e) sent by document exchange to a document exchange number or address;
(f) sent by courier; or
(g) collected by the person who is the subject of the decision or their representative.
(2) Where—
(a) a person’s whereabouts are not known; and
(b)
(i) no address has been provided for correspondence and the decision-maker does not know the last-known or usual place of abode or place of business of the person;
(j) the address provided to the decision-maker is defective, false or no longer in use by the person; and
(c) no representative appears to be acting for the person,
The notice shall be deemed to have been given when the decision-maker enters a record of the above circumstances and places the notice on the relevant file.
(3) Where a notice has been given in accordance with paragraph (2) and then subsequently the person is located—
(a) he shall be given a copy of the notice and details of when and how it was given as soon as practicable; and
(b) the tie limit for appeal under the Procedure Rules shall be calculated from the date the notice is deemed to have been given in accordance with paragraph (2).”
Submission for the petitioner
[9] The petitioner is in the UK not on sufferance but in exercise of his rights under EU treaties. Having been in this country for more than five years he has a permanent right of residence; article 16 of the EU Citizenship Directive 2004/38 and regulation 15(1) of the 2006 Regulations. He enjoys substantial protection against expulsion or exclusion from the UK and he has a right to equal treatment with other EU nationals; articles 28 and 24 respectively of Directive 2004/38. Accordingly he is to be treated as effectively within his own country in exercising treaty rights. The Secretary of State has however treated the petitioner as she would an alien with no right to reside in the UK under EU treaties.
[10] Service on the file is not an effective manner of service of official orders which could impede the petitioner’s free movement rights. It is contrary to the procedural protections which are afforded as a matter of EU law and common law constitutional principles to persons such as the petitioner exercising their EU free movement rights; R (Anufrijeva)v The Secretary of State for the Home Department and Another [2004] 1 AC 604 per Lord Steyn at paragraphs 26, 27-31. There is a strong presumption against the executive having the power to alter the right and duties otherwise owed to an individual (whether a UK national or other EU citizen) by virtue of an uncommunicated decision such as a note on file. It would only be where express and unequivocal provision has been made by Parliament to enable the executive to alter such rights. The Secretary of State in making regulation 7(2) of the 2003 Regulations is purporting to exercise the powers conferred on her by section 105 and section 112(1)-(3) of the Nationality Immigration and Asylum Act 2002. However, section 105(3) of the 2002 Act provides that “the regulations may make provision (which may include presumptions) about service.” Regulation 7(2) of the 2003 Regulations however makes provisions for deemed service on the file. A deeming provision is not a presumption since a presumption can be disapplied. Moreover the 2002 Act does not expressly and unequivocally allow for a departure from the Anufrijeva principal that “notice of a decision is required before it can have the character of a determination with legal effect”. It may be argued that regulation 7(2) of the 2003 Regulations provides an irrebuttable presumption and therefore is consistent with section 105 of the 2002 Act. However, that would not be consistent with the constitutional principle set out by Lord Steyn in Anufrijeva.
[11] As a matter of general principles of EU law actual notification of the decision is required before it can be effective. Secondary EU law requires to be applied consistently with the general principles of EU law directives. Directives such as Directive 2004/38 have to be interpreted and applied in a manner which is consistent with these general principles. In case C-101/08 Audiolux SA EA v Groupe Bruxelles Lambert SA (GBL) [2010] 1 CMLR 39 the Court of Justice of the European Union confirmed (at paragraph 63) that “the general principles of community law have constitutional status”. See also Advocate General Trstenjak in her opinion paragraphs 70-71.
[12] The respondent in her note of argument referred to certain case law of the Court of Justice relating to the recognition of judgments under Bruxelles 1 (EC) regulation 44/2001 concerning private law disputes between private parties and civil and commercial matters. However, it was inappropriate to draw an analogy from these cases to the position of the UK applying EU public law. In any event Bruxelles 1 case law only allows “summons by public notice” if the rights of those concerned are properly protected: see case C-420/07 Orams and Another v Apostolides [2011] QB 519 at paragraph 76 and Reeve v Plummer [2014] EWHC 4695 (QB) paragraphs 29 and 30. The right to individual notification of a decision is a general principle of EU public law just as much as it the principle of UK constitutional law; R (Anufrijeva) paragraph 29; case C-548/09 P Bank Melli v Council of the European Union [2011] ECR I-11381 per Advocate General Mengozzi at paragraph 50. Another general principle of EU law is the right to good administration encompassing the right of individuals to have their affairs handled fairly by the institution of the member state while acting within the ambit of EU law. That includes the right of every person to be heard before any individual measure which would affect them adversely is taken; article 41(2)(a) of the EU Charter of Fundamental Rights. The unfairness of the...
To continue reading
Request your trial
-
Appeal By The Council Of The Law Society Of Scotland Against The Scottish Legal Complaints Commission (slcc)
...the nobile officium is excluded where there are alternative remedies available to the petitioner (KK v The Advocate General for Scotland [2016] CSOH 127 at paragraph 22). [59] Having considered the written submissions, I have formed the view that section 21 provides the parties with the nec......
-
Ab Against General Teaching Council For Scotland
...of the above position he directed the court’s attention to RCS 58.3(1); Krystof Kedra v Secretary of State for the Home Department 2016 CSOH 127 per Lord Boyd at paragraphs 21 and 22; McGeough v Scottish Legal Aid Board 2013 SLT 183 per Lord Brodie at paragraph 76 and B Petitioner 2010 CSOH......