K.m. For Judicial Review Of A Decision Of The Secretary Of State For The Home Department To Detain The Petitioner
| Jurisdiction | Scotland |
| Judge | J. Gordon Reid, Q.C. |
| Judgment Date | 2010 |
| Neutral Citation | [2010] CSOH 8 |
| Published date | 21 January 2010 |
| Date | 21 January 2010 |
| Year | 2010 |
| Court | Court of Session |
| Docket Number | P1435/08 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 8 | |
| P1435/08 | OPINION OF TEMPORARY JUDGE J. GORDON REID Q.C., F.C.I.Arb. in the Petition of MR KM (FE) Petitioner; For Judicial Review of decisions of the Secretary of State for the Home Department to detain the petitioner __ _____________ |
Petitioner: O'Neill Q.C., Komorowski; Drummond Miller LLP
Respondent: Murphy Q.C., Lindsay; Office of the Solicitor to the Advocate General
21 January 2010
Introduction
General Background
[1] In 2000, a foreign national, possibly from Iran, enters the United Kingdom, probably via Turkey and France. He makes three claims for asylum under different names. One is granted; another two are refused. In 2002, he is arrested, but granted Temporary Admission and released from custody subject to reporting conditions which he breaches. In 2004, he is convicted of robbery and sentenced to four years imprisonment. The trial judge recommends deportation noting that there is a high risk of re-offending. On conclusion of his sentence in 2006, the Secretary of State issues a deportation notice and subsequently a deportation order. The individual remains in custody pending his deportation. He has no documents establishing his identity. He has no close ties with the United Kingdom. He does not co-operate sufficiently with the authorities to obtain them. Until he obtains them, the Iranian authorities (if he is indeed an Iranian national) will not accept him back. All his statutory rights of appeal have been exhausted or waived.
[2] The Secretary of State says there is a high risk that he will re-offend and/or abscond and so cannot be released. He will be deported as soon as he co-operates and obtains emergency travel documentation. The Petitioner says the Secretary of State has been operating illegal immigration policies and his continued detention is flawed procedurally. In any event, the time has long passed since the Petitioner was reasonably and properly detained and so is entitled to be released.
[3] These are the bare bones of the factual background and arguments which gives rise to this First Hearing in the Petitioner's application for judicial review in which he seeks declarator that his detention is unlawful, liberation, interim liberation, reduction of various decisions, and damages (including vindicatory damages).
Procedural History
[4] First Orders were pronounced on 5 August 2008 and a First Hearing Fixed for 14 November 2008. That diet was discharged as were further such diets fixed for 5 and 27 February 2009. A further diet was fixed (for 7 July) and parties were ordered to produce inter alia adjusted Notes of Argument and a joint bundle of Authorities. The pleadings meantime remained open. On 7 July 2009, the First Hearing was again discharged, and further adjustment of the pleadings authorised. On 10 July 2009, a motion for interim liberation was refused. By October 2009, numerous inventories of productions had been lodged by the parties together with a joint bundle of authorities extending to a little under 2000 pages. Various statements of issues were also produced but counsel did not refer to or adhere to them in the course of their submissions. On 27 to 30 October 2009 a First Hearing took place.
[5] The pleadings are lengthy, and contain much detailed argument and reference to case law. One or two infelicities in the text were pointed out at the outset. In addition, a set of adjustments had been tendered on behalf of the Petitioner at or shortly before the July First Hearing. Their status was somewhat uncertain but I was prepared to proceed on the basis that they formed part of the Petitioner's pleadings. In the event, counsel made little reference to the pleadings apart from identification of the Orders sought.
Issues
[6] The central issue is whether the Petitioner should now be granted his liberty. All other issues are embraced within that over-arching question. These "subsidiary" issues include the legality of the underlying basis of his continued detention, which in turn raises questions as to the legality of various policies adopted by the Secretary of State; the procedural propriety of the process by which the Petitioner has been detained since 24 February 2006; and the relevance and weight to be attached to a detainee's continued lack of co-operation. The parties agreed that the question of damages, were it to arise, should be deferred meantime.
Factual Background
[7] The factual background is not seriously in dispute. The following narrative is based on the pleadings, the voluminous productions and to some extent, additional non-contentious statements made by counsel at the Bar in the course of the Hearing.
[8] The Petitioner arrived in the United Kingdom on 26 January 2000. In the pleadings, it is admitted that he is a citizen of Iran, although some doubt about this was cast by counsel in the course of the Hearing. While there are some minor discrepancies in the documents, it appears that the Petitioner claimed asylum and stated his date of birth to be 1 January 1979. In July 2000, he made another application for asylum giving a different date of birth. In July 2001 one of his two outstanding claims was granted by the Secretary of State. On 29 May 2002, the other asylum claim was refused and directions were issued for the Petitioner's removal to Iran. On the following day he was arrested on suspicion of being an illegal entrant. He gave a different identity (claiming to be Iraqi), and date of birth, and claimed asylum; but fingerprint checking revealed his previous asylum claims. His third asylum claim was withdrawn. He was granted Temporary Admission to the United Kingdom (subject to reporting conditions) and released from custody.
[9] He breached those conditions in November 2002. On 24 April 2004, the Petitioner was convicted at Birmingham Crown Court of Robbery. On 24 June 2004, he was sentenced to four years imprisonment. The trial judge also recommended deportation. The trial judge also noted that (a) the Petitioner had used three separate identities, (b) in 2001 he was convicted of criminal damage, (c) in May 2002 he was convicted of a series of offences including assaulting a police officer, criminal damage and failing to surrender himself to custody for all of which he received a short prison sentence, (d) he had not at any stage attempted to behave responsibly, (e) his pre-trial claim to have a serious psychiatric problem was fictitious and, in the main, a sham, (f) the Petitioner had informed his probation officer that he might re-offend, (g) the risk of harm to the public from his activities was high, (h) there was a strong risk or likelihood of repetition of offences in the event of his being released.
[10] In June 2005, he signed disclaimers waiving his rights to appeal against the Secretary of State's decisions to implement the judge's recommendation, and to refuse the Petitioner asylum. There was no dispute that the Petitioner has exhausted or waived all statutory rights of appeal which might enable him lawfully to remain in the United Kingdom.
[11] On 24 February 2006, the Petitioner's prison sentence was completed. On that day, he was served with a decision notice indicating that the Secretary of State had decided that the Petitioner should be deported. The Petitioner did not timeously appeal against that decision. Thereafter, the Petitioner was detained under the authority of the Secretary of State pending his deportation.
[12] It appears from facts revealed in a number of English cases (R Hassan Abdi & Ors [2008] EWHC 3166 (Admin) per Davis J at paragraphs 27, 36-38, and 44, Ashori [v SSHD [2008] EWHC 1460 (Admin) per Mitting J 22 May 2008] and Lumba [v SSHD [2008] EWHC 2090 (Admin) per Collins J, 4 July 2008], that in April 2006, the then Secretary of State adopted the policy, which was not published, that save in exceptional circumstances, foreign national prisoners were to be detained on completion of their prison sentences with a view to deportation. That policy was subsequently declared to be unlawful by Davis J in R (Hassan Abdi & Ors) D19/12/08 2008 EWHC 3166 (Admin). A revised policy on the release of foreign national prisoners was subsequently released in January 2009.
[13] A deportation order was signed on 13 March 2007 and served on the Petitioner on 2 May 2007. By that stage, it had become clear (from facts emerging in other Immigration cases in the form of affidavits and other documents produced by government officials (see for example Abdi referred to below) that enforced removal to certain countries such as Iran was becoming problematic and procedurally difficult to carry into effect.
[14] Between about the end of December 2007 and early April 2008, the Petitioner was detained in Hartwood Hospital, which has a secure Psychiatric Unit. There was and is a question mark as to whether the Petitioner has truly suffered from any significant form of mental illness.
[15] In June 2008, an application for bail was refused. The Immigration Judge, who had before him a comprehensive bail summary in chronological form, expressed the view, in his decision dated 16 June 2008 that there was nothing before him to indicate that the Petitioner would co-operate with the authorities and comply with the requirements of the authorities if bail were granted; the Judge's view was that the Petitioner presented a high risk of absconding and could not be trusted to comply with bail conditions if and when he perceived removal likely.
[16] In August 2008, a petition for judicial review was presented on his behalf. In April 2009 another application for bail was refused by an Asylum and Immigration Tribunal Judge. The Judge records the Petitioner's representative as submitting that the Petitioner did not wish to return to Iran. The Judge thought it was clear that the Petitioner was not prepared to co-operate in the Facilitated Return Scheme. The Judge, in refusing bail, concluded...
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