Petition Of Charanjit Singh For Judicial Review V.
| Jurisdiction | Scotland |
| Judge | Lord Mackay of Drumadoon |
| Date | 10 October 2001 |
| Court | Court of Session |
| Published date | 10 October 2001 |
| OUTER HOUSE, COURT OF SESSION | |
| OPINION OF LORD MACKAY OF DRUMADOON in Petition of CHARANJIT SINGH (AP) Petitioner for Judicial Review of (i) a decision of the Secretary of State for the Home Department and (ii) a determination of a Special Adjudicator ________________ |
Petitioner: Bovey, Q.C., Collins; Lindsays
Respondent: O'Neill, Q.C.; H. MacDiarmid
10 October 2001
Introduction
[1]The petitioner is an Indian citizen. He was born on 10 November 1963. The petitioner left India in 1995 and travelled to the United Kingdom. In this petition for judicial review, the petitioner has set out his reasons for leaving India, claiming, amongst other things, that he was assaulted by members of a movement seeking an independent Khalistan and that he was threatened by the police in the Punjab.
[2]The petitioner entered the United Kingdom in July 1995. On 19 July 1995 he applied to the respondent, the Secretary of State for the Home Department, for leave to remain in the United Kingdom as a refugee. By letter dated 17 September 1997, that application was refused by the respondent. The petitioner appealed against the respondent's decision. On 21 November 1997, a Special Adjudicator considered the petitioner's appeal, at a hearing that took place in Glasgow. The Special Adjudicator refused the appeal. He announced his decision to that effect at the conclusion of the hearing. The Special Adjudicator's Determination, in respect of the appeal, was subsequently promulgated on 27 February 1998.
[3]In this petition, the petitioner seeks reduction of (i) the decision by the respondent, dated 17 September 1997, refusing the petitioner's application for asylum in the United Kingdom and (ii) the Determination of the Special Adjudicator, dated 27 February 1998, refusing the petitioner's appeal against that decision of the respondent.
[4]The petition came before me at a First Hearing. At that First Hearing, the submissions of parties focused on one issue, namely whether the Determination of the Special Adjudicator, Mr Frank Pieri, should be reduced on the ground that the Special Adjudicator had not been an "an independent and impartial tribunal established by law", when he heard and decided the petitioner's appeal.
Factual background
[5]Before turning to the legal issues, which arise for consideration, it is necessary to set out the factual background to the appointment of the Special Adjudicator, Mr Frank Pieri. Mr Pieri is a qualified lawyer, who is a member of the Faculty of Advocates in Scotland. Throughout the period, covering 21 November 1997, when the Special Adjudicator decided the petitioner's appeal, and 27 February 1998, when he issued his Determination, Mr Pieri was in private practise as an advocate. By letter dated 2 January 1997, the Lord Chancellor had offered Mr Pieri an appointment as a part-time Immigration Adjudicator. That letter contained a paragraph in the following terms:
"The appointment would initially be for a term of approximately one year made on the understanding that while the Lord Chancellor would normally hope to renew it upon its expiry, it will be understood that this cannot always be possible, and indeed there may be reasons sometimes for terminating an appointment before its expiry. If the Lord Chancellor decided to stand you down at any time, he would endeavour to give you reasonable notice but such notice might not be practicable in every case."
The letter went on to state that, subject to the availability of work, the Lord Chancellor hoped that Mr Pieri would be able to sit as an Immigration Adjudicator for between twenty and fifty days a year.
[6]A memorandum giving details of the conditions of service for part-time Immigration Adjudicators was enclosed with the letter. Certain paragraphs of that memorandum are of relevance.
"2.Qualifications
The primary qualification for appointment is the ability to conduct hearings and decide appeals impartially and in a judicial spirit. Legal qualifications are now essential and relevant legal experience is desirable.
......
5.Length of appointment
Appointments in the first instance are normally made for a period of one year, but thereafter may be renewed from time to time at the discretion of the Lord Chancellor for such periods as he may determine. This memorandum applies on appointment and re-appointment. Each appointment is made on the understanding that there is no legitimate entitlement to renewal upon its expiry. An appointment may be terminated at any time by one month's notice in writing on either side, without cause assigned. In addition, the Lord Chancellor reserves the right to suspend or terminate an appointment at any time if, in his opinion, the person appointed becomes unsuitable to perform the duties of the office by reason of inability, misbehaviour, or any other cause, or there is any likelihood that public confidence in his impartiality would be impaired. An Adjudicator should report it to the Lord Chancellor's Department at once if charged with any criminal offence. A copy of a letter from the Lord Chancellor to the Lord Chief Justice dated 19 July 1994 is attached and you are asked to note the contents.
......
8.Availability
The services of part-time Adjudicators are called upon as the need arises; their own commitments are borne in mind but they may at present be expected to do this work for an average of one day a week; in a few instances it may be possible to arrange consecutive sitting days. They may be called upon when necessary to hear appeals outside normal working hours. Like those doing other part-time judicial work, they are not normally permitted to do more than 50 days a year, including any other judicial work for the Lord Chancellor; some latitude is allowed in respect of those who are not in full-time employment.
......
11.An Adjudicator should not preside in circumstances which might give rise to doubt regarding his impartiality. Accordingly an Adjudicator should not preside at the hearing of a case if:
(1)he or she has any personal, professional or pecuniary interest in that case; or
2)any firm or business of which he or she is a member in any capacity, has such an interest.
In either of these eventualities, an Adjudicator should, at the earliest opportunity, make arrangements with the Clerk for the case to be heard before another Adjudicator.
...... "
The letter dated 19 July 1994, referred to in Paragraph 5, was written by the Lord Chancellor and set out his views on judicial conduct and his approach to issues of judicial misbehaviour.
[7]Mr Pieri accepted the Lord Chancellor's offer of an appointment. Later in January 1997 Mr Pieri was appointed as a part-time Immigration Adjudicator, for the period until 31 January 1998. On 4 September 1997, pursuant to Section 8(5) of the Asylum and Immigration Appeal Act 1993 and section 3(3) of the Asylum and Immigration Appeal Act 1993 and for the purposes of those sections, the Lord Chancellor also designated Mr Pieri as a Special Adjudicator, with effect from 8 October 1997 and until 31 January 1998. Mr Pieri's initial appointment as a part-time Immigration Adjudicator and Special Adjudicator accordingly covered the period during which he heard and decided the petitioner's appeal and issued the Determination, which the petitioner now seeks to reduce.
[8]During the hearing before me, some reference was also made to the terms of service upon which part-time Immigration Adjudicators and Special Adjudicators have been appointed since the end of December 1997. Accordingly it is appropriate that I should set out the details of certain of the changes to the terms of service that have been introduced since Mr Pieri refused the petitioner's appeal. By letter dated 19 December 1997, Mr Pieri was re-appointed as a part-time Immigration Adjudicator and Special Adjudicator for the period from 1 February 1998 until 31 January 2001. That letter of re-appointment contained a paragraph in similar terms to the paragraph that I have already quoted from the letter of 2 January 1997. The letter of re-appointment, dated 19 December 1997, also advised Mr Pieri that the Lord Chancellor reserved the right to suspend or terminate an appointment at any time, if, in his opinion, the person appointed became unsuitable to perform his duties by reason of inability, misconduct or any other cause. Enclosed with the letter of re-appointment was a revised Memorandum of Conditions of Service. That memorandum was in similar, albeit not identical, terms to the memorandum, which Mr Pieri received when he was first offered a part-time appointment by the Lord Chancellor.
[9]By letter dated 12 April 2000, headed "PART TIME JUDICIAL APPOINTMENTS", Mr Pieri and all other part-time Immigration Adjudicators and Special Adjudicators were advised that the Lord Chancellor had adopted a new policy and procedure for the part-time judicial appointments for which he was responsible. The letter stated that the new arrangements, which had been agreed between the Lord Chancellor and the Lord Chief Justice, were "to ensure the impartiality and independence of all part-time holders of judicial office in compliance with Article 6 of the European Convention on Human Rights". Mr Pieri was advised that these new arrangements would come into effect immediately. Mr Pieri was also informed that his current appointment had been extended for such period as would bring it to the maximum (renewable) period of five years. He was advised, in outline, of the grounds upon which decisions as to removal from appointment and the non-renewal of appointments would be taken.
[10]Subsequently, in a letter dated 29 August 2000, headed "PART-TIME TRIBUNAL APPOINTMENTS", Mr Pieri was informed that his appointment as a part-time Immigration Adjudicator/Special Adjudicator had been extended until 31 January 2005. A copy of the revised Terms and Conditions and Terms of Appointment for Part-Time Immigration Adjudicators was enclosed...
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