Petition Of A M For Judicial Review Of A Decision Of The Secretary Of State For The Home Department To Detain The Petitioner
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Neutral Citation | [2010] CSOH 111 |
| Date | 11 August 2010 |
| Docket Number | P37/10 |
| Court | Court of Session |
| Published date | 11 August 2010 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 111 | |
| P37/10 | OPINION OF LORD BANNATYNE in the Petition of AM Petitioner: for Judicial Review of a Decision of the Secretary of State for the Home Department to detain the petitioner ________________ |
Petitioner: Caskie; Drummond Miller LLP
Respondent: Webster; Office of the Solicitor to the Advocate General
11 August 2010
Background
The subject of the proceedings
[1] In this Judicial Review the petitioner sought reduction of the Secretary of State for the Home Department's (hereinafter referred to as "the respondent") decisions to detain the petitioner in terms of schedule 3 of the Immigration Act 1971 (hereinafter referred to as "the Act") from 20 December 2008 to the date of the hearing (hereinafter referred to as "the challenged decisions").
The factual background to the petitioner's detention
[2] The factual background was not generally in dispute and I was able to make the following findings from the pleadings; the productions; the statements made by counsel during the course of submissions and a chronology of events which was lodged by counsel for the respondent at the outset of the hearing and which I understood not to be in dispute in so far as it set out dates on which certain events had occurred.
[3] The petitioner arrived in the United Kingdom on 20 June 2005 at Heathrow Airport. He arrived on a South African passport. He entered the country on a working Holiday Maker Visa valid until 25 April 2007. He was found on arrival to have concealed 1 kilogram of heroin in his stomach and on 18 October 2005 was convicted of a relevant offence. On 1 December 2005 he was sentenced to 7 years imprisonment and the court further recommended his deportation. The petitioner was due to be released from the custodial part of his sentence on 20 December 2008. He was then detained by the respondent and has been held in custody since that date by the respondent, in terms of Schedule 3 of the Act, pending his deportation.
[4] The following events material to the discussion before me have occurred between 16 December 2005 and 28 October 2009:
"16/12/05 The petitioner signed a bio data form. Details given as:-
(i) Last known address - 13 Zone no10, Ranga, South Africa
(ii) Sisters - Amanda Mbulawa, deceased
- Nonthomd Mbulawa, deceased
(iii) Brothers - Siniko Mbulawa, address as above, 15 yrs old
- Manges Mbulawa, deceased
(iv) Mother - Nonikelela Mbulawa, address as above, 62 yrs old
(v) Father - Anele Andile Mbulawa, deceased
07/02/06 ETD application received by RGDU. An ETD is a travel document required for the petitioner to enter South Africa
10/05/06 The petitioner had a telephone interview with the South African authorities where he allegedly claimed to have stated that he was not a South African national.
26/06/06 The petitioner was served with a notice of liability to deport letter and a status questionnaire. He replied, confirming that he was single, without children and that his mother, brother and sister resided in South Africa.
06/07/06 The petitioner was served with a Notice of intention to Deport letter.
19/07/06 A fax was received from RGDU notifying that the South African authorities had refused to issue an ETD for the petitioner as they did not believe him to be a South African national.
26/07/06 The subject was served with a Notice of Intention to Deport letter.
27/06/07 Petitioner signed bio data form. Details given as:-
(i) Previous address in your own country - Zone 13, Langa, Cape Town
(ii) Mother's address - D151 Monde Str, Khayelitsha, Cape Town
(iii) Notes he is not married
17/07/07 CID note states that RGDU cannot get any other details of why the ETD was refused.
18/07/07 A signed Deportation Order was served on the petitioner. He did not appeal against deportation.
31/08/07 FRS refused.
27/06/08 Passport photos were sent to the South African Team in GDU to progress the ETD application.
09/07/08 Fax sent to RGDU to request a progress update for the case
14/07/09 Phone call received from the South African authorities requesting that RDs be set for the subject.
11/08/08 The petitioner was released as part of the ERS scheme and entered IS detention.
12/08/08 Removal directions to ZAF were due to take place on this date but the ZAF authorities revoked the petitioners ETD as they did not believe him to be a ZAF national. The subjects phone interview with the ZAF authorities on 10/05/05 came to light.
12/08/08 The petitioner was returned to custodial detention to serve the remainder of his sentence.
12/09/08 The documentation unit closed the case (ISDU: 32043). No further progress was made regarding chasing a document or making a re-application to the ZAFs.
10/12/08 Faxed latter received from petitioner and questionnaire. (Lodged by petitioner productions 6/8 and 6/9).
(i) Previous address noted as No 29 Vecsand, Atlantis, South Africa
(ii) Mother's current address noted as No 51, Mote Str, Khayelitsha, Cape Town
(iii) Siblings - only two noted. Nantombi Mbulawa and Siyabuleta Mbulawa. Dates of birth 1975 and 1971 respectively and both noted as having current addresses in Mwata, South Africa. However, in covering letter states that his siblings died in 2003 and 2008 and that he wants to go home as his mother is ill. Names different to those given in 2005.
30/04/09 The petitioner's application for bail was refused.
08/05/09 The petitioner had an asylum interview. This claim was treated as an application to revoke a DO.
08/05/09 Screening Interview (information given by the petitioner)
(i) Last permanent address - 29 Vecsand, Atlantis, South Africa
(ii) Siblings - only two mentioned at questions 4.3 and 4.4. (iii) Marital status - single - question 4.1
08/05/08 SEF (self evaluation form completed by petitioner)
(i) Last address in country of origin - 29 Vecsand, Atlantis, Cape Town
(ii) Questions 25 and 26 - reference to brother and sister being deceased.
(iii) Question 28 - reference to mother being helped by other people in village. In 2007, above address for mother is living in Cape Town - not village.
(iv) Marital status single - question 13a.
02/06/09 The subject was served with a letter refusing to revoke this DO.
18/06/09 The subjects case was transferred to CCD Leeds.
22/06/09 Subjects HO file was received in CCD Leeds - unsure when a new case owner was assigned
25/06/09 Request for TA received
07/07/09 RGDU contacted re: ETD, advised that the case was closed
08/07/09 TA refused.
15/07/09 T/C received form petitioner was updated and advised on how he could progress his case quicker. Advised that he can contact the ZAF authorities directly.
16/07/09 T/C received from Ashura Mohammed Issa (J1027519) claiming to be the Petitioner's wife. She advised that the petitioner had contacted the ZAF authorities and that they did not accept him. Checks made on Ms Issa showed that she has no mention of a husband on her records and no reference to her on his. Therefore no information was given to her in subsequent phone calls.
17/07/09 Fax sent to Dungavel to request they give the subject the opportunity to contact relatives in ZAF if he should wish.
24/07/09 Bail application received.
29/07/09 Bail refused - Further bail application received.
31/07/09 Bail withdrawn at hearing
03/08/09 Bail application received.
06/08/09 Bail refused - Further bail application received.
12/08/09 Pro-Forma sent to the subject to authorise language analysis
13/08/09 Bail refused - Further bail application received.
14/08/09 Bail refused - Further bail application received.
18/08/09 Bail refused.
20/08/09 Info from Dungavel.
Bail application received. T/C to Dungavel to chase language analysis pro-forma. They confirmed that the petitioner was refusing to sign and had been given every opportunity to contact relatives in ZAF but was now claiming he did not have any relatives. Faxed copy of petitioner's statements received.
21/08/09 Bail refused.
01/09/09 Bail application received.
03/09/09 Bail refused.
04/04/09 Bail application received.
08/09/09 Bail refused.
09/09/09 Bail application received.
11/09/09 Bail refused - Further bail application received. Following independent enquiries with ZAF authorities they state that the petitioner may be Zambian due to his accent.
15/09/09 Bail refused
25/09/09 Nationality Interview At Dungavel
Petitioner turned up late and gave no further information regarding nationality.
29/09/09 Bail application received.
01/10/09 Bail refused.
12/10/09 Zambian interview arranged for 16/10/09
16/10/09 Telephone interview attempted but IO was unable to get through to the Zambian HC.
19/10/09 Bail application received
20/10/09 Petitioner withdrew bail application
26/10/09 Zambian interview re-arranged for 28/10/09
28/10/09 Zambian interview went ahead but petitioner claims that he was not Zambian, had never been to Zambia and that his parents were from ZAF. Zambian authorities did not believe from his accent that he was Zambian and that he sounded ZAF. - Further bail application received.
As at the date of the hearing before me the South African Authorities were not willing to accept the petitioner's return to that country.
Grounds of challenge
[5] (1) The respondent has continued the petitioner's detention when there has been no prospect of his being removed in the foreseeable future. Accordingly detention cannot be said to be for the purpose of removal.
[6] (2) Further and in any event, the respondent has insisted on maintaining the petitioner's detention beyond any period that might in all the circumstances of the case be considered to be reasonable.
The Relevant Legislative Framework
The domestic law
[7] Section 5 of the Act provides that the provision of Schedule 3 to the Act are to have effect with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and with respect to the detention or control of persons in connection with...
To continue reading
Request your trial
-
Petition Of Hcs For Judicial Review Of A Decision To Detain The Petitioner
...[41] I note in passing that the same conclusion was reached by Lord Bannatyne in AM v Secretary of State for the Home Department [2010] CSOH 111, a decision which post-dated the arguments in the present case. Self-induced detention [42] The submission for the respondent was to the effect th......
-
In The Petition Of B.n. For Judicial Review Of Decision Fo The Home Department To Detain The Petitioner
...of State to seek to exercise his power of detention." That formulation of the law has been accepted in Scotland in AM, Petitioner [2010] CSOH 111. On the basis of this authority it is patently clear that the right of the Secretary of State to detain a person pending deportation is not unfet......