Phoung Vo (ap) Against The Right Honourable The Lord Wallace Of Tankerness, Qc, Advocate General For Scotland
| Jurisdiction | Scotland |
| Judge | Lady Rae |
| Judgment Date | 2015 |
| Neutral Citation | [2015] CSOH 95 |
| Docket Number | P181/14 |
| Date | 16 July 2015 |
| Year | 2015 |
| Court | Court of Session |
| Published date | 16 July 2015 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 95
P181/14 & P171/14
OPINION OF LADY RAE
In the Petitions of
SALAM ESSAM MOHOMED ABDEL AL
First Petitioner;
and
PHUONG VO (AP)
Second Petitioner;
against
THE RIGHT HONOURABLE THE LORD WALLACE OF TANKERNESS, QC, Advocate General for Scotland, as representing the Secretary of State for the Home Department
Respondent:
for
Judicial Review of Decisions of the Secretary of State for the Home Department to remove the first Petitioner to Hungary and to remove the second Petitioner to Germany
Petitioners: Dewar, QC, Caskie; Drummond Miller LLP
Respondent: Pirie; Office of the Advocate General
16 July 2015
Introduction
[1] The present proceedings are concerned with judicial review of decisions of the Secretary of State for the Home Department (the Secretary of State) in relation to the removal of each of the petitioners from the United Kingdom under immigration legislation. I heard argument over several days, namely, 27-30 May 2014 with final oral argument on 13 November 2014. By agreement of parties further written submissions were lodged by the respondent in answer to some of the fresh submissions made by the petitioners on 13 November in relation to the Secretary of State’s certification decisions. This was to obviate the necessity of seeking a further day for continuation of the hearing when I and counsel would be available and when the court timetable would permit such a hearing. Subsequently and while the case was at avizandum I was advised that a request had been made to bring this case out by order as a motion had been lodged by the second petitioner on 9 January 2015 to allow amendment to his petition. That minute contained information regarding another petition in a similar case. This motion was opposed on the basis that, if allowed, further investigations would be necessary and inevitably this would delay the issue of my decision. I heard parties briefly on the motion on 25 February 2015 (the first available date). On the morning of the hearing parties agreed that the amendment procedure should not proceed further but the information contained in the minute of amendment was to be put before me under the proviso that the respondent’s counsel, Mr Pirie, was permitted to explain the background of the case referred to but on the limited information available as at 25 February. In addition I was advised that as at that date, 62 Scottish cases were sisted pending my decision in the present petitions and two Northern Irish cases had been sisted for the same reason. On 31 March 2015 I was advised that additional submissions and productions had been forwarded to the court. I refused to consider these additional documents until the respondent had an opportunity to make any representations. (Mr Pirie was on vacation as at that date.) On 5 May 2015 I was advised that further motions were to be lodged for amendment. These were to be opposed. I indicated that on the limited information available I was not at that stage prepared to put the case out by order. I left it to parties to decide what further procedure they could competently take but I expressed concerns at the risk of further procedure delaying this decision. I was advised there were now 90 Scottish cases sisted and an increased number of Northern Irish cases in the same position. In early June fresh motions were lodged by the petitioners seeking further amendment. These were opposed. The earliest hearing available was 30 June 2015. On that date, after discussion, senior counsel for the petitioners decided to withdraw the minutes of amendment. A motion for expenses was made by the respondent but by agreement I reserved that matter. I was advised that there were now 111 cases sisted in Scotland and 10 in Northern Ireland.
Background
[2] The first petitioner is a citizen of Sudan who entered the United Kingdom unlawfully and without leave. He sought asylum in Glasgow on 4 October 2013. The Secretary of State established that the first petitioner had previously made a claim for asylum in Hungary and as a result, on 25 October 2013, requested the Hungarian authorities to “take back” the petitioner in terms of Article 16.1 (c) of Council Regulation (EC) No 343/2003 of 18 February 2003 (the “Dublin II regulation”). The Hungarian authorities accepted the “take back” request on 5 November 2013 and the Secretary of State, as she is entitled to do, declined to consider the petitioner’s claim for asylum. On 12 November 2013 the Secretary of State also certified (“Third country certificate”) that the conditions set out in paragraphs 4 and 5, Part 2, Schedule 3, of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (“the 2004 Act”), were met. The effect of said certification was that the petitioner could not appeal against the decision of the Secretary of State until he had been removed from the United Kingdom. On 11 February 2014 the petitioner was advised of his liability to be removed and detained pending removal. Removal directions were set for his departure to Hungary on 20 February 2014. First orders in respect of these proceedings were granted by this court on 19 February 2014 and said removal directions were cancelled in accordance with the published policy of the Secretary of State. The first petitioner seeks reduction of the decision to remove him from the United Kingdom on the ground that that decision is unlawful et separatim unreasonable and he also seeks reduction of the decision to certify in terms of Part 2, Schedule 3 of the 2004 Act.
[3] The second petitioner is believed to be a citizen of Vietnam, who arrived in the United Kingdom unlawfully and without leave to enter during 2007. He first came into contact with immigration authorities on 3 June 2013. He was interviewed by the police at Reading Police Station and released with a requirement that he report to an office of the Secretary of State for the Home Department. He failed to do so. He was subsequently detained again by police on 30 December 2013 but attempted to escape on 31 December 2013. He was immediately re-captured. On 1 January 2014 a “Eurodac” search revealed that he had previously claimed asylum in Germany and had been fingerprinted on 8 August 2006. A request by the Secretary of State to the German authorities to “take back” the petitioner in terms of Regulation(EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 (“Dublin III regulation”) was accepted and on 21 January 2014 the Secretary of State declined to consider the petitioner’s claim for asylum. The Secretary of State also certified (“Third country certificate”) that the conditions set out in paragraphs 4 and 5, Part 2, Schedule 3, of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (“the 2004 Act”), were met. On 8 February 2014 the Secretary of State gave directions for the petitioner’s removal to Germany. Said removal was scheduled to take place on 24 February 2014. First orders were granted by this court on 21 February 2014 and said removal directions were cancelled on the same date. The second petitioner seeks reduction of the decision to remove him to Germany and reduction of the certification decision. A remedy in terms of Article 8 of the European Convention on Human Rights is also sought however that issue was not argued before me at the stage of the first hearing.
[4] If the Dublin regulations are applicable in respect of each petitioner it is accepted that Hungary would be the responsible state for the first petitioner’s application while Germany would be the responsible state for dealing with the second petitioner.
Relevant legislation, regulations etc
[5] The relevant law applicable to this case is contained in a number of different statutory provisions and regulations.
European Communities Act 1972 (the 1972 Act)
[6] Section 2 provides:
“(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable EU right’ and similar expressions shall be read as referring to one to which this subsection applies.”
Immigration and Asylum Act 1999
[7] Section 10 provides:
“(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if—
(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;”
Nationality, Immigration and Asylum Act 2002 (the 2002 Act)
[8] Section 77 provides:
“(1) While a person’s claim for asylum is pending he may not be—
(a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or
(b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts.
(2) In this section—
(a) ‘claim for asylum’ means a claim by a person that it would be contrary to the United Kingdom’s obligations under the Refugee Convention to remove him from or require him to leave the United Kingdom, and
(b) a person’s claim is pending until he is given notice of the Secretary of State’s decision on it.
(3) In subsection (2) ‘the Refugee Convention’ means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol.
(4) Nothing in this section shall prevent any of the following while a claim for asylum is pending—
(a) the giving of a direction for the claimant’s removal from the United Kingdom,
(b) the making of a deportation order in respect of the claimant, or
(c) the taking of any other interim or preparatory...
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