R.k. For Judicial Review Of A Decision By The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Macphail |
| Neutral Citation | [2007] CSOH 104 |
| Date | 19 June 2007 |
| Docket Number | P4/07 |
| Published date | 19 June 2007 |
| Court | Court of Session |
| Year | 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 104 | |
| P4/07 | OPINION OF LORD MACPHAIL in the petition of R K Petitioner; for Judicial Review of a Decision by the Secretary of State for the Home Department Respondent: ________________ |
Petitioner: Party
Respondent: A J Carmichael; Office of the Solicitor to the Advocate General
19 June 2007
Introduction
[1] This is a petition for judicial review of a decision by the Secretary of State for the Home Department. The Secretary of State has lodged answers. In the heading of the petition, the decision brought under review is said to be one dated 7 November 2006 to detain the petitioner under paragraph 16(2) of Schedule 2 to the Immigration Act 1971.
[2] Paragraph 16 is headed, "Detention of persons liable to examination or removal". As amended, it provides in part:
"(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A [removal of persons refused leave to enter and illegal entrants] [ . . . ], that person may be detained under the authority of an immigration officer pending:
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions."
[3] The heading of the petition is, however, misleading. The petition seeks not only declarator that the decision of 7 November 2006 is unlawful but also 16 other remedies. The petitioner is a party litigant. It is he who has drafted the petition, and he has appeared on his own behalf throughout these proceedings. Several judges have encouraged him to obtain legal representation, but he has not done so. That is unfortunate because, as will appear, he is labouring under a number of serious misapprehensions about the law, and his averments are in several places difficult to understand. The petition and answers have been made up into a record which runs to 37 pages. I heard the petitioner and counsel for the respondent at the first hearing on 7 and 8 June 2007. The hearing took the form of a debate on the competency and relevancy of the petition. Counsel for the respondent moved me to dismiss the petition.
The facts
[4] The basic material facts appear to be these. The petitioner is an Indian national. On 10 September 2002 he was granted a multi-visit entry clearance. He then applied for entry clearance as a student, but his application was refused on 13 February 2003. His multi-visit visa expired on 10 March 2003. Thereafter he raised various proceedings against the respondent in the English courts. On 13 January 2004 he claimed asylum in person. On 9 June 2005 he was issued with a work-permitted application registration card, his claim for asylum having been outstanding for more than 12 months. He was allowed to keep the work permission until the determination of his claim. His claim was refused on 23 August 2005, but that decision was withdrawn on 8 February 2006 because it had been incorrectly served. On 2 August 2006, however, his asylum claim and his human rights claim were refused and were also certified as clearly unfounded in terms of section 94(2) of the Nationality, Immigration and Asylum Act 2002. The petitioner expressly stated at the hearing that he did not challenge the certificate of 2 August 2006. He appeared to suggest that it had been invalidated by the service upon him of a form in the course of the administrative removal procedure to which I am about to refer, but that suggestion appears to me to be obviously unsound.
[5] According to the respondent, the petitioner has a history of failing to comply with conditions as to residence and reporting. On 23 September 2005 he was issued with a notice of restriction requiring him to reside at a specified address and to report to a particular office. On 25 October 2005 and 28 November 2005 he was issued with notices warning him that he was liable to be detained because he had failed to report as required. In August 2006 he raised actions against the respondent in Edinburgh Sheriff Court which bore to be founded on the Data Protection Act 1998 and the Human Rights Act 1998. In November 2006, according to the respondent, the petitioner was evicted from an address in Edinburgh, was detained by the police after refusing to leave the property, and appeared in Edinburgh Sheriff Court on 6 November 2006.
[6] On 7 November 2006 the petitioner was served with form IS151A, which was a notice informing him of his immigration status. That was the first stage of the procedure for his administrative removal from this country to India. In view of his history of failing to comply with conditions as to residence and reporting, he was considered to be likely to abscond if released. The respondent accordingly made a detention order pending his removal (no. 6/2 of process). That is the order referred to in the heading of the petition.
[7] The only obstacle to the removal of the petitioner at that time was the absence of his passport or other travel document. According to the respondent, on 8 November 2006 an immigration officer attended at St Leonard's Police Station to complete an application for an emergency travel document in order to facilitate the petitioner's removal to India, but the petitioner refused to co-operate. An application was, however, completed. An emergency travel document may be issued by the Indian High Commission if they are satisfied that the subject of the application is an Indian national. The respondent's officials intended to send the application and an expired passport relative to the petitioner to the Indian High Commission, but they were sent in error to the Bangladeshi High Commission. This mistake was narrated, and an error in the transcription of the respondent's answers in the record was corrected, in an amendment of the respondent's answers which was moved by the respondent's counsel at the Bar. The petitioner opposed the motion for leave to amend, but since he was unable to demonstrate that he would be in any way prejudiced by the amendment, I allowed it. In any event, to complete the narration of the material facts, the petitioner is no longer detained. He brought the present petition at the end of December 2006, and on 11 January 2007 the respondent decided to grant him temporary admission subject to restrictions as to his place of residence and his reporting at a police station.
The orders sought
[8] The petitioner seeks a total of 17 orders. They are listed in statement 3 of the petition. The first is a declarator that the respondent's decision to detain the petitioner "is prima facie unlawful in terms of section 6(1) of [the Human Rights Act 1998] as being incompatible with the petitioner's human rights" under articles 5.1 and 5.2 in conjunction with article 14 of the European Convention on Human Rights. Of all the orders sought, this is the only one which is potentially relevant to the petitioner's claim that he has been wrongly detained. It is potentially associated with the tenth order sought, which is an order for compensation under section 8(2) and (4) of the 1998 Act and article 5.5 of the Convention. It is not, however, supported by relevant averments, as will appear later.
[9] The second order is for reduction of the decision of 7 November 2006. Since the petitioner is no longer detained, such an order would be entirely academic.
[10] The third is an order under section 8(1) of the 1998 Act requiring the respondent to grant indefinite leave to remain. No such order can be granted because in view of the certification of 2 August 2006 the petitioner has no right to remain in this country at all. As I shall explain, there are no relevant averments indicating that he has any such right. In any event it would be inappropriate, if not incompetent, for this Court in the exercise of its supervisory jurisdiction to require a particular order to be made.
[11] The fourth is "an interdict against the notice of removal directions and/or proposed notice of removal directions" and interim interdict, pending declarator and reduction. Interim interdict was refused in hoc statu by Lord Emslie on 12 January 2007. Before me the petitioner was unable to point to any justification for interdict.
[12] The fifth is an order for interim liberation: the petitioner's liberation, however, is no longer a live issue.
[13] Sixth, the petitioner asks for a declarator that a notice of 11 January 2007, the effect of which was to grant him temporary admission when his detention came to an end, is unlawful in terms of section 6 of the 1998 Act as being incompatible with his human rights under article 3 of the Convention, and declarator ad interim. This is incomprehensible: a grant of temporary admission can scarcely amount to torture or to inhuman or degrading treatment or punishment. Nothing in the petitioner's pleadings or submissions has elucidated or supported this claim.
[14] The seventh is an order requiring the respondent to grant indefinite leave to remain, and for an interim order. This is merely an echo of the third.
[15] The eighth is an order requiring the respondent to return the petitioner's cancelled and valid passports, and an interim order. This is not a matter for the supervisory jurisdiction of the Court. The same must be said of the ninth order sought, which is one requiring the respondent to...
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