R v Secretary of state for the home department ex parte Jaswinder Singh
| Jurisdiction | Scotland |
| Judgment Date | 31 January 1996 |
| Date | 31 January 1996 |
| Court | Court of Session (Outer House) |
Outer House of the Court of Session
Lord Gill
A Hardie QC Dean of Faculty and P Macdonald for the petitioner
Miss S J O'Brien for the respondent
Case referred to in the judgment:
M v Home OfficeELRUNK [1994] 1 AC 377: [1993] 3 All ER 537.
Illegal entrant detained pending hearing of application for judicial review whether contrary to Secretary of State's general undertaking not to remove an applicant for judicial review before application determined whether detention contempt of court, Immigration Act 1971 s. 4(2)(d); sch. 2 para. 16(2).
The applicant was a citizen of India. He had entered the United Kingdom illegally. He applied for asylum: his application was refused: he appealed. The special adjudicator refused him bail but that was granted by the court. His appeal was dismissed. He was refused leave to appeal to the Tribunal. He applied for judicial review of that refusal. Meanwhile the applicant was detained. He was advised of removal directions. When his application for judicial review became known to the authorities, the removal directions were withdrawn but, until he was released by mistake, the applicant remained in detention.
Counsel submitted that the detention of the applicant was contempt of court. The Secretary of State had given a general undertaking that no steps would be taken to remove an applicant from the jurisdiction once the Secretary of State was aware that an application had been made for judicial review. Detention was an active ancillary to removal: it was a breach of the undertaking and thus a contempt of court.
For the Secretary of State it was submitted that the general undertaking was that an applicant would not be removed from the United Kingdom, not that he would not be detained in the meantime.
Held:
1. The undertaking was not formally given in foro: it was not a matter of public record: it was more akin to a general policy than to an undertaking given to a court: M v Home Office distinguished.
2. There had been no contempt of court in detaining the applicant pending the hearing of his second application for judicial review.
Lord Gill: The petitioner seeks judicial review of a decision dated 26 October 1995 made by the President of the Immigration Appeal Tribunal refusing him leave to appeal to that Tribunal against a decision of a special adjudicator. The respondent is the Right Honourable Michael Howard QC MP, Secretary of State for the Home Department.
The following motion has been enrolled on behalf of the petitioner:
To ordain the respondent to appear at the Bar to explain his contempt in respect of his failure to obtemper his general undertaking not to do anything towards the removal of someone who has a judicial review pending into a decision when that petition is known to the respondent; and to dispense with Rule of Court 23.3(3).
The petitioner avers that he entered the United Kingdom illegally on 12 February 1994. He applied for political asylum on 17 May 1994. His application was refused in August 1995 and a removal notice was served upon him. He appealed to a special adjudicator against the making of removal directions. His appeal was heard in Glasgow on 2 October 1995. By a determination dated 19 October 1995 the appeal was refused. The petitioner then applied for leave to appeal...
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