Petition Of Rasul Nabi Aka Rasul Nabi Rasul For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Neutral Citation | [2012] CSOH 61 |
| Published date | 05 April 2012 |
| Year | 2012 |
| Date | 05 April 2012 |
| Court | Court of Session |
| Docket Number | P929/10 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 61 | |
| P929/10 | OPINION OF LORD DOHERTY in the Petition of RASUL NABI, also known as RASUL NABI RASUL, Petitioner; for Judicial Review of Decisions of the Secretary of State for the Home Department to detain and to continue to detain the Petitioner. ________________ |
Petitioner: Caskie; Drummond Miller LLP.
Respondent: McIlvride; Office of the Solicitor to the Advocate General.
5 April 2012
Introduction
[1] The Petitioner is an Iraqi citizen. He entered the United Kingdom illegally on 7 January 2003 and claimed asylum. At that time he completed a Screening Form and a Bio-Data Information Form, and on 22 January 2003 his solicitors forwarded a witness statement from him. His asylum application was refused on 31 October 2003. He lodged an appeal against that decision on 24 October 2003. His appeal was dismissed on 11 February 2004. Permission to appeal to the Immigration Tribunal was refused on 30 June 2004. His appeal rights became exhausted on 16 July 2004. He was listed as an absconder on 2 September 2005. On 11 January 2007 he submitted representations applying for leave to remain in the United Kingdom in terms of Articles 2 and 3 of ECHR. On 22 June 2007 he submitted an application for indefinite leave to remain in the United Kingdom, claiming to have been granted exceptional leave to remain. He had at no time been granted exceptional leave to remain. On 26 November 2008 he was convicted of using a false instrument, failing to notify a change of circumstances, two charges of obtaining property by deception, and making a false representation. He was sentenced to a total of 15 months imprisonment. He was served with a Notice of Liability for Automatic Deportation on 5 March 2009. Subsequently it was decided that the Petitioner was not subject to automatic deportation (because none of the individual sentences for a single offence exceeded 12 months imprisonment) but that deportation would be conducive to the public interest. On 2 July 2009 he completed a Bio-Data Information Form in relation to his proposed deportation. He was detained under immigration powers from 11 July 2009. He was served with a decision to make a deportation order on 14 August 2009. The application made on 11 January 2007 was refused on 10 September 2009, as was his application for indefinite leave to remain. His appeal against the deportation order was dismissed on 18 November 2009. He exhausted his appeal rights (for the second time) on 26 November 2009. A deportation order was served on him on 15 January 2010. By representations dated 8 March 2010 he applied to have the deportation order revoked. On 11 June 2010 the Respondent refused to revoke the order. An application for bail on 13 July 2010 was refused.
[2] Between October 2009 and October 2010 the United Kingdom Government enforced the return of over 170 Iraqi nationals who had no legal basis to remain in the United Kingdom. About 50 of the 170 had indicated that they originated from the Kurdish Region of northern Iraq. That number included Iraqi nationals who originated from Kirkuk and Mosul. Those who were returned to Iraq were checked for eligibility to return and were cleared in advance with the Iraqi authorities.
[3] On 21 September 2010 the Upper Tribunal (Immigration and Asylum Chamber) had promulgated a country guidance determination on the application of Article 15(c) of Council Directive 2004/83/EC ("the Qualification Directive") to conditions in Iraq: HM & Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC). The appellants in that case had had their legal representation withdrawn at a very late stage, but the tribunal had nonetheless taken the decision to proceed with the hearing and to promulgate a country guidance determination.
[4] Rule 39 of the Rules of Court of the European Court of Human Rights ("ECtHR") provides:
"The Chamber or, where appropriate, its President, may, at the request of a party or any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interest of the parties or of the proper conduct of the proceedings before it."
The Petitioner was not party to proceedings before the ECtHR (and accordingly there were no Rule 39 interim measures in respect of any such proceedings). However, on 22 October 2010 the ECtHR gave notice to the United Kingdom Government and governments of other countries that, because of an increasing number of Rule 39 requests by applicants seeking to prevent their return to Baghdad and the reported recent deterioration in the security situation there, it considered it appropriate to apply Rule 39 in respect of any Iraqi challenging his return to Baghdad. It requested responses from affected governments by 29 October 2010. Timeous responses were submitted by the United Kingdom Government and governments of other affected countries, as a result of which the ECtHR was satisfied (during November 2010) that it would not be appropriate to grant Rule 39 interim relief on a blanket basis to all such applicants.
[5] The Petitioner could not be removed without first obtaining an Emergency Travel Document ("ETD") from the Iraqi authorities. In a pre-clearance exercise in June 2010 the Petitioner was not cleared by the Iraqi authorities. Those authorities were not satisfied that he was an Iraqi national or that his origins were as he claimed. On 30 June 2010 a documentation panel considered the Petitioner's case and it was decided that an assertive interview should take place with the Petitioner to obtain more specific information as to his origins. On 24 September 2010 the Petitioner was requested to submit any documentary evidence of his identity, or other official documentation from Iraq, but he claimed to have none. The assertive interview of the Petitioner took place on 25 October 2010. On 22 December 2010 the forms which the Petitioner had completed on 7 January 2003 and the statement forwarded on 22 January 2003 were brought to the attention of the officials dealing with the Petitioner's detention and deportation: prior to then they had been unaware of their existence. On 23 December 2010 an application for bail was refused. At the beginning of February 2011 the Petitioner was asked to write a short note in Arabic/Kurdish-Sorani stating his name, nationality and address, and declaring that he did not possess any documents but was now willing to return to Iraq. The information was to be submitted to Iraqi officials in order to obtain clearance for the Petitioner. By 3 February 2011 the Petitioner's representative had communicated the Petitioner's willingness to comply with this request. It was intended that the Petitioner be included in the pre-clearance exercise due to take place later that month, but it was thought unlikely that he would be accepted for it without the note which had been requested from him.
[6] The pre-clearance exercise was postponed on about 22 February 2011 due to the volatile political situation in Iraq. Despite repeated requests the Petitioner did not provide the note he had agreed to provide. The next pre-clearance exercise took place in June 2011. The Petitioner was interviewed by Iraqi officials on 10 June 2011. On 15 June 2011 they approved the issuing of an ETD for the Petitioner.
[7] During the period up to 10 June 2011 the Respondent's officials were endeavouring to assist the Iraqi authorities to confirm the Petitioner's identity and origins.
[8] Following the obtaining of the necessary ETD the Respondent arranged for the Petitioner to be returned to Iraq by charter flight on 21 June 2011. On that date the Petitioner and forty eight other applicants applied to the High Court in London for an interim injunction staying their removal to Iraq until 28 days after judgement was handed down by the Court of Appeal in HM (Iraq) and RM (Iraq) v Secretary of State for the Home Department (Case No. C5/2010/2842; on appeal [2011] EWCA Civ 1536) or until further order of the court. (The hearing in HM (Iraq) and RM (Iraq) v Secretary of State for the Home Department took place on 30 November 2011 and judgment was handed down on 13 December 2011. The Court of Appeal allowed the appeal and quashed the tribunal's determination. It held that the tribunal's exercise of the discretion to proceed was flawed by a failure to consider alternative ways of securing proper argument).
[9] The Petitioner's detention was the subject of Monthly Progress Reports and Detention Reviews between July 2010 and 4 August 2011. At each Review the legality of the Petitioner's continued detention was considered by the Respondent. On each occasion the Respondent concluded that the Petitioner's continued detention was justified.
[10] An application for bail made to an Immigration Judge was granted on 24 August 2011, with a requirement that the Petitioner reside at the address in the instance. At the time of bail being granted the Petitioner had been detained for two years and six weeks.
[11] In this Petition for Judicial Review the Petitioner seeks:
"(i) declarator that the decision of the Secretary of State to detain the Petitioner from 30th June 2010 until 24th August 2011was unreasonable et separatim irrational et separatim in breach of the United Kingdom's ECHR obligations and section 6 of the Human Rights Act 1998;
(ii) payment of the sum of £84,000 (EIGHTY FOUR THOUSAND POUNDS) in respect of his unlawful detention and in just satisfaction;
(iii) the expenses of the Petition;
(iv) such other orders as may seem to the court to be just and reasonable in all the circumstances of the case."
[12] The matter came before me for a First Hearing. Argument was restricted to the question whether declarator should be granted.
Contentions for the Petitioner
[13] Mr Caskie submitted that the detention of the Petitioner for the whole period between 30 June 2010 and 24 August 2010 was unlawful....
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