Petition Of Hcs For Judicial Review Of A Decision To Detain The Petitioner
| Jurisdiction | Scotland |
| Judge | Lord Menzies |
| Judgment Date | 2010 |
| Neutral Citation | [2010] CSOH 151 |
| Docket Number | P1140/09 |
| Published date | 12 November 2010 |
| Court | Court of Session |
| Date | 12 November 2010 |
| Year | 2010 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 151 | |
| P1140/09 | OPINION OF LORD MENZIES in Petition of HCS Petitioner; for Judicial Review of a decision to detain the petitioner ________________ |
Petitioner: Bovey, Q.C., Forrest; Drummond Miller LLP
Respondent: Lindsay; C Mullin, Office of the Solicitor to the Advocate General
12 November 2010
Introduction
[1] The petitioner is a national of Somalia. He arrived in the United Kingdom on 2 March 2003 and applied for asylum. His claim was refused, he appealed against refusal, and his appeal was dismissed. His rights of appeal became exhausted on 20 January 2004. He remained in the United Kingdom, and between October 2004 and July 2006 he was convicted of several offences. On 28 October 2004 he was convicted of shoplifting and given a twelve month conditional discharge. On 2 March 2005, whilst on bail, he was convicted of burglary and theft and possession of cannabis and was given a six month community rehabilitation order. On 21 April 2005, again whilst on bail, he was convicted of robbery and sentenced to two years' imprisonment. On 14 July 2006 he was convicted of shoplifting and given an absolute discharge. A notice of intention to deport was served on the petitioner on 14 August 2007 and he was detained on 16 August 2007. A Deportation Order was served on him on about 16 January 2008. He has not appealed against the Deportation Order.
[2] Between January and May 2008 the respondent avers that arrangements were being made to remove the petitioner from the United Kingdom. On 19 and 20 May 2008 the petitioner applied to the European Court of Human Rights ("ECtHR") asking the court to suspend any plans to remove him from the United Kingdom. The ECtHR granted his request on 21 May 2008 and the respondent cancelled the removal directions, which had been set for 4 June 2008, upon receipt of this Order.
[3] By letter dated 21 October 2008 the ECtHR advised the respondent that all applications concerning expulsions to Somalia would be adjourned pending the decision in HH and Others (Mogadishu: Armed Conflict: Risk) Somalia [2008] UK AIT 00022. The Court of Appeal issued its judgment in HH and Others on 23 April 2010.
[4] The present petition proceedings were commenced on 4 September 2009. In these proceedings the petitioner seeks several orders, including declarator that the decision of the respondent to detain and continue to detain him is unlawful and irrational, reduction of the decision to detain and continue to detain, damages for wrongful imprisonment, and an order for liberation of the petitioner from detention. A diet of first hearing was fixed for 6 November 2009 but was discharged on the unopposed motion of the petitioner. A further diet of first hearing was fixed for 6 May 2010, but this was also discharged on the unopposed motion of the petitioner. The matter came before me on 8 June 2010 for a first hearing. Having heard counsel, and given counsel for the respondent an opportunity to make enquiries, on 11 June 2010 I granted the petitioner's motion (which was by that time unopposed) and ordered the respondent to liberate the petitioner ad interim on specified conditions. The respondent immediately complied with this order and liberated the petitioner ad interim.
[5] There remained outstanding issues between the parties. In particular, issues arose as to (i) whether the respondent's initial decision on about 16 August 2007 to detain the petitioner was lawful and reasonable, (ii) whether the respondent's subsequent monthly decisions to continue to detain the petitioner until he was liberated by this court were lawful and reasonable, and (iii) if the answer to either of the above questions is in the negative, quantification of damages.
[6] Both counsel helpfully provided the court with written outline submissions (Nos.13 and 14 of process). I do not seek to repeat these verbatim here, but have taken account of their whole content, as well as everything said in oral submissions.
Submissions for the petitioner
[7] Senior counsel for the petitioner began his submissions on 8 June 2010 with three propositions, the third of which was concerned with the argument for interim liberation and which I need not repeat here. The other two remain relevant and are as follows:
(1) The detention of the petitioner ceased to be for the purpose of deportation when a Rule 39 direction was given by the ECtHR on 21 May 2008, and it has accordingly been in violation of Article 5 and unlawful since then.
(2) The period set by the European Union in relation to its common immigration policy is a proper measure of a reasonable period for detention, notwithstanding that the United Kingdom is not a party to that policy. The detention of the petitioner therefore ceased to be for a reasonable period after eighteen months (ie 16 February 2009), since which date it has been unreasonable and unlawful and separately in violation of Article 5.
Reference was made to the Opinion of an Extra Division in AAS v Secretary of State for the Home Department [2010] CSIH 10, 2010 SC 383, a case in which the Inner House declined to hold that a period of twenty two months between the detention of the petitioner and the decision of the court was unreasonable. Senior counsel then turned to the facts of the present case, some of which are rehearsed in the introduction above. The petitioner had applied for bail on six occasions between July 2008 and February 2010, but on each occasion his application was refused. A detention review was carried out in May 2010, which described the case as "finely balanced" but reached the conclusion that his detention should be maintained for a further twenty eight days.
[8] In support of his first proposition, senior counsel referred me to the case of Gebremedhin v France (Application No.25389/05) and to R on the application of WL (Congo) v Secretary of State for the Home Department [2010] EWCA Civ 111 (particularly at paragraph 61, and the quotation from Saadi [2002] UKHL 41, (2008) 47 EHRR 17). After the issuing of the Rule 39 notice on 21 May 2008, the petitioner's detention was referable to the procedures before the ECtHR, and not to any underlying deportation procedures.
[9] In support of his second proposition, senior counsel referred me to Directive 2008/115/EC and in particular to paragraphs (12), (16), and (26) of the recital, and to Article 15, which provides that detention must be for the purpose of removal. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence (paragraph 1). When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately (paragraph 4). A period of detention may not exceed six months except that this may be extended for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to a lack of co-operation by the third country national concerned, or delays in obtaining the necessary documentation from third countries (paragraphs 5 and 6). This Directive imposed a much stricter timetable than had been discussed in the courts of the United Kingdom. It sets out EU policy and is indicative of international standards. Senior counsel accepted that there was express provision in the Directive that (like some other states) the United Kingdom would not take part in the adoption of the Directive and was therefore not bound by it in its entirety or subject to its application. However, in the course of discussion senior counsel accepted that the Directive could be used as a yardstick or a cross-reference for the courts of the United Kingdom to assist them in deciding what constitutes a reasonable period of detention.
[10] I was referred to the case of Kadzoev (Case C-357/09) PPU, a decision of the Grand Chamber of the European Court of Justice on 30 November 2009. In that case Mr Kadzoev was arrested on 21 October 2006 and placed in a detention centre on 3 November 2006. Directive 2008/115/EC was not transposed into domestic Bulgarian law until 15 May 2009; before this transposition, detention in a detention centre was not subject to any time limit. He was still detained in the detention centre as at the date of the Grand Chamber's judgment on 30 November 2009. The court held that time spent in detention before the transposition of the Directive into domestic law counted towards the maximum permissible period of detention under Article 15, and that time spent in detention pending judicial review or appeal proceedings into the lawfulness of deportation or detention also counted towards the maximum permissible period. Eighteen months was the absolute maximum period of detention permitted under the Directive, regardless of any factors. In the present case, the eighteen month period expired on 16 February 2009.
[11] I was also referred to Raza v Bulgaria (Application No.31465/08), a decision of the European Court of Human Rights on 11 May 2010. In that case Mr Raza remained in custody between 30 December 2005 and 15 July 2008, that is, more than two and a half years. All of this detention occurred before Direction 2008/115/EC was transposed into domestic law. The court held that any deprivation of liberty under Article 5, paragraph 1(f) of the Convention will be justified only for as long as deportation proceedings are in progress, and if such proceedings are not prosecuted with due diligence, the detention will cease to be permissible. In other words, the length of the detention for this purpose should not exceed that reasonably required. The court contrasted the circumstances of that case with those in Chahal v The...
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