In The Petition Of N.s. Against Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Philip,Lord Drummond Young,Lady Dorrian |
| Judgment Date | 06 November 2014 |
| Neutral Citation | [2014] CSIH 91 |
| Docket Number | P139/13 |
| Date | 06 November 2014 |
| Court | Court of Session |
| Published date | 06 November 2014 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2014] CSIH 91
P139/13
Lady Dorrian
Lord Drummond Young
Lord Philip
OPINION OF THE COURT
delivered by LORD DRUMMOND YOUNG
in the petition of
N S
Petitioner and Respsondent;
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent and Reclaimer:
Respondent and Reclaimer: Lindsay, QC; Office of the Solicitor to the Advocate General
Petitioner and Respondent: Dewar, QC, Caskie; Drummond Miller LLP (for Bruce Short & Co, Solicitors, Dundee)
6 November 2014
[1] The petitioner was recommended for deportation from United Kingdom in 2005, and was detained by officials acting on behalf of the Home Secretary on 10 December 2006 and kept in detention until 27 August 2009. She now seeks damages for alleged wrongful detention. The proceedings originally took the form of an ordinary action, but following a procedure roll discussion in September 2012 it was determined that they should continue as a petition for judicial review. The petition came before the Lord Ordinary for a first hearing, and on 21 August 2013 the Lord Ordinary held that the petitioner had been unlawfully detained for a period of one year, between the end of August 2008 and 27 August 2009. The Lord Ordinary accordingly awarded for damages of £36,000, inclusive of interest to the date of decree. The Home Secretary has reclaimed against that decision.
The petitioner’s circumstances
[2] The petitioner is an ethnic Palestinian, having been born, according to her birth certificate, on 25 November 1954 in the West Bank, which had been annexed by Jordan in 1950 and was in 1954 under Jordanian control. She married in 1978, and her marriage certificate records her nationality as Jordanian. Thereafter she moved to Saudi Arabia with her husband; they are now separated. She was granted visas to enter the United Kingdom as a visitor on three occasions in 2000, 2001 and 2002. In the Home Secretary’s record of the issue of these visas it is stated that the petitioner’s nationality was Jordanian, and a Jordanian passport number was included in each case. She was issued with these visas on the basis that she was a Jordanian citizen. She entered the United Kingdom on 27 August 2002.
[3] She subsequently became an overstayer. On 21 October 2005 she was arrested at Heathrow Airport, along with her son, on the ground that they were both attempting to use false French passports to travel from the United Kingdom to Canada. She was charged with and in due course convicted of two offences arising out of the attempted use of false passports, namely using a false instrument and attempting to obtain services by deception. On 25 November 2005 she was sentenced to 4 months’ imprisonment on each charge, to run concurrently, with a recommendation by the sentencing judge that she should be deported on her release. She was released from prison on 20 December 2005, on completion of the custodial part of the sentence, but she was not detained or deported at that time. On 20 February 2006 the petitioner claimed asylum in the United Kingdom, but she failed to attend for an asylum screening interview and on 12 May 2006 an immigration official wrote to her to intimate that the Home Secretary had decided to deport her to Jordan. On 10 December 2006 she was detained at an address in London and served with notice of a deportation order. On 24 May 2007 her claim for asylum was refused.
[4] The petitioner then appealed to the Asylum and Immigration Tribunal, but the appeal was dismissed on 14 August 2007. She stated in the course of the appeal hearing that her Jordanian travel document had been lost, but was in any event of no value as it was merely a travel document and not a passport. The Tribunal found that the petitioner’s account of her history was not credible in a number of important respects. It further rejected a claim that the petitioner’s return to Jordan would constitute a breach of her rights under articles 3 and 8 of the European Convention on Human Rights. It was specifically found that ethnic Palestinians would not encounter difficulties in Jordan of such a nature that they would prevent the appellant’s deportation.
[5] On 19 January 2008 the Home Secretary removed the petitioner by air to Jordan. On arrival, she told Jordanian immigration officials that she was Palestinian, and as a result of that she was refused entry to Jordan. She avers that the Jordanian authorities also refused to allow her entry to transit to the West Bank as no arrangements had been made with the Israeli authorities who controlled that area. The petitioner was immediately brought back to the United Kingdom by immigration officials and returned to detention.
[6] Immigration officers remained convinced that the appellant was a Jordanian national, and they sought to confirm her identity and nationality with a view to having her removed successfully. Her continued detention was reviewed monthly by immigration officials, starting in January 2008. At the first review the authority for continued detention contain the following statement:
“I agree that the continued detention of this subject is proportionate as the subject only claimed that she was not from Jordan upon arrival there, hence her return to the UK. We should do all we can to confirm her identity in order to effect removal”.
Immigration officials requested the Jordanian Embassy to provide evidence of the petitioner’s nationality. The monthly reviews were optimistic that evidence that she was a Jordanian national would soon be received, which would enable a removal to proceed. Each month decisions were made to detain her on the ground that there was a risk that she would abscond if she were released.
[7] On 2 July 2008 the Jordanian Embassy advised that the petitioner was not a Jordanian national, but had only been issued with a temporary travel document by the Jordanian authorities. The petitioner was described as a “Palestinian National”. Following this advice, on 4 July 2008 the responsible official in the Home Secretary’s Criminal Casework Directorate (“CCD”) assessed the prospect of removal to Palestine within a reasonable time as “highly unlikely”, as such removal would require to be on a voluntary basis and the petitioner had refused to return. It was proposed that the petitioner should remain in detention but that she should be considered for release under rigorous contact management. The CCD Director agreed with this proposal.
[8] Nevertheless, the following detention review, in August 2008, made no reference to consideration for release. The official who reviewed her case stated that “we will be following up the option of documenting Ms S for removal to Palestine. This may take some time as she has previously been issued with a third country travel document (the Jordanian passport)”. The reviewing officer stated that there was a “clear and serious risk” that she would not comply in view of her “appalling immigration history”. Authority was granted to continue her detention. The detention review in September 2008 noted that the petitioner had been suggested for release under rigorous contract management but that no decision had yet been made. In the review for October 2008 it was noted that further inquiries were being made to the Jordanian Embassy to determine whether Jordan would reconsider her case as her son had been returned on a Jordanian passport. The Director, CCD, indicated that she had concerns regarding delay and requested that she should be advised urgently as to when the proposal to release on contact management had been put to the relevant official. The available documentation does not disclose any reaction to this observation, and there is no reference in subsequent detention reviews to the possibility of release with contact management.
[9] Monthly reviews continued into 2009. Further attempts were made to persuade the Jordanian Embassy to accept that the petitioner had Jordanian nationality. Nevertheless no progress was made to remove the petitioner to Jordan or the West Bank. In each of the reviews a decision was made that the petitioner presented a high risk of absconding and that detention should continue. On 28 May 2009 the petitioner made an application for bail to the Asylum and Immigration Tribunal, but this was refused in hoc statu on 2 June 2009. On 16 June 2009 the petitioner’s birth certificate was received by immigration officials. It had been sent to her at Dungavel immigration removal centre and was intercepted by officials there. The petitioner stated that she had only now found someone in the West Bank who would obtain a copy of her birth certificate. Nevertheless immigration officials regarded the appearance of the document at this time as sinister because the petitioner had previously stated that she did not know where her birth certificate was and could not obtain a copy in any way. The document was, however, accepted as genuine. The petitioner once again applied for bail, which was granted on 27 August 2009. Since then she has been at liberty and has remained in Scotland.
[10] On 2 October 2012 the Jordanian Ministry of Foreign Affairs advised that the petitioner was a Jordanian national holding a Jordanian national number, which was specified in the letter. Her father and sons were likewise all Jordanian nationals. In April 2013 directions were issued to remove the petitioner to Jordan. These were cancelled, however, as the petitioner claimed asylum on the ground that she had converted to Christianity. That claim was refused by the respondent on 18 March 2014. Appeal procedures have taken place since then, but it is not necessary for present purposes to consider these.
West Bank Palestinians
[11] The petitioner was born in the West Bank in 1954, and information about the nationality and residence status of Palestinians from the West Bank was available to the court and is recorded in the opinion of the Lord Ordinary. In 1954...
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