Nemah Shehadeh V. The Advocate General For Scotland
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Neutral Citation | [2012] CSOH 196 |
| Court | Court of Session |
| Published date | 20 December 2012 |
| Year | 2012 |
| Date | 21 December 2012 |
| Docket Number | A603/10 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 196 | |
| A603/10 | OPINION OF LORD DOHERTY in the cause NEMAH SHEHADEH Pursuer; against LORD WALLACE OF TANKERNESS QC, THE ADVOCATE GENERAL FOR SCOTLAND Defender: ________________ |
Pursuer: A.R.Gibson; Drummond Miller LLP, Solicitors
Defender: Lindsay QC; The Office of the Solicitor to the Advocate General for Scotland
21 December 2012
Introduction
[1] In this ordinary action the pursuer sues the defender as representing the interests of the Secretary of State for the Home Department in Scotland. She seeks damages for wrongful detention. She avers that she is a stateless person of Palestinian origin who entered the United Kingdom in 2002 "using a properly issued travel document for Palestinians from the Jordanian Authorities". She had a visitor's visa, but became an overstayer. In 2005 she was detained attempting to use a false French passport to leave the United Kingdom. On 4 November 2005 she was convicted at Hillingdon Magistrates Court of using a false instrument. She was sentenced to four months imprisonment and her deportation was recommended. On 26 February 2006 she claimed asylum. Her application was refused by letter dated 24 May 2007. Her appeal against that refusal was dismissed on 14 August 2007. Her appeal rights were exhausted on 6 December 2007. Meanwhile, she had been detained by immigration officers on 10 December 2006 for the purposes of deportation. On 19 January 2008 the Secretary of State removed her to Jordan but the Jordanian authorities refused to accept her. On her return to the United Kingdom she was again detained by the Secretary of State. She continued to be detained until 27 August 2009 when she was granted bail. She avers that her detention between 26 January 2008 and the date of her release on bail was unlawful. Shortly put, the grounds of illegality are averred to be that her detention during that period was in breach of the Hardial Singh principles; that it violated her article 5 ECHR rights; and that the defender and her officials "acted contrary to the Human Rights Act 1998, section 6 as a result of the operation of a policy of detention that was inconsistent with her published policy; was unlawful; contained an all but irrefutable presumption in favour of detention and failed to give consideration to the pursuer's circumstances".
[2] The matter came before me for a Procedure Roll Hearing. At that hearing counsel for the defender submitted that the defender's preliminary pleas to the competency of the action, and to the relevancy of the pursuer's averments, should be sustained, and that the action should be dismissed. Counsel for the pursuer sought a proof before answer. He also submitted that certain of the defender's averments were irrelevant and lacking in specification and should not be admitted to probation. After I had taken the case to avizandum the decision of the Supreme Court in Ruddy v Chief Constable, Strathclyde Police [2012] UKSC 57 was issued, and rule of court 58.12 came into force. The case was put out by order and I heard further argument.
[3] It was common ground that the relevant statutory power to detain pending deportation is contained in Schedule 3 to the Immigration Act 1971 (as amended). Paragraph 2 provides:
".....
(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.
(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)...."
Parties were also at one that the exercise of the power to detain by the Secretary of State is subject to the well established principles identified by Woolf J in R v Governor of Durham Prison, Ex parte Hardial Singh [1984] 1 WLR 704 at 706:
"Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend on the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention."
The Hardial Singh principles were approved by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 and were subsequently distilled by Dyson LJ in R (I) v Secretary of State for the Home Department [2003] INLR 196, para 46 into four propositions:
"i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
ii) The deportee may only be detained for a period that is reasonable in all the circumstances;
iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
iv) The Secretary of State should act with reasonable diligence and expedition to effect removal."
(See also R (Lumba)) v Secretary of State for the Home Department [2011] 2 WLR 671 per Lord Dyson SCJ at paragraph 22, and R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299 per Lord Brown of Eaton-under-Heywood SCJ at paragraph 93).
The parties' contentions
[4] I do not attempt to set out in full the all the arguments which were advanced. Each party lodged notes of argument. Not all of the points raised in these were insisted upon. What follows is an outline of the main submissions which were made.
Counsel for the defender's submissions
Competency
[5] The principal attack was to the competency of the action. The essence of the action - what it was truly about - was an attack on the lawfulness of the Secretary of State's decisions to exercise her power to detain the pursuer pending her deportation. That was the central issue. It could not be described as a collateral or ancillary issue in an action for damages. It was the very heart of the case. Unless the pursuer established that those decisions were unlawful she would have no right to damages. Review of the lawfulness of those decisions had to be by application to the supervisory jurisdiction. Reliance was placed upon McDonald v Secretary of State for Scotland 1996 S.C. 113, per Lord Clyde at p.116; Sidey Ltd Clackmannanshire Council 2010 SLT 607; Docherty v Scottish Ministers 2012 S.C. 150, per Lord President Hamilton at paragraphs 19-24; Ruddy v Chief Constable, Strathclyde Police [2012] UKSC 57, per Lord Hope at paragraphs 14-21. Here, like McDonald but unlike Ruddy, the claim was not in essence one of damages. Prior to any right to claim damages arising the unlawfulness of the detention had to be established. Whether the Secretary of State had acted unlawfully was truly what the action was about. It was true that, as in Ruddy, the pursuer here was not asking for any decision of the Secretary of State to be reduced and that her case was based on allegations of completed acts. However, unlike in Ruddy, the decisions to detain did need to be reviewed if they were to be found to have been unlawful. There was a need to review them to provide a basis for the damages claim. The defender's second plea-in-law (to the competency of the action) should be sustained and the action should be dismissed.
Relevancy
[6] The attack on the relevancy of the pursuer's averments was two-fold. The first submission was that the pursuer's averments were insufficient to support her case that the detention was unlawful as from 26 January 2008 (Article XIII of Condescendence). In this regard Mr Lindsay made clear that the main point was that it was suggested that the pursuer's averment (in Article IX of Condescendence) "On 4th July 2008 the Jordanian Authorities confirmed the pursuer was not a citizen of their country." was inconsistent with the averments in Article XIII of Condescendence. It was suggested that, taking the pursuer's pleadings pro veritate, they were not habile to prove that during the relevant period detention was unlawful. (A number of criticisms of the specification provided in certain parts of the pleadings were also advanced but it was not suggested that any of these matters were critical to the relevancy of the pursuer's case, nor was there any motion that those averments should not be admitted to probation). The second submission was that her averments relating her loss and to quantum of damages were inconsistent, and, accordingly, irrelevant. Her case was that she was unlawfully detained between 26 January 2008 and 27 August 2009, yet in Article XX of Condescendence she claimed damages based on loss of liberty from 10 December 2006 until 27 August 2009.
R.C. 58.12
[7] The pursuer had not moved the court to appoint the action...
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