Petition Of Zbigniew Gacek For Judicial Review Of A Decision Of The Secretary Of State For The Home De4partment To Decline To Accept That The Petitioner Has Made A Fresh Claim For Asylum
| Jurisdiction | Scotland |
| Judge | Lady Wolffe |
| Neutral Citation | [2015] CSOH 159 |
| Date | 25 November 2015 |
| Docket Number | P947/15 |
| Published date | 25 November 2015 |
| Court | Court of Session |
| Year | 2015 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 159
P947/15
OPINION OF LADY WOLFFE
In the petition
ZBIGNIEW GACEK
Petitioner;
for
Judicial Review of a decision of the Secretary of State for the Home Department to decline to accept that the petitioner has made a fresh claim for asylum
Petitioner: Forrest; Drummond Miller LLP
Respondent: Pirie; Office of the Advocate General
25 November 2015
Introduction
[1] In this petition for judicial review, as amended in the course of the hearing before me, the petitioner seeks reduction of:
- the decision of the Secretary of State for the Home Department (“the Secretary of State”) of 12 August 2015 to deport the petitioner (“the Deportation Decision”); and
- the decision of the Secretary of State, also of 12 August 2015, to certify in terms of regulation 24AA of the Immigration (European Economic Area) Regulations 2008 (“the Regulations”) that removal of the petitioner to Poland was not unlawful (“the Certification Decision”).
Pursuant to those decisions, on the 28 August 2015 the Secretary of State issued directions for removal of the petitioner from the UK to Poland on 3 September 2015. The Advocate General for Scotland is the appropriate law officer in terms of section 1 of the Crown Suits (Scotland) Act 1857 to be called as respondent in respect of decisions of the Secretary of State.
[2] At the procedural first hearing before me the respondent’s counsel resisted the fixing of a first hearing, as would normally be done at this stage, but sought dismissal of the petition tout court. He did so on two bases: first, that insofar as this petition related to the deportation decision, it was incompetent because the petitioner had an alternative remedy which he had failed to exercise (in terms of the respondent’s third plea-in law); and secondly, that insofar as this petition related to a challenge to the certification decision, it was of no practical utility (in terms of the respondent’s fourth plea-in-law).
Background
[3] After arriving in the UK in 2006 and working for a period of time, the petitioner obtained a certificate affirming his entitlement to work in the UK as a member of the EU in terms of an European Economic Area (“EAA”) registration. It is stated in the petition that the petitioner’s wife and family joined him in the UK in about 2007. The petitioner returned to Poland in about 2011 where he was convicted of offences and which resulted in his serving a one‑year term of imprisonment there. After his release in February 2013 he returned to the UK and resumed residence with his family.
[4] On 10 July 2015 the respondent sent the petitioner notice of liability to deportation. The petitioner resisted this on the basis that he had not been convicted of any offence in the UK. On 9 August 2015 the petitioner was arrested for motoring offences in the UK. He pled guilty and was fined. On 12 August the respondent issued a decision to deport the petitioner and also issued the certification decision. While the petitioner had a statutory right of appeal to the First‑tier Tribunal (“the FTT”) against the decision of the Secretary of State to deport him, he did not exercise that right of appeal. There is no statutory appeal afforded in respect of a certification decision. On 28 August 2015 the Secretary of State issued the directions for deportation. These were issued after the time for any timeous appeal to the FTT against the deportation decision had lapsed.
Statutory context
[5] The certification decision was taken by virtue of regulation 24AA of the Regulations, which came into force on 28 July 2014, and which provides:
“(1) This regulation applies where the Secretary of State intends to give directions for the removal of a person (‘P’) to whom regulation 24(3) applies, in circumstances where—
(a) P has not appealed … or
(b) P has so appealed but the appeal has not been finally determined.
(2) The Secretary of State may only give directions for P's removal if the Secretary of State certifies that, despite the appeals process not having been begun or not having been finally determined, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of P's appeal, would not be unlawful under section 6 of the Human Rights Act 1998 […],
(3) The grounds upon which the Secretary of State may certify a removal under paragraph (2) include (in particular) that P would not, before the appeal is finally determined, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.”
Scope of matters argued at the procedural hearing
[6] The respondent moved what essentially are preliminary pleas. The respondent’s counsel first addressed me under reference to rule 58.3 of the Rules of the Court of Session 1994 and paragraph 12 of the Practice Note No 2 of 2012 on the powers available to the court at this stage in a petition for judicial review. (It should be noted that this petition was raised before the new rules governing judicial review were brought into force.) The court had power to dismiss a petition without merit at this stage, for example on the grounds of incompetency. While the petitioner’s counsel was initially reluctant to engage with this contention, he accepted that it was open to the respondent to make the motion that he did and for the court to deal with it at this stage.
[7] I was not addressed on the merits of the petition which concerned whether or not the Secretary of State erred in law in having regard to the petitioner’s convictions within the UK (“the merits”). Accordingly, determination of the merits of the petition is outwith the scope of this decision.
Submissions for the respondent
[8] The respondent’s counsel began by referring to regulation 24AA, quoted in paragraph [5] above. Neither of the circumstances in regulation 24AA(1)(a) or (b) applied to the petitioner. This was because the petitioner never appealed the deportation decision, as he had a right to do within 14 days.
[9] The respondent’s counsel explained that, in general, the Secretary of State may take a decision to deport a person and a decision to certify under regulation 24AA at the same time as, indeed, she had done on 12 August 2015 in respect of this petitioner. On service of the deportation decision and certification decision on him, the Secretary of State had issued the deportation decision and given herself the power to remove the petitioner by certification, notwithstanding any right of appeal by the petitioner.
[10] If a person served with a decision to deport appeals that decision timeously, but is removed from the UK under certification, as is permitted in terms of regulation 24AA of the Regulations, the question that would then arise is: from where will the appeal by that deported person be made? This is because by regulation 29AA of the Regulations, a person deported under certification who has appealed may apply for temporary permission to return to the UK to appear in person. Subject to certain limitations, the Secretary of State is obliged to grant that permission. Alternatively, the person deported under certification may exercise an out of country appeal (“an OOC appeal”).
Incompetency of judicial review of the Deportation Decision
[11] Turning to the circumstances presented by this petition, the respondent’s counsel argued that in relation to the deportation decision this petition was incompetent. The petitioner had a statutory right of appeal against the deportation decision to the FTT but he had failed to exercise it. In those circumstances, judicial review of the deportation decision was incompetent. Further, in the circumstance of this case, where there was never any appeal against the deportation decision, then any challenge to the certification decision by way of judicial review is itself without any practical purpose. In these circumstances, the petitioner’s petition fell to be dismissed at this stage.
[12] In support of his contention that judicial review of the deportation decision was incompetent, the respondent’s counsel referred me to a recent decision of Lord Jones in MH (Bangladesh) v Secretary of State for the Home Department [2014] CSOH 143, and in which both counsel appearing before me had also appeared. He also referred to The Queen (on the application of Kiarie) and the Secretary of State of the Home Department [2015] EWCA Civ 1020.
[13] In MH (Bangladesh) Lord Jones dismissed a petition on grounds similar to which dismissal was sought before me. It is apparent from the report in MH that Lord Jones heard argument over several days and had the benefit of extensive reference to authorities on what he termed the “general principle”: namely, that in circumstances where a petitioner had an alternative remedy to challenge a decision but fails to avail himself of it, he may not thereafter challenge that decision by judicial review. Part of the decision in MH (Bangladesh) was taken up with discussion of what might be called a characterisation question: whether the availability of an alternative remedy rendered judicial review proceedings incompetent, or whether, though competent, the court retained a discretion to dismiss petitions for judicial review in such circumstances. Having regard to the nature of the supervisory jurisdiction invoked in an application for judicial review, I would be inclined to the latter characterization. I have not had the benefit of the fuller argument presented to Lord Jones and in the present case simply reserve my opinion on that issue. In any event, however characterised, the petitioner’s challenge to the deportation decision fell foul of the general principle and there were no special or exceptional circumstances to exclude the general principle.
[14] After a thorough review of the authorities in MH (Bangladesh), Lord Jones summarised the state of the law at paragraph [32], where he stated:
“32 In stating...
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