Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 16
P48/10	OPINION OF LORD BRAILSFORD in the Petition BN Petitioner; For Judicial Review of decisions of the Secretary of State for the Home Department to detain the Petitioner ­­­­­­­­­­­­­­­­­________________

Petitioner: Caskie; Drummond Miller

Respondent: Webster; Office of the Advocate General

2 December 2011

[1] The petitioner seeks Judicial Review of decisions by the Secretary of State for the Home Department to detain him. The Advocate General has appeared as respondent. The case called before me for a First Hearing on 25 November 2011. On that date counsel for the petitioner invited me to uphold his first, second and third pleas-in-law and reduce the decisions complained of. Counsel for the respondent invited me to uphold his first plea-in-law and dismiss the petition.

[2] The petitioner's submission was that the issues between the parties were matters of law. The respondent submitted that, whilst an issue of law undoubtedly underlay the matters in dispute, the factual background to these matters was of relevance and required to be considered. I agreed with the submission of the respondent in this regard. There was no material dispute between the parties as to that relevant factual background. An outline of that factual background is set forth in paragraph 5 of the petition. That material was supplemented by information in a document entitled "Bail Summary" which emanates from the UK Border Agency and comprises part of 6/1 of process. The terms of this document, and its underlying factual accuracy, were not in dispute. It is necessary that I give some indication of the factual background in order to give the views I will express in this opinion a meaningful context.

[3] The petitioner arrived illegally in the United Kingdom from France on 12 March 2003. He was found concealed inside a lorry. He was removed to France on 8 October 2003. On 13 November 2003 he returned illegally to the United Kingdom, again concealed in the back of a lorry. He has remained in the United Kingdom since that date. During the period since that date he has failed on a number of occasions to comply with the conditions of his residence imposed by the Secretary of State. During his period in the United Kingdom he has been convicted of a number of criminal offences. On 8 December 2004 he was convicted at Coventry District Magistrates Court of resisting arrest and obstructing a constable. He was sentenced to 20 days imprisonment. On 11 May 2005 he was convicted of affray at Coventry District Court and sentenced to 18 months imprisonment and the forfeiture of a knife. On 5 September 2006 he was convicted of failing to surrender to custody at an appointed time at Coventry District Magistrates Court and was fined. On 24 April 2007 he was convicted at Coventry District Magistrates Court of driving whilst disqualified and received a community order with an unpaid work requirement. On the same date he was also convicted of driving a vehicle whilst uninsured. On 11 March 2008 he was convicted at Coventry District Magistrates Court of disorderly behaviour and using threatening and abusive words likely to cause harassment and was fined. On 3 April 2008 he was convicted at Coventry Crown Court of one count of burglary with intent to steal and two counts of burglary and theft. He was sentenced to 21 months imprisonment on each of these charges. Against the foregoing background of offending the UK Border Agency concluded, and proceeded upon the basis, that the petitioner was a person upon whom no reliance should be placed of complying with any conditions of release. It followed that upon his release from imprisonment following the said convictions in 2008 he was remanded and detained. He was released from such detention on 12 March 2010 following a First Hearing in this court on 5 March 2010 in the present proceedings. On 1 May 2010 he was charged with a further offence of burglary and, as a consequence thereof, was detained by the Secretary of State on 28 May 2010. He was convicted of the said offence on 13 August 2010 and sentenced to 7 weeks imprisonment. He has remained in custody since 28 May 2010. The total period the petitioner has been in custody pending deportation reached 18 months on or about 1 November 2010.

[4] Against that factual background the petitioner's submission was that his detention having exceeded 18 months it had become unlawful and he should consequently be released pending deportation. The Secretary of State's actions in continuing to detain the petitioner pending deportation were said to be unlawful by reason of contravention of European Customary Law et separatim breach of Article 5 of the European Convention on Human Rights.

[5] The relevant law underlying this dispute is set forth in section 5 of the Immigration Act 1971. That section provides that the provisions of Schedule 3 to that Act are to have effect with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and with respect to the detention or control of persons in connection with deportation. Schedule 3, paragraph 2(3) provides:

"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) and (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)."

The application of that provision has been authoritatively considered by Woolf J in R v Governor of Durham Prison ex parte Hardial Singh 1984 1 WLR 704 at 706 as follows:

"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."

That formulation of the law has been accepted in Scotland in AM, Petitioner [2010] CSOH 111. On the basis of this authority it is patently clear that the right of the Secretary of State to detain a person pending deportation is not unfettered. The intended deportee may only be detained for a period that is reasonable having regard to all the circumstances of the case. Moreover if, before the expiry of such reasonable period, it becomes apparent to the Secretary of State that he will not be able to affect deportation within a reasonable time then he should not seek to exercise the power of detention. The Secretary of State must, further, act with reasonable diligence and expedition to effect removal. These constraints imposed upon the Secretary of State as a matter of law appear to me to be relevant, sensible and consistent with principles of substantive justice. Clearly they would operate in the present case. In this regard I was informed that the detention of the petitioner is reviewed on a monthly basis. I was provided with a copy of the most recent "Detention Review" relevant to the petitioner and dated 21 October 2011 (number 7/31 of process). This was a relatively full document running to some five pages examination of which showed that the petitioner's case was considered by a responsible official who had regard to all the circumstances of his continued detention. The document indicated that a subsequent review was due on 18 November 2011. That review would, presumably, have taken place by the date of the hearing before me. I was however informed that the written review report was not to hand at the date of the hearing.

[6] It is apparent from the foregoing that as a matter of UK domestic law protection of an individual in the position of the petitioner is provided for, in the method described above, by the application and interpretation of section 5 of the Immigration Act 1971. Application of these principles would insure that the petitioner's detention was administratively reviewed on a monthly basis. In the event that such review was regarded by the petitioner as unreasonable or unjustified then there would be an opportunity to challenge detention by means of judicial review on, effectively, a monthly basis.

[7] The petitioner has expressly chosen not to challenge his continued detention by the route I have described. In terms of paragraph 6 of the present petition the petitioner accepts that, against the factual background I have described, his "deportation and his detention pending that deportation would normally be regarded as reasonable, rational and lawful by the Secretary of State and this court." The challenge is therefore made by the routes I have already stated, that is an importation of European Customary Law and an alleged breach of Article 5 of the European Convention on Human Rights. I now turn to set forth the basis upon which these routes are said to be incorporated into UK law.

[8] In this regard it was submitted that there were a number of directives concerning immigration and asylum law. The most recent of these provisions was Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third country nationals. The Directive defined third country nationals and the Recitals to the Directive indicate the purposes of the Directive which include, "clear, transparent and fair rules...to provide for an effective return policy as a necessary element of a well managed migration policy..." that "the use of detention for the purpose of removal should be limited and subject to the principles of proportionality with regard to the means used and objectives pursued..." that "third country nationals in detention should be treated in a humane and dignified manner with respect for their fundamental rights and in compliance with international and national law...". Recital 26 noted in particular:

"...moreover, in accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community, and without prejudice to Article 4 of the said Protocol, the United Kingdom is not taking part in the adoption of this Directive and is therefore not bound by it in its entirety or subject to its application."

[9] It is plain from this provision that the United Kingdom has opted out from this Directive and is accordingly not bound by it or required to enact any of its provisions in law. It is worth observing, as was done by Lord Menzies in HCS, Petitioner [2010] CSOH 151 that in addition to these provisions relating to the opt out for the United Kingdom and Ireland "there are special provisions relating to Denmark, Ireland, Norway, and to a lesser extent Switzerland and Lichtenstein."

[10] Notwithstanding that it was plain, and accepted by counsel for the petitioner, that the Directive had no direct effect on UK law it was drawn to my attention that the provisions therein in relation to "Detention for the Purpose of Removal" contained in Article 15 bore what was submitted to me to bear "remarkable similarity" to the domestic law of the UK on this subject as outlined in this opinion. It is certainly fair to observe that Article 15 of the Directive provided for detention as ordered by administrative or judicial authorities and for the provision of efficient and speedy provisions for judicial review of such decisions. These are features which, as I have already outlined, appear to be present in UK domestic law. It was however further observed by counsel for the petitioner that there was one feature of the law as set forth in the Directive which was not matched in UK domestic law and that was the provision for what was described as a "bright line" in respect of maximum periods of detention. In terms of the Directive the maximum period of detention was said to be 6 months in respect of most cases with an extension provision to 18 months in circumstances where there was (a) a lack of cooperation by the third country national concerned or (b) delays in obtaining the necessary documentation from third countries. Counsel then proceeded, by reference to a full, helpful and detailed written submission, to set forth the method whereby this Directive had been given effect in the other signatory countries to the European Union. I need not rehearse the details of this submission. It will suffice to state that in no European jurisdiction is there a permitted period of detention in excess of 18 months. Periods of permitted detention range from a minimum of 32 days in France to a maximum of 18 months in a number of other countries. Within that fairly wide range there are a variety of stipulated maximum detention periods.

[11] The purpose of proceeding in this way was counsel for the petitioner's submission to the effect that the requirement of a maximum period of detention of 18 months for persons awaiting deportation had become part of customary international law.

[12] The requirements necessary to elevate a practice to customary international law were discussed in R (European Roma Rights) v Prague Immigration Officer [2005] 2 AC 1. In that case Lord Bingham of Cornhill said:

"23. The conditions to be satisfied before a rule may properly be recognised as one of customary international law have been somewhat differently expressed by different authorities, but are not in themselves problematical. Guidance is given by the International Court of Justice in the North Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) [1969] ICJ REP 3, paras 70-71, on the approach where a treaty made between certain parties is said to have become binding on other states not party to the treaty:

'70 The court must now proceed to the last stage in the argument put forward on behalf of Denmark and the Netherlands. This is to the effect that even if there was at the date of the Geneva Convention [on the Continental Shelf 1958] no rule of customary international law in favour of the equidistance principal, and no such rule was crystallized in Article 6 of the Convention, nevertheless such a rule has come into being since the Convention, partly because of its own impact, partly on the basis of subsequent state practice, - and that this rule, being now a rule of customary international law binding on all States, including therefore the Federal Republic should be declared applicable to the delimitation of the boundaries between the parties respective continental shelf areas in the North Sea.

71 In so far as this contention is based on the view that Article 6 of the Convention has had the influence, and has produced the effect, described, it clearly involves treating that Article as a non-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to become binding even for countries which have never, and do not, become parties to the Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognised methods by which new rules of customary international law may be formed. At the same time this result is not likely to be regarded as having been attained.'

The relevant law was, I think, accurately and succinctly summarised by the American Law Institute in its Restatement of the Foreign Relations Law of the United States (Third) Volume 1, 1986, para 102(2) and (3):

'(2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.

(3) International agreements create law for the states party thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted.'

This was valuably supplemented by a comment to this effect:

'c. opinio juris. For a practice of states to become a rule of customary international law it must appear that the states follow the practice from a sense of legal obligation (opinio juris civi necessitates): a practice that is generally followed but which states feel legally free to disregard does not contribute to customary law. A practice initially followed by states as a matter of courtesy or habit may become law when states generally come to believe that they are under a legal obligation to comply with it. It is often difficult to determine when that transformation into law has taken place. Explicit evidence of a sense of legal obligation (e.g. by official statements) is not necessary; opinio juris may be inferred from acts or omissions.'

It is in my opinion clear, applying these principles, that even if the interpretation I have put on the Refugee Convention is accepted as correct, that is by no means the end of the appellants' international law argument. For the Convention was made more than half a century ago. Since then the world has changed in very many ways. The existence of the Convention is no obstacle in principle to the development of an ancillary or supplementary body of law, more generous than the Convention in its application to those seeking asylum as refugees. That essentially, is the argument advanced for the appellants."

The requirements set forth by Lord Bingham in the aforequoted passage were all said by the petitioner's counsel to be satisfied in the present case. In particular, apart from the UK and Ireland, universal acceptance of time limits on detention for persons with no legal authority to remain in a country up to a maximum of 18 months indicated that such limitations were now part of the prevailing opinio juris in Europe.

[13] The second stage of the petitioner's argument proceeded on the basis that the continued detention of the petitioner after the expiry of 18 months constituted an infringement of his rights under and in terms of Article 5 of the European Convention on Human Rights. It was conceded by counsel for the petitioner that the issue of an 18 month absolute time limit for detention of persons pending deportation had not been considered by the European Court of Human Rights (ECHR). It was however submitted that the correct approach of this court was to proceed to consideration of this issue in the same way as the ECHR would decide this issue (R (SB) v Governors of Denbigh High School [2007] 1 AC 100 (at 114E-116H and 125D - 126C). The approach of the ECHR it was submitted would be to have regard to the terms of the said Directive of 2008 and, having regard to the consideration that 25 out of the 27 EU states had time limits up to a maximum of 18 months detention, conclude that that period was a maximum period of detention, failure to release beyond that period would amount to an unlawful restriction of a person's human rights.

[14] In response to these submissions counsel for the Advocate General submitted that the correct approach for this court to adopt was to consider whether the period of detention imposed upon the present petitioner was reasonable in all the circumstances (AAS v SSHD [2010] CSIH 10). Judged by this standard, and having regard to the petitioner's history in the UK as hereinbefore narrated, the detention passed the test of reasonableness in all the circumstances. Counsel for the respondent further submitted that there was no "bright line", as it was characterised by counsel for the petitioner, whereby 18 months was a maximum permissible period of detention of a person pending deportation. There was no justification for this in domestic law. The Directive of 2008 had, expressly and deliberately, not been adopted by the UK government. The UK government was not the only government which had opted out of the 2008 Directive. There were a wide variety of time periods imposed by other EU states, which indicated a widely differing approach to this issue rather than one uniform approach which would be a basic prerequisite before any argument that the matter had become customary international law could get off the ground. In any event the fact that the opt out on derogation exercised by the British government existed was an indication that it was negotiated and agreed by other EU members, a further indication to a lack of uniform approach to this issue.

[15] In regard to the argument under Article 5 of the European Convention on Human Rights counsel for the respondent first indicated, as had been accepted by counsel for the petitioner, that the ECHR had not yet considered this issue. Moreover it was not correct, as had been submitted by counsel for the petitioner, that the ECHR would simply look at the 2008 Directive and from that document decide that there was a maximum permissible detention period of 18 months. The ECHR would have regard to the practice in other European states. It would note and have regard to the negotiated and agreed opt-out from these provisions by the UK and other governments. Having regard to these considerations it could not be said that the approach of the ECHR would be to impose a maximum 18 month limit on periods of detention of persons awaiting deportation.

[16] It is apparent from the foregoing that the petitioner's argument rests on two propositions. Firstly that customary international law would impose a maximum period of detention for persons awaiting deportation of 18 months, this proposition being based on the application of the Directive of 2008 in 25 other European Union states. Second, that the petitioner's Article 5 rights have been infringed because, if and when asked the question, the ECHR would, again by having regard to the practice in other European states, conclude and rule that there was an 18 month maximum detention period. I am not satisfied that either of these arguments has merit. In relation to the first of those arguments it is plain that there is scope for importation of international customary law into domestic law. The criteria which require to be met before that can happen are set forth in the speech of Lord Bingham of Cornhill in R (European Roma Rights) (supra). It is plain from the speech of Lord Bingham that the importation of international customary law is not easily achieved or likely to be found to have occurred. In the present case it cannot, in my view, be said that there is one uniform time limit or standard applicable throughout the European Union in relation to the issue of detention of persons in a country without legal authority to remain. As counsel for the petitioner himself accepted there are a variety of different time limits in operation amongst the member states of the European Union. These different time limits are no doubt imposed for good and substantial reasons within their respective jurisdictions. The absence of one standard, or even one criteria whereby a standard can be achieved or calculated, seems to me to be fatal to the proposition suggested by the petitioner. I take comfort in reaching that view from consideration of the fact that, albeit obiter, the Inner House reached the same conclusion in Mbulawa v SSHD [2011] CSIH 53.

[17] I am equally satisfied that the petitioner's second argument does not succeed. The reasoning is, in my view, broadly similar to that in relation to the argument concerning importation of international customary law. The petitioner simply cannot point to one standard which is applicable in the European Union. Beyond that consideration regard must also be had to the fact that the United Kingdom has negotiated an opt-out from the Directive of 2008. This opt-out has been freely agreed by other states of the European Union. In my view that factor would require to be considered in the ECHR if it ever had to determine this issue. When those two factors are taken into account I do not consider that it can be said that the ECHR would conclude that there was a maximum permissible period of detention of 18 months for persons awaiting deportation.

[18] Having regard to the foregoing I will uphold the respondent's first plea-in-law and dismiss the petition.