R v. Secretary of State for the Home Department, Ex parte Jaswinder Singh

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte JASWINDER SINGH

31 January 1996 Outer House of the Court of Session: Lord Gill Illegal entrant-detained pending hearing of application for judicial review-whether contrary to Secretary of State's general undertaking not to remove an applicant for judicial review before application determined-whether detention contempt of court, Immigration Act 1971 s. 4(2)(d); sch. 2 para. 16(2). The applicant was a citizen of India. He had entered the United Kingdom illegally. He applied for asylum: his application was refused: he appealed. The special adjudicator refused him bail but that was granted by the court. His appeal was dismissed. He was refused leave to appeal to the Tribunal. He applied for judicial review of that refusal. Meanwhile the applicant was detained. He was advised of removal directions. When his application for judicial review became known to the authorities, the removal directions were withdrawn but, until he was released by mistake, the applicant remained in detention. Counsel submitted that the detention of the applicant was contempt of court. The Secretary of State had given a general undertaking that no steps would be taken to remove an applicant from the jurisdiction once the Secretary of State was aware that an application had been made for judicial review. Detention was an active ancillary to removal: it was a breach of the undertaking and thus a contempt of court. For the Secretary of State it was submitted that the general undertaking was that an applicant would not be removed from the United Kingdom, not that he would not be detained in the meantime.

Held:

1. The undertaking was not formally given in foro: it was not a matter of public record: it was more akin to a general policy than to an undertaking given to a court: M v Home Office distinguished.

2. There had been no contempt of court in detaining the applicant pending the hearing of his second application for judicial review.

A Hardie QC Dean of Faculty and P Macdonald for the petitioner

Miss S J O'Brien for the respondent

Case referred to in the judgment:

M v Home Office [1994] 1 AC 377: [1993] 3 All ER 537.

LORD GILL:

The petitioner seeks judicial review of a decision dated 26 October 1995 made by the President of the Immigration Appeal Tribunal refusing him leave to appeal to that Tribunal against a decision of a special adjudicator. The respondent is the Right Honourable Michael Howard QC MP, Secretary of State for the Home Department. The following motion has been enrolled on behalf of the petitioner:

"To ordain the respondent to appear at the Bar to explain his contempt in respect of his failure to obtemper his general undertaking not to do anything towards the removal of someone who has a judicial review pending into a decision when that petition is known to the respondent; and to dispense with Rule of Court 23.3(3)."

The petitioner avers that he entered the United Kingdom illegally on 12 February 1994. He applied for political asylum on 17 May 1994. His application was refused in August 1995 and a removal notice was served upon him. He appealed to a special adjudicator against the making of removal directions. His appeal was heard in Glasgow on 2 October 1995. By a determination dated 19 October 1995 the appeal was refused. The petitioner then applied for leave to appeal to the Immigration Appeal Tribunal. By a determination dated 26 October 1995 the President of the Tribunal refused leave to appeal. That is the decision complained of. I need not go into the grounds on which the decision is challenged. This is the second petition presented to this court by the petitioner. The first was a petition for judicial review of the decision of the special adjudicator to refuse bail. On 22 August 1995 a first order was granted in that process together with an order for interim liberation. The order for interim liberation was thereafter varied twice. While that petition was in dependence, the special adjudicator made the substantive decision to refuse the appeal. The respondent accordingly enrolled for dismissal of the first petition on the view that it had been overtaken by events. The motion for dismissal was not opposed. Decree of dismissal was pronounced on Friday 8 December 1995. As matters then stood, there was no longer any judicial challenge to the procedures that had been followed through under the immigration legislation in respect of the petitioner. The petitioner's status as an illegal entrant was not disputed. He was therefore open to the normal administrative procedures for his removal from the United Kingdom. At that date the petitioner remained at liberty by virtue of an interlocutor in the first petition. Later on Friday 8 December the present petition was lodged. Since the petitioner was still at liberty the petition did not crave any interim order. A first order in normal form was pronounced by Lord Prosser. In the course of that day a copy of the petition was faxed to the office of the Solicitor to the Secretary of State and to the immigration office at Glasgow Airport, together with intimation that a first order had been granted. In the course of the afternoon, a representative of the petitioner's solicitors handed a copy of the petition to a senior solicitor in the Scottish Office, Mr. Ian Harvie, and informed him that a first order had been obtained. On Saturday, 9 December the petitioner was detained by officers of the respondent's Immigration Service. At about 2.30 pm on the same day removal directions were served on him specifying that he would be removed on a flight to London Heathrow at 9.45 pm on Monday, 11 December. About two-and-a-half hours after the detention of the petitioner, the respondent's staff at Glasgow Airport cancelled the removal directions; but they did not recall the petitioner's detention. On Monday 11 December the petitioner's solicitors discussed the case with senior immigration staff at Glasgow Airport and with the respondent's solicitors. The petitioner's solicitors were told that the petitioner would not be released from custody, but that if he applied for interim liberation on caution of £5,000, being the sum still lodged in court in connection with his earlier petition, that application would not be opposed. Thereafter the petitioner was released by mistake. By coincidence, on Friday 8 December Lord Prosser had granted interim liberation to another client of the petitioner's solicitors, also called Jaswinder Singh. When the certified copy interlocutor in the other case was faxed to Greenock Prison, the prison authorities asked the petitioner's solicitors for the date of birth of the client who was to be liberated. The petitioner's solicitors referred to the wrong file and gave the present petitioner's date of birth to the prison authorities. The petitioner was thereupon released. He remains at liberty.

The case for the petitioner

At the hearing on the motion, the learned Dean of Faculty asserted on behalf of the petitioner that in numerous unreported cases the respondent through counsel has repeatedly intimated a general undertaking that no steps will be taken towards the removal from the United Kingdom of someone such as the petitioner once the respondent is aware of the existence of a petition for judicial review. On the basis that that is the nature of the undertaking, the learned Dean argued that the detention of the petitioner was an action ancillary to, and a step towards, his removal from the United Kingdom (Immigration Act 1971 s. 4(2)(d); schedule 2, paragraph 16(2)). It was therefore a prima facie breach of the respondent's undertaking and as such a prima facie contempt of this court by the respondent in his ministerial capacity. (M v Home Office [1994] 1 AC 377). The respondent should therefore be ordained to appear, personally or by counsel, at the Bar.

The case for the respondent

The undertaking

Counsel for the respondent stated that the general undertaking given by the respondent is that he will refrain from removing or deporting a person who has raised proceedings for judicial review unless and until those proceedings have been finally determined in the respondent's favour. She insisted however that there is no undertaking in such cases not to detain ad interim a person who may otherwise be lawfully detained.

The respondent's explanation

The respondent's explanation is that when the officers of the immigration service detained the petitioner and served removal directions on him, they were unaware that he had lodged the present petition earlier that day. Counsel for the respondent pointed out that the present petition makes no reference to the earlier proceedings. Her instructions were that if it had done so, the respondent's staff would have been alerted to the significance of their existing case file. The difficulties of the respondent's staff were added to by the fact that in the documents sent to the respondent the petitioner's solicitors did not quote any of the several case references by which the petitioner could have been identified. Mr. Harvie, the solicitor to whom the copy of the petition was given on 8 December, does not deal with immigration cases and was unaware of the first petition that had been dealt with that day. Since the present petition did not seek any interim order or allege that the petitioner's detention or removal was imminent, it was reasonable for him to conclude, as he did, that consideration of the petition by his colleagues could be deferred over the weekend. Counsel for the respondent stated that the respondent's staff at Glasgow Airport had, on receipt of the petition, provisionally filed it with a file relating to another immigrant of the same name. This was entirely understandable given the number of cases with which they have to deal and the fact that the petitioner's agents had not told them of the earlier proceedings. Within two-and-a-half hours of the petitioner's detention the respondent's staff discovered the mismatch on the file and were able to identify the petitioner as the Jaswinder Singh who had lodged the present petition. On their own authority they at once cancelled the removal directions. To demonstrate the extent of the respondent's administrative difficulties, counsel informed me that in the Glasgow Airport office alone the immigration service had files on six current and six spent applications relating to persons named Jaswinder Singh; that in the London office 17 members of staff were engaged in co-ordinating files relating to persons named Singh; and that there were in all about 2,500 files relating to persons named Jaswinder Singh. The respondent's explanation has not been contradicted on any factual point by the learned Dean and I accept it as true.

Decision

The submissions of counsel were confined to the terms of the respondent's undertaking and to the question whether it had been breached. In my opinion, the motion raises a more fundamental question. The respondent's so-called undertaking, whatever its terms, has not been formally given in foro and recorded in the minute of proceedings in this or, as far as I am aware, any other process. Both sides agree that it is not a matter of public record. In my view, the so-called undertaking is more akin to a general statement of policy than to an undertaking of the kind commonly given to the court in applications for interim interdict. The submissions of counsel proceeded on the assumption that a breach of the alleged undertaking was one that this court could punish as a contempt; but in M v Home Office (supra), on which the learned Dean relied, the contempt consisted in a breach by the Minister of a specific order of the court. I have not been referred to any authority that establishes that breach of an undertaking not formally given to and recorded by the court in relation to a specified individual or a group of individuals can constitute a contempt of court. I reserve my opinion on that question. On the submissions of counsel, the first question to be decided is as to the nature of the undertaking given by the respondent. Since the petitioner seeks to have the respondent found in contempt, it is for the petitioner to satisfy the court that the undertaking is in the terms alleged by him. Where a general undertaking given by a minister of the Crown is not formally recorded in any publicly available source and where the parties differ as to its terms the court should proceed, in my opinion, on the basis that the terms of the undertaking are those given to it by counsel for the minister. I should add that the terms of the undertaking given to me by counsel for the respondent are in accordance with my own understanding of the respondent's position as intimated to me in other cases. Moreover, an undertaking in those terms makes better sense if, as I understand it, the purpose of the undertaking is to prevent judicial review proceedings from being made futile by the removal of the petitioner from the jurisdiction. That interpretation is consistent with the tenor of rule 386 of the Immigration Rules, which applies in the case of a deportation order. On the other hand, the interpretation for which the learned Dean contends could lead to surprising and, in my view, unreasonable results. On that interpretation, an applicant for judicial review who had a proven record of hiding from the immigration authorities would be immune from detention from the moment when his petition was lodged in court. Moreover, since the petitioner's interpretation of the undertaking would apply to the taking of all steps directed towards the removal of an applicant for judicial review, it would disable the respondent's staff from taking other preparatory administrative steps with a view to having removal arrangements in place if the petition should be refused. Proceeding on the basis of the respondent's version of the undertaking, I consider that the respondent's staff have not breached it. If the actings of the respondent's staff had constituted a breach of the undertaking and if such a breach had constituted a contempt at all, I would have refused to take any action in respect of it. In the circumstances of this case the petitioner's solicitors should have made clear to the immigration service that the petitioner was the party who had brought the earlier proceedings. The petitioner's solicitors themselves have demonstrated how easily confusion can arise in a case like this. In my view, the respondent's staff were entirely blameless in this case. They acted efficiently and responsibly. It is to their credit that they were able to identify the petitioner as promptly as they did. I will therefore refuse the motion.

DISPOSITION

Application dismissed

Solicitors:

Skene Edwards WS; Solicitor to the Secretary of State for Scotland