Monterosso v Secretary Of State For The Home Department, Re Application For Judicial Review [2000] ScotCS 251 (29 September 2000)

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Where leave to enter is refused, an immigration officer can, under paragraph 8, give directions for the removal of the person from the United Kingdom. It is further provided by the Schedule that :

[2] The petitioner is a Guatemalan national, aged 31. He has no right of abode in the United Kingdom. On 26^th February 2000 he arrived at Glasgow airport on a flight from Amsterdam. He was processed through Immigration. His purported reason for visiting was that he was a journalist and photographer and intended to do research for a short article on Scotland. He was given leave to enter the United Kingdom but was arrested whilst getting into a taxi outside the terminal. He was charged with criminal offences relative to the possession and importation of about 20 kilograms of cocaine. This is a very large consignment worth several million pounds at street level.

[3] On 27^th February 2000 the petitioner was served with a notice cancelling his leave to enter in terms of paragraph 6(2) (No. 6/1 of process). He was also given a notice of refusal of leave to enter (No. 6/2) in the following terms :

REMOVAL

DIRECTIONS

A I propose to give directions for your removal at a time and date to be notified by scheduled air service to Guatemala

B You are not entitled to appeal against refusal of leave on the above grounds....".

Still on the same day, the immigration officer issued directions to Air UK for the removal of the petitioner from the United Kingdom by scheduled air service to Guatemala "at a time and date to be notified" (No. 6/3). He also authorised the detention of the petitioner initially by Strathclyde Police at Greenock Police Station (No. 6/4) although I was advised that this would have been revised to authorise his current detention in Kilmarnock Prison.

[4] On 28^th February 2000, the petitioner appeared on a petition libelling drugs offences at Paisley Sheriff Court and was remanded in custody pending further enquiries. He was fully committed and again remanded in custody. He was served with an indictment and cited for a trial diet in the High Court on 31^st July 2000. On 23^rd June 2000 he was, for reasons not explained to me, granted bail by a Sheriff of North Strathclyde at Paisley. A Crown appeal against that was allowed on 27^th June. An application for review of that decision was made shortly thereafter. Meantime, a motion by the petitioner to postpone his trial diet on the basis that he had not been provided with copies of certain documents in the possession of the Crown was granted and the normal maximum period of incarceration pending trial of 110 days was extended. A further motion for postponement of the next trial diet of 28^th August 2000 was also apparently made and granted on the basis that the petitioner had by then lodged several Minutes raising Devolution Issues, the nature of which was not revealed to me. These were, at the time of that trial diet, under consideration by the Criminal Appeal Court. A further trial diet was set down for 23^rd October 2000. I was advised that the remedies sought in the petitioner's Minutes had all been refused on the day this petition came before me but that the reasons for refusal were to be given later. I was also advised that the petitioner's application for review of bail, or an appeal relative thereto, had also been refused. These various matters emanating from the petitioner have resulted in the petitioner being incarcerated pending trial under the original Sheriff Court committal warrant for almost double the normal statutory maximum.

[5] Meantime, on 1st August 2000, the petitioner applied for bail in respect of his concurrent detention authorised under the Immigration Act. This proceeded in terms of paragraph 22 of the Schedule and was heard by an Adjudicator on 3rd August. He refused the application (No. 6/7) because he found persuasive the contention that, as the applicant faced serious criminal charges, he would be unlikely to comply with conditions imposed were he to be granted bail under the immigration rules. He did not consider that a Mr. Sanchez, who was himself on interim liberation pending a hearing on his own judicial review, was a "cautioner" who would exercise the necessary influence and control over the petitioner. In short, he was not satisfied that the petitioner would :

[6] At the outset, counsel advised that the petitioner's new diet of trial was itself unlikely to proceed because the petitioner intended to seek leave to appeal the refusal of the Minutes to the Judicial Committee of the Privy Council. This was apparently so even although the reasoning of the Court in refusing the Minutes was not yet to hand. Despite the procedural history of the case, counsel submitted that the petitioner had not been unduly delaying matters in the criminal process but a problem had arisen regarding the obtaining of a book, not a listed label or production, from the Crown.
[7] The fundamental submission was that the administrative power of detention under the Schedule to the Immigration Act could only be used to facilitate the removal of the detainee and that removal required to be carried out without delay. The respondent required to do everything in his power to expedite the removal. If he could not or did not wish to remove the detainee at the time of authorising the detention then such authorisation amounted to an abuse of the power given to him. For example it was such an abuse to detain someone pending his trial (R v Governor of Durham Prison ex parte Singh [1984] 1 All ER 983).
[8] The Lord Advocate and the respondent were both, according to the submission, "manifestations of the Crown". They were the same person in law and the actions of the Lord Advocate could not stop the removal of an immigrant detained pending removal. There was no reason for the respondent not to have removed the petitioner, had he wished to do so.
[9] Counsel submitted that the respondent could require the release of the petitioner from Kilmarnock prison and thereafter put him on an aircraft to Guatemala, whatever the intentions of the Lord Advocate might be relative to his prosecution and irrespective of the terms of the committal warrant. Alternatively, he could agree not to remove the petitioner pending trial, in which case his intention to remove as soon as possible would fall and detention of the petitioner under the Immigration Act provisions would not be within his powers.

[10] If there were a danger that the criminal courts would decide to liberate the petitioner, whether pending trial or generally, then it was a matter for the respondent to make suitable arrangements, such as liaising with the Lord Advocate, to discover when any such liberation might occur. He could then issue another removal notice and detention authorisation. What he could not do was to authorise the petitioner's continuing detention whilst the petitioner was incarcerated pending trial if he did not intend to remove him pending the completion of the criminal process. Accordingly, the authorisation fell to be reduced and the petitioner "liberated" albeit that he would still be held under the committal warrant.

(b) RESPONDENT
[11] Counsel maintained that there was nothing wrong with the detention of the petitioner under the regime governed by the Immigration Act albeit that he was also detained in terms of the committal warrant. The administrative detention was authorised under and in terms of the Act and continued to be under regular review from time to time. In the current circumstances, it could not be said to be unlawful or unreasonable.

[12] The respondent's view was that the existence of continuing criminal proceedings prevented the removal of the petitioner. That was not the case in Singh (supra and see also R v Governor of Richmond Remand Centre ex parte Ashgar [1971] 1 WLR 129) where the only authority to detain was under the Immigration Act. The respondent could, of course, cancel the authorisation at any time. However, looking at the initial picture at the time of the petitioner's arrest in February and events since then, there have been sound reasons for maintaining the authorisation to detain. In that connection, it was not sufficient to look at the bare fact that seven months have passed since that arrest. The case had been set down for trial on at least two occasions and several Minutes has been raised and rejected. At any of these stages, including today, when the Criminal Appeal Court decided to refuse the Minutes, the petitioner might have been liberated by being allowed bail, by being acquitted after trial or by the criminal proceedings being stopped prematurely by the Court. The respondent's desire, in the context of his jurisdiction in immigration matters, remained one of wishing to remove the petitioner as soon as possible. He required to keep the authorisation live since it was not known when the petitioner might be liberated.
[13] The respondent exercised an entirely different jurisdiction from the Lord Advocate and had no control over when or if criminal proceedings might come to an end. That could happen at any time. It is quite legitimate to maintain the authorisation to meet that exigency since otherwise the petitioner might well abscond. If it became clear that the criminal proceedings would take a substantially greater time than anticipated then the situation could and would be reviewed. Meantime, there was nothing that the respondent could do to expedite the criminal proceedings. The reason why they were taking so long appeared to be the actions of the petitioner.
[14] The respondent's position remained that he wished to remove the petitioner as soon as possible but awaited the conclusion of criminal proceedings before he could do so. He would continue to review the requirement to have the petitioner detained but at this point it could not be said that he had erred in maintaining the authorisation.

[15] Considerations concerning the doctrine of the indivisibility of the Crown, which were not developed to any material degree before me can have little bearing, in a case such as this, upon an issue involving the jurisdictions of the Lord Advocate on the one hand and the respondent on the other. The Crown has different capacities relative to the United Kingdom Government and the Scottish Administration. These two office holders are members of two different executives. They have entirely different jurisdictions so far as the prosecution of crime on the one hand and immigration on the other are concerned. The Lord Advocate has responsibility for the former and the respondent for the latter. It is part of the Lord Advocate's function to obtain, through the offices of the Procurators Fiscal, appropriate committal warrants from Sheriffs to imprison, where necessary, accused persons until liberated in due course of law. No doubt as the person obtaining and authorising the execution of the warrant, the Lord Advocate, again through the Procurators Fiscal, can determine that the warrant should be executed no further thus permitting an accused person to be released from his imprisonment in suitable situations. The Court can effectively achieve the same result by granting an application for bail on the motion of an accused person. However, I was referred to no authority for the proposition that the respondent, a member of the United Kingdom Government, could order the release of a prisoner in a Scottish prison held there under a warrant obtained by the prosecuting authorities in Scotland in the manner I have described.

[16] In relation to the prosecution of crime in Scotland, this again is the province of the Lord Advocate. It is therefore not surprising that the respondent takes the view that he cannot remove a person from the jurisdiction (at least without the consent of the Lord Advocate) when there are criminal charges pending against him at the instance of the Lord Advocate.

[17] The respondent's powers and those of his immigration officers are determined in the circumstances of this case by reference to the terms of the Immigration Act. There can be little doubt, in that context, that the administrative power to authorise detention is solely to be used to facilitate removal, i.e. principally to prevent the potential detainee absconding prior to that removal. The respondent will be abusing this power if it is used for some ulterior motive. Equally, it seems clear, and I did not understand it to be disputed, that where directions for removal are given then they should be executed with reasonable expedition. Where, therefore, the respondent decides that he does not wish to remove a person as soon as reasonably practicable, then that person should not be kept subject to either a removal order or, consequently, detention. Similar considerations may also apply where, for certain reasons, the respondent realises he cannot secure the removal of the person within a reasonable timescale.

[18] None of these considerations apply here. The respondent has no control over when the criminal proceedings might come to an end. They may do so very suddenly if, for example, the Court decided to sustain a plea in bar of trial raised in the context of a Minute raising a Devolution Issue. I do not know whether such pleas were contained in the Minutes lodged in this case but that may be the case. It may equally be that further issues of that type may be raised and potentially sustained without the respondent having any advance notification of that likelihood. In this context, I do not regard it as reasonable or practicable to assume that the respondent can keep an active eye on the course of the criminal case against the petitioner or for the respondent to secure the Lord Advocate's concurrence to intimate all possible steps in process and their potential consequences to the respondent.

[19] At present, there remains a trial diet set down for the end of October. The proceedings might come to an end then after a trial in which the defence succeeds. Alternatively, if the trial diet does not proceed, a motion for bail may be made and granted, as it was initially in this very case. There are many different situations in which the criminal proceedings may suddenly come to an end (and the petitioner thus liberated) or the petitioner may find himself at liberty pending the conclusion of proceedings. Given the first possibility, the maintenance of a detention authorisation pending removal as soon can reasonably be arranged seems an entirely reasonable exercise of the immigration officer's discretion under the terms of the paragraph 16 of the Schedule. It does not amount to an abuse of the power under that paragraph since the respondent's intention remains to remove the petitioner as soon as he reasonably can and wishes to detain him solely with a view to securing that objective. Given the second possibility, standing the real fear of the petitioner absconding pending resolution of the proceeding and, consequently, removal, as described by the Adjudicator who refused bail, that maintenance seems equally reasonable and warranted in those circumstances.

[20] For these reasons, I have sustained the respondent's second plea-in-law and refused the prayer of the petition.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Monterosso v Secretary Of State For The Home Department, Re Application For Judicial Review [2000] ScotCS 251 (29 September 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/251.html Cite as: [2000] ScotCS 251

Scottish Court of Session Decisions