EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Mackay of Drumadoon Lord Menzies Lord Stewart	[2011] CSIH 17 P163/11 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in Petition of F. A. H. (Assisted Person) Petitioner; for Judicial Review of the decision of the Secretary of State for the Home Department to remove the Petitioner to Tanzania on Monday 14 February 2011 at 0635 hours _______

Act: Bovey, Q.C.; Drummond Miller

12 February 2011

[1] The petitioner is a citizen of Tanzania who arrived in the United Kingdom on 31 October 2006. In these proceedings he seeks judicial review of a decision of the Secretary of State for the Home Department ("the Secretary of State"). In the petition the Advocate General for Scotland, on behalf of the Secretary of State, is designed as being the respondent.

[2] The petitioner arrived in the United Kingdom on 31 October 2006 on a student visa. He had leave to remain in the United Kingdom until 31 January 2008. He did not depart from the United Kingdom when his visa expired. He accordingly became an overstayer. The petitioner submitted two further applications for leave to remain in order to extend his visa. Both were unsuccessful. The second of these was refused in July 2008.

[3] The petitioner was detained on 3 February 2011 whilst he was staying at a residential address in Aberdeen. He was taken to Dungavel Immigration Removal Centre, Strathaven, where he remains. On 6 February 2011 directions for the removal of the petitioner from the United Kingdom were served on him by the UK Border Agency. Those directions were that he should be removed from the United Kingdom at 0635 hours on 14 February 2011, by scheduled flights via Amsterdam to the United Republic of Tanzania. It is clear from the Immigration Factual Summary, which was served on the petitioner on 6 February 2011, that the Secretary of State was aware that the petitioner usually resided with his pregnant girlfriend in Aberdeen.

[4] The petitioner instructed solicitors on 8 February 2011. Following receipt of instructions the petitioner's solicitors submitted written representations to the Secretary of State putting forward a human rights claim on his behalf. That claim was based on the petitioner's family life in the United Kingdom, as protected by Article 8 of the European Convention on Human Rights. It was set out in a letter dated 9 February 2011 which the petitioner's solicitors faxed that day to the Detained Cases Department of the UK Border Agency in Glasgow.

[5] The letter informed the Secretary of State that the petitioner is in a relationship with C J, date of birth 04/12/1966, who is a British National. Prior to his detention the petitioner and C J had been residing together in Aberdeen. They had done so since March 2010. They are engaged to be married. The letter informed the Secretary of State that C J was six months pregnant with the petitioner's child. Enclosed with the letter were a number of documents, including a statement taken by the solicitors from C J on 9 February 2011; a copy of C J's passport; copy ultra sound scan images of the unborn child, of which the petitioner and C J are the parents; the hospital pregnancy records of C J, in which the petitioner is referred to as being her partner; and a copy birth certificate of C J. Copies of all those documents were also faxed to the UK Border Agency.

[6] On 11 February 2011 the present petition was lodged. It seeks reduction of the decision of the Secretary of State dated 6 February 2011 to remove the petitioner to Tanzania on Monday 14 February 2011 at 0635 hours. When that petition was lodged the petitioner's solicitors had not received any acknowledgment of or response to the letter dated 9 February 2011, which they had faxed to the UK Border Agency.

[7] On 11 February 2011 the petition was placed before a Lord Ordinary in terms of Rule of Court 58.7. seeking an order for intimation and service. The petition sought an order for service on the Secretary of State, care of the Office of the Solicitor to the Advocate General for Scotland, and intimation to the Advocate General for Scotland and the UK Border Agency, Aberdeen Enforcement Unit in Aberdeen. With no caveat having been lodged, the Rules of Court did not require the petitioner to intimate to the Secretary of State either the lodging of the petition or the application for an order for intimation and service. The application was heard by the Lord Ordinary at a hearing in which the petitioner was represented by junior counsel. The Lord Ordinary refused the application for first orders for intimation and service.

[8] The petitioner reclaimed against that decision. The reclaiming motion came before an Extra Division the following day, Saturday 12 February 2011. On that occasion the petitioner was represented by senior counsel. Intimation of the enrolling of the reclaiming motion was not given to the Secretary of State or the Advocate General's office. That was by reason of the fact that neither was yet a party to the proceedings. There is no Rule of Court which requires intimation to be made to a prospective respondent in circumstances such as have arisen in the present case.

[9] We were satisfied that the reclaiming motion was competent and that it could proceed without leave. The Lord Ordinary's refusal of an order for service and intimation had disposed of the whole subject matter of the petition (Rules of Court 38.1.-(2) and 38.2.-(1)(a)). Having regard to the urgency of the issues raised by petition and the reclaiming motion, we dispensed with the lodging of a reclaiming print and in terms of Rule of Court 38.11 we allowed urgent disposal of the reclaiming motion on the Single Bills.

[10] Senior counsel began his submissions by explaining to the court why the petition did not seek interim suspension of the removal directions. That was on account of the current policy of the UK Border Agency to defer (or suspend) removal directions where the High Court (the Administrative Court in England and the Court of Session in Scotland) has formally acknowledged receipt of an application for judicial review with detailed grounds. In Scotland that amounts to the granting of first orders for intimation and service. The UK Border Agency has not lodged a caveat which is triggered by the lodging of a petition or the seeking of an order for intimation and service. Senior counsel reaffirmed the petitioner's position that in the absence of such a caveat, intimation of the reclaiming motion was not appropriate. He informed the court that the petitioner's solicitors had still not received any acknowledgement or response from the UK Border Agency to the human rights claim submitted on the petitioner's behalf on 9 February 2011. Enquiry made of the UK Border Agency that morning had confirmed that the removal directions remained in force.

[11] Having regard to the urgency with which the reclaiming motion required to be heard, no opinion of the Lord Ordinary was available. Senior counsel indicated he had been informed that the Lord Ordinary had refused an order for intimation and service because he had reached the overall conclusion that the petitioner's human rights claim must fail. The Lord Ordinary had articulated three reasons for reaching that conclusion: (a) the precariousness of the petitioner's immigration status when the petitioner and C J had entered into their relationship; (b) the petitioner's failure to remedy his status as an overstayer; and (c) the possibility of the petitioner applying from Tanzania for leave to enter and leave to remain in the United Kingdom and resume cohabitation with C J.

[12] Senior counsel explained he had two submissions as to why the Lord Ordinary had erred. In the first place the Lord Ordinary had failed to follow the guidance relating to the application of Rule of Court 58.7., which was to be found in E. Y. v The Secretary of State for the Home Department [2011] CSIH 3, dated 12 January 2011. In that case, in paragraph [16] of the Opinion of the Court delivered by Lord Clarke, the court stated:

" It is quite clear, in our opinion, that an applicant for judicial review does not by simply presenting a petition to the court have a right to have a motion for first orders granted. The wording of the relevant Rule of Court makes that clear. On the other hand, the application for first orders is simply the first procedural step in the procedure for judicial review. Petitions for judicial review have, of their very nature, often to be brought in haste. It would be quite wrong, in our judgment, that a hearing of a motion for first orders should be regarded as anything like the equivalent of an application for leave to bring the petition. We regret to say that the Lord Ordinary has clearly, in that respect, erred.

...

As to what the correct test is, we agree with the submission of counsel for the respondent that the hurdle to be crossed is a low one. While a residual power is given to the judge, hearing such a motion, to refuse it, such a power must be exercised, in our opinion, only in what can be regarded as exceptional circumstances. These would include a petition which betrayed a clear lack of jurisdiction or incompetency which could not be explained away to any extent by the applicant's representative at the time of the hearing. Petitions whose averments are incomprehensible or gibberish would also entitle the judge to refuse first orders. We would not exclude also those cases which do not raise issues of jurisdiction or competency strictu sensu but, where the averments are apparently so out of step with received and long established canons of law, and where the representative of the applicant can give no indication as to how that fundamental difficulty might be resolved. But even in such cases caution should be exercised since the law is always developing and, in particular, in fields such as immigration law, can develop quite quickly and dramatically. These cases are often quite fact sensitive and an over ready conclusion on the merits of the matter without any testing of the facts might be quite inappropriate. In addition, as was observed in the course of discussion before the court, to refuse such a motion before the respondent's position is known might preclude the applicant obtaining a remedy which the respondent, for whatever reason, is prepared, in the event, to be granted. Moreover experience shows that the respondent's position, once known, may indeed place the applicant's position in a better light than was first supposed. Ultimately it may be unwise to say anything more than that only in very clear exceptional cases should a refusal to grant first orders be made. It may be that the formulation of the test provided by the Lord President in the case of Eba (Eba v The Advocate General for Scotland [2010] CSIH 78) 'manifestly without substance' is simply a reflection of that being the position."

[13] Senior counsel indicated that he was uncertain whether the Lord Ordinary's attention had been directed to E. Y. He acknowledged that it would be unfortunate if it was not. For our part, however, we take the view that the matters discussed in paragraph [16] of the Opinion of the Court in E. Y. are of relevance to the events which led up to the lodging of the present petition. The guidance set out in E. Y. is applicable to the present petition, in particular because of the change in the petitioner's family and private life since the petitioner had last sought to have his leave to remain extended and because the UK Border Agency had not dealt with the human rights claim submitted on behalf of the petitioner. In the light of those circumstances, we are of the opinion that it was not appropriate for the Lord Ordinary to refuse the motion for first orders and that he erred in doing so. Having regard to the reasons he announced for refusing the motion for first orders, he appears to have treated that motion as being the equivalent of an application for leave to bring the petition.

[14] The second line of submission advanced by senior counsel was that in any event the Lord Ordinary had been wrong to hold that for the reasons he gave the petitioner's human rights claims was bound to fail. In support of that submission senior counsel stressed that the petitioner was an overstayer, not an illegal entrant into the United Kingdom. Nor had there been any question of criminal behaviour or dishonesty on his part. It was submitted that the material relating to the petitioner's relationship with C J was strong. That material supported the conclusion that the petitioner's partner had experienced significant troubles in the past. She had required treatment and counselling to enable her to rebuild her life, following upon a period when she had suffered from depression. It appeared from the documentation submitted in support of the human rights claim that the petitioner was providing considerable support to C J and that her health and the wellbeing of her unborn child were at risk of being adversely affected were the petitioner to be removed from the United Kingdom to Tanzania. Senior counsel pointed out that, according to the information lodged in support of the human rights claim, C J had become attached to the petitioner sometime before she was aware of his status in the United Kingdom. Senior counsel also stressed that whilst precariousness was a relevant factor in determining whether or not a claim for asylum or human rights should be sustained, it was a fact-sensitive area (see JS, Petitioner [2010] CSOH 75, 23 June 2010, Lord Malcolm). As far as the petitioner's failure to remedy his status is concerned, senior counsel was unaware of the UK Border Agency relying on that as a relevant factor in a human rights claim. As for the possibility of the petitioner applying from Tanzania for leave to enter and remain in the United Kingdom, senior counsel drew attention to a passage in the speech of Lord Brown of Eaton-under-Haywood in Chikwamba (FC) v The Secretary of State for the Home Department [2008] UKHL 40, at paragraph 44, in which Lord Brown indicated that it would be only comparatively rarely, certainly in family cases involving children, that an Article 8 appeal would be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave to enter and remain in the United Kingdom from abroad.

[15] We do not consider it appropriate to comment in detail on the submissions Mr Bovey made in relation to the second line of argument. Suffice it to say that they fall within the sort of issue to which Lord Clarke was referring in para [16] of the opinion of the court in E.Y. as being appropriate to reach conclusions about once the facts have been tested and the Secretary of State's full position is known.

[16] A further matter which troubles us is that the petitioner has not yet received any response from the Secretary of State or the UK Border Agency in relation to the human rights claim that was submitted on his behalf on 9 February 2011. We appreciate that the timescale within which such a response required to be produced was very short. In our opinion, the petitioner's solicitors should have received an acknowledgment of the letter date 9 February 2001 within 24 hours, together with an indication as to when a substantive response would be forthcoming. That was a necessary consequence of a timescale which the UK Border Agency set on behalf of the Secretary of State. Those served with removal directions have a right to submit representations, such as the human rights claim the petitioner has lodged. In that regard we can well understand the petitioner's reference in Article 10 of the petition to what was said by Collins J in para [14] of his judgment in R (Collaku) v The Secretary of State for the Home Department [2005] EWHC 2855.

[17] In the whole circumstances, we will allow the reclaiming motion, grant orders for intimation and service and fix a first hearing for 11 June 2011.