Issue 34 October 2006 - Current Awareness
ASYLUM AND IMMIGRATION (1) Ye Hung Wu v Secretary of State for the Home Department, [2006] CSOH 124, Lord Brodie
W, a Chinese national, entered the UK and gained leave to enter and remain here for successive periods on the basis that his work, or change to his work, should be authorised by the Home Office. He obtained a work permit which allowed him to work in Aberdeen. He married a Chinese student who had made an application for leave to remain in this country. The same day he moved to Glasgow and started work there for a different employer. He did not get Home Office authority for that change and W admitted the breach of immigration control. Directions for the removal of W to China were set. W sought judicial review. He relied on his marriage to argue that art. 8 would be breached if he were to be returned to China.
Held: petition refused (1) The removal of a married person from the UK in circumstances where he and his spouse wish to remain there can amount to an interference with family life and clearly, although this is a separate question, such a removal can amount to a contravention of his Convention right not to have that family life interfered with. However, everything depends on the particular circumstances of the case and not every order for removal will have these consequences.
(2) The court had to consider whether art.8 rights will be contravened by the decision under consideration, just as an immigration judge must do on an appeal.
(3) Whether there has been a contravention of the petitioner's art.8 rights is a question of fact. In this case there was no breach of art.8 on the facts. At the relevant time W had not long married a Chinese national and speaker of Mandarin, with only very limited rights to reside in the UK. Nothing was put before the court to explain why the couple should not both return to China and pursue married life together there or that there was any obstacle whatsoever in the way of their doing so. A preference to reside in the UK is not protected by art.8.
(4) Even if the decision did interfere with family life, it does not follow that there was necessarily a contravention of his art.8 rights. The decision was for a legitimate aim, the imposition of immigration controls. Further, the removal was not disproportionate. The facts were well short of being the sort of exceptional case contemplated by the authorities such as R (Huang) v Secretary of State for the Home Department [2006] Q.B. 1. Further, his stay in this country was conditional on him meeting the conditions of the grant of leave and so his right to remain here was "precarious" in the sense considered by the Court of Appeal in Mahmood v Secretary of State for the Home Department [2001] Imm A.R. 229.
(2) Farschi v Secretary of State for the Home Department [2006] CSOH 138, Lord Philip
The petitioner is a citizen of Iran who claimed asylum in the UK. The basis of his claim was that he feared persecution in Iran because he was a supporter of Mujahedin-e Khalq (MEK). In his interview with an immigration officer he said that his job, along with two other men, was to reinforce the bodies of cars for the MEK in a workshop rented by them. One day his team leader told him that one of the members of the group of three had been detained and taken for questioning by security forces in Iran. The group leader received orders to close the workshop to prevent its discovery. The petitioner decided to leave Iran as he was afraid that the detained man might give his name to the authorities. He also claimed a right to remain in the UK under Arts 2, 3, 5, and 6 on the ground that his rights would be violated if he were to return to Iran. His claim for asylum was refused on the ground that he had failed to establish a well-founded fear of persecution, and that, in any event, he could have moved from Tehran, where he lived, to other parts of Iran.
His claim under the ECHR was refused on the ground that he had failed to establish that there were substantial grounds for believing that there was a real risk that he would face treatment contrary to Art.3 if returned. The Secretary of State found that he had failed to establish that there was a reasonable likelihood that the authorities in Iran would have any interest in him or knowledge of his alleged involvement with the MEK. His claim under Arts 5 and 6 were rejected on the ground that those Articles did not have extra territorial effect. His appeal before an adjudicator failed. He sought leave to appeal to the Immigration Appeal Tribunal. That application was refused. He sought judicial review of the refusal. He argued that the determination of the adjudicator did not properly take account of the ECHR arguments advanced other than the Art.3 arguments. He argued that the petitioner should have given reasons for rejecting the claims under Articles other than Art.3, including arguments under Arts 7 and 14. This argument had not been advanced in the application for leave to appeal.
Held: petition refused (1) The arguments relied upon now were not advanced in the application for leave to appeal. Under reference to R v Secretary of State for the Home Department, ex parte Robinson, [1998] Q.B. 929 at 945, the test for allowing an application for leave to appeal to proceed was whether the arguments were obvious points with strong prospects of success. They were not.
(2) Whilst it was arguable that the adjudicator failed to take into account all the matters that she ought to have taken into account, or properly to exercise her jurisdiction, it was not, however, enough that the points now taken in support of the motion for judicial review are arguable.
(3) The petitioner had to show that the errors in law on which he relies actually made a difference to the decision. Even if the adjudicator, on the face of the determination, had done what the petitioner now says she should have done, it would have made no difference to her decision.
(4) She did properly consider the claim under Art.3 but she rejected it because she did not accept the veracity of the essential elements of the petitioner's claim. She did not accept that he would be of interest to the Iranian authorities if he returned to Iran, and so did not accept that there was a real risk that he would suffer ill treatment in violation of his rights under Art.3. Counsel for the petitioner made it clear that he did not seek to challenge the adjudicator's finding on credibility. In these circumstances, standing on the unchallenged finding on credibility, it is inevitable that she would have rejected the claims based on Arts 2, 5, 6, 7 and 14. Since the petitioner's evidence was not believed, there was no room for the rights under any of these articles to be engaged.
5) Further, the House of Lords held in R (Ullah) v Special Adjudicator that successful reliance on articles other than Art.3, in order to resist extradition or expulsion, requires the presentation of an exceptionally strong case. This was not that case.
CRIMINAL PROCEDURE - Calder v HMA [2006] HCJAC62
C raised a Bill of Advocation in relation to proceedings under the Crime (International Co-operation) Act 2003 which took place in the Sheriff Court in Aberdeen. The sheriff, on the application of the respondent, pronounced an order allowing certain evidence to be received under s.15 of the 2003 Act, and ordering that it be forwarded to the requesting authority, the US Department of Justice. In the Bill, C sought to have the order of the sheriff recalled. The Scottish authorities provided assistance to the US authorities in connection with alleged drugs offences which had occurred in Scotland and America. They made various requests to the authorities in the UK for assistance seeking physical and electronic surveillance of C. The sheriff granted a warrant to search C's premises. Various items were seized, including quantities of a drug, a computer and various documents. C was cautioned and charged with a contravention of s.4(2) (b) of the 1971 Act and then appeared on petition. Further, at a time when criminal proceedings had not been instituted against C in America, the Lord Advocate acting under s.15(3) of the 2003 Act, nominated the sheriff at Aberdeen to receive such of the evidence requested as might appear to the court to be appropriate for the purpose of giving effect to requests made by the US authorities. A hearing took place before the sheriff at Aberdeen for the purpose of receiving evidence in pursuance of the supplemental requests for assistance. The hearing was conducted by a Procurator Fiscal Depute. The hearing took place in private and there were present an Assistant US Attorney, a US Special Agent of the DEA, as well as officers of the Scottish Drugs Enforcement Agency. C was not present and not represented. Since there were at that date no current criminal proceedings in the USA, C was not a party to, or a person interested in, such proceedings, and was accordingly not entitled to be present in terms of Rule 36.9(c) of the Act of Adjournal or represented by American or Scottish lawyers in terms of Rule 36.9(e) or (f). No question of whether he should be granted leave to participate in the hearing in terms of Rule 36.9(g) was raised by the Procurator Fiscal Depute. In due course the US authorities instituted criminal proceedings in America and sought the extradition of C. During the extradition hearing C and his advisers first became aware of the order made by the sheriff. The Scottish Ministers decided to extradite the complainer. In moving the Bill, C argued that the requirement of lawfulness, expressed in Art.8 and Art.l of the First Protocol of the Convention meant that there had to be not only compliance with the relevant provisions of domestic law, but also compatibility with the rule of law. The domestic law had to be construed in a way that was compatible with the Convention rights of C. The provisions of the domestic law therefore have to be sufficiently precise and foreseeable and must provide a measure of legal protection against arbitrary interferences by public authorities with Convention rights. The scope of any discretion therefore required to be indicated with sufficient clarity to give affected persons adequate protection against arbitrary interference. C argued that there were insufficient procedural safeguards, in respect that the proceedings before the sheriff were not intimated to C so as to give him an opportunity of seeking leave under r.36.9(g) to participate in the proceedings. Secondly, the procedural safeguards were insufficient in respect that, despite the terms of r.36.9(g), no consideration was given to whether the proceedings should have been intimated to C. Thirdly, the test of legality was not met, because the permissible interference with the complainer's convention rights was not sufficiently prescribed by law.
Held: The court refused to pass the Bill of Advocation as (1) The requirement of lawfulness expressed in Art.8 and Art.l of Protocol 1 demands more than compliance with the relevant provisions of domestic law;
(2) To be lawful, an interference with Convention rights must also be compatible with the rule of law. The provisions of the domestic law must therefore be sufficiently precise and foreseeable in effect. There must be a measure of legal protection against arbitrary interference by public authorities with Convention rights. The scope of any discretion must be adequately defined. Measures affecting fundamental rights must be accompanied by appropriate procedural safeguards;
(3) The purpose of the 2003 Act is clear. It is designed to facilitate international co-operation in the investigation and prosecution of crime. The scope for providing assistance to another state in that connection is clearly defined by ss.13 to 15 of the 2003 Act and the decision in principle to afford assistance is in terms of s.15(3) a matter for the Lord Advocate, a law officer who in relation to the prosecution of crime exercises his powers in the public interest. In so far as the sheriff has a decision to make, it is a clearly defined decision of relatively narrow scope, namely whether the evidence which he is asked to receive is "evidence to which the request relates which appears ... to be appropriate for the purpose of giving effect to the request" (s.15(3)). The jurisdiction conferred on the sheriff excludes the exercise of an unfettered or unpredictable discretion on his part. Moreover, the introduction of the need for a hearing before the sheriff as an independent judicial officer operated as a safeguard against an arbitrary administrative action. For all these reasons sections 13 to 15 did not fail the test of lawfulness;
(4) There was no merit in the submission that the absence of a requirement to notify, or consider notification of, the suspect of the s.15 hearing involves an absence of sufficient procedural safeguards, and thus results in a failure to pass the test of lawfulness. Under r.36.9 a distinction is drawn between cases where there are current criminal proceedings and cases where there is only a criminal investigation. In the former case, the accused person is entitled to attend and may with leave participate, while in the latter the suspect may with leave participate, but has no entitlement to attend. There is thus no express requirement that the mere suspect be notified of the proceedings. The distinction is in accordance with principle that once the stage is reached that criminal proceedings have been commenced the accused person should in general have notice of any procedural step taken in relation to the case. Even then, however, it is to be noted that the sheriff retains discretion not to give the accused person leave to participate. On the other hand, when matters have not proceeded beyond the stage of investigation, the risk that giving the suspect notice of the proceedings might prejudice the investigation in any manner of way is obvious. The scope for steps being taken to hamper or frustrate the investigation is clear, and is in itself an adequate justification for making the distinction reflected in r.36.9.
PROCEEDS OF CRIME - Scottish Ministers v Marie Buchanan (2006) CSOH 121, Lord Penrose
In a petition brought under the Proceeds of Crime Act 2002, the respondents, Mr and Mrs B, sought to introduce arguments under a Devolution Minute that the proceedings violated Art.6. By the time this procedure was proposed, the court had heard a preliminary proof at which it had been established on the balance of probabilities that Mr B had been concerned in the supplying of controlled drugs contrary' to s.4(3)(b) of the Misuse of Drugs Act 1971, and that he had been a significant player in the illicit drugs
trade over the whole period on which the petitioners relied. The respondents sought to argue that the proceedings under the 2002 Act were criminal in character' and that the adoption of a standard of proof on the balance of probabilities was incompatible with the presumption of innocence to which Mr B is entitled in terms of Art.6 by imposing on him a burden of proof. A fair trial is said to be impossible on such a basis. Counsel for the respondents recognised that the Court of Appeal in Northern Ireland had decided that proceedings under Pt 5 of the 2002 Act did not involve a criminal charge: Walsh v Director of the Assets Recovery Agency' [2005] NICA 6.
He recognised that the House of Lords had refused leave to appeal that decision and also recognised that the decision had been followed in England and Wales in Director of the Assets Recovery Agency v Commissioners of Customs &Excise [2005] EWCA Civ 334. Further, the decision had been followed in Scottish Ministers v McGuffie [2006] CSOH 34. However, he contended that all of these decisions were wrong. In particular, the characterisation of the proceedings as in rem was a fundamental error. They were truly in personam, and operated as a penalty against any person who was shown to have been in breach of the criminal law.
Held: leave to allow a Devolution Minute refused as:
(1) The decisions of the Courts of Appeal in Northern Ireland and in England and Wales were highly persuasive. The reasoning in Walsh was adopted by Lord Kinclaven in McGuffie. In the opinion of Lord Penrose, the reasoning in Walsh was correct and Lord Kinclaven reached the right decision in McGuffie;
(2) The policy and purpose of the Act properly understood provided mechanisms that were not penal in character. Section 240 of the 2002 Act provides for the recovery of "property which is, or represents, property obtained through unlawful conduct". Parliament was entitled to legislate on the basis that no person should be able to acquire, and to assert in a question with the State a right to, property which he or she has obtained, or to which he or she obtains title, by unlawful conduct of the kind identified in s.241 of the Act, or which represents property originally acquired by unlawful conduct. The position can be contrasted with the imposition, in criminal proceedings, of a monetary penalty such as a fine. The object is to take, in money terms, from the offender's available assets an appropriate level of penalty to reflect the culpability of the offence he or she has committed. The exercise is focused on the offender's means and estate, on his 'property' in the widest sense. It is intended to take away part of what belongs to the offender, to deprive him or her of ownership, which is otherwise unquestioned, of something to which he or she has a right of property;
(3) In any event, even if there was no question of substance to try, Lord Penrose would have refused leave to introduce a devolution issue at this stage in the proceedings. In the answers originally lodged to the petition, each of the respondents made reference to his or her convention rights, including those alleged to arise from Art.6 of the convention. A minute of amendment was tendered on December 7, 2005. In substance, it replaced the existing answers, and to minimise delay the document was received as substitute answers. These answers omitted the references to convention rights. The proceedings thereafter were conducted on the basis of the new answers. In particular the preliminary proof was conducted on that basis. Rule 25A of the rules of court provides that it is not competent, without the leave of the court, for a party to introduce a devolution issue otherwise than before any evidence is led. Leave can only be granted on cause shown. Deletion of the existing averments relating to the B's convention rights was, in the circumstances, a deliberate act, carried out in knowledge of the relevant law, and against the background of the relevant provisions of the rules of court. Had Lord Penrose considered that there was any merit in the proposed devolution issue, he would have felt obliged to refuse this aspect of the amendment on the ground that Mr and Mrs B had waived the devolution issue;
(4) Further, it was also of some materiality that the B's intention to introduce the issue at this stage would undermine the procedure by way of preliminary proof that has already been completed. That proof proceeded on the view that the appropriate standard of proof was balance of probabilities. In engaging in that form of procedure, B acceded to the application of a standard that they now seek to undermine by the contention that only proof beyond reasonable doubt is appropriate to determine the very issue that was dealt with at the preliminary proof. The only cause relied on why the court should entertain this aspect of the amendment was a change of view by counsel currently acting for Mr and Mrs B. Civil proceedings must be constrained by a proper exercise of discretion. Nothing in this case favours the position of Mr and Mrs B.