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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Karas & Anor, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 747 (Admin) (07 April 2006) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2006/747.html Cite as: [2006] EWHC 747 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
R (on the application of (1) PREDRAG KARAS (2) ST ANISLA V A MILADINOVIC) |
Claimants |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Ms Lisa Giovannetti (instructed by the Treasury Solicitor) for the defendant
Hearing dates: 22-23 February 2006
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Crown Copyright ©
Mr Justice Munby :
"On 11th October 2004 at 20.30 hours, seven immigration Officers came to our home. They informed us that they had come to remove us from the country as our case was finished and we had no right of appeal. We were informed that our removal would take place on the following morning at 07.45 hours. Both my husband and I were deeply shocked. I asked why we were not informed earlier they said that they had written to us and that we should have all the letters. I explained that we had not received anything.
I requested permission to speak to our solicitor, but they refused this and the reasons they gave was that they couldn't be sure who I was calling. They said that we would be able to speak to a solicitor when we arrived at the detention centre.
I explained to the officer that I was pregnant and that I had had difficulties with conception and pregnancy because I had a condition called polycystic ovaries. They asked me then whether I felt fine at the moment and I said 'yes' but that this was because I was in my own home and I feared that I would not cope with detention and worst of all, I feared what would happen to us if we forcibly removed to Croatia. The officers then said that there were medical facilities in the detention centre where I would get help if there were any problems. The officers then proceeded to help us to pack all our belongings and at that point both my husband and I started to cry. There was nothing else we could do.
We were taken first to Tinsley House where we arrived between 23.00 hours and 24.00 hours. After our arrival there, we were searched, photographed and admitted to the detention centre. Both my husband and I did see a nurse on arrival and at that stage I was very exhausted and distressed. The nurse said that she saw many people in a similar condition to me and that I was fit to fly. She had only spent five minutes examining me before reaching her conclusion.
The whole admission process took two hours and it was not until 02.00 hrs on 12 October 2004 that we were able to contact our legal representative on the emergency number. When I managed to speak to my solicitor, she asked me some questions about why we feared to be returned to Croatia and advised that, on the information I had given, the best thing was for me to claim asylum in my own right.
At approximately 03.00 am, we were taken to Gatwick airport where we arrived at approximately 04.00 am. We were put in a room which had only four chairs attached to the wall and a piece of foam on the floor. The room had no windows. There was a stale, damp smell and it was very cold. It was like a prison cell. Everything was screwed down and we couldn't even switch the light off; it remained on all the time.
We stayed there until midnight on the 12th October 2004. We could go outside the room to the food and drinks machines but we were not offered any food or drink at any time since our arrival at 20.30 hours on 11th October 2004. It felt like we were treated like criminals. There was a Security Officer standing at the door of the room at all times. We were forced to sleep on a single thin piece of mattress, which was extremely uncomfortable. We had no bed covers and it was very cold. When I complained, they allowed me to get some clothes from our bags to put on the mattress.
While I experienced extreme discomfort, I was not in pain and for this I was grateful, which I feared because of my previous difficulties with conception and pregnancy.
As soon as I arrived at the airport, I asked to speak to an Immigration Officer and explained that I wanted to claim asylum. He tried to persuade me not to do so because his view was that I had no basis to claim asylum and he informed me that I would be detained for a long time and that in the end, I would be removed anyway.
I nevertheless maintained my decision. By this time it was 06.00 am on 12th October 2004. We remained there until after midnight on the same day and we were first offered food at noon on that day.
Eventually we were taken back to Tinsley House where we remained for four days and from there we were taken to the Oakington Reception Centre, I think. on 17th October 2004."
"Detention is only used when there is no reasonable alternative available. It has been decided that you should remain in detention because (tick all boxes that apply):"
The pro-forma then lists, (a) to (f), six possible reasons. The only box which was ticked was (c ), "Your removal from the United Kingdom is imminent." The notice continued:
"This decision has been reached on the basis of the following factors (tick all boxes that apply):"
The pro-forma then lists, (1) to (14), fourteen relevant factors. The only box which was ticked was (8), "You have previously failed or refused to leave the UK when required to do so." The pro-forma contains this 'Important notice for detained persons':
"You may on request have one person known to you or who is likely to take an interest in your welfare informed at public expense as soon as practicable of your whereabouts."
"effectively the [Secretary of State] was seeking to detain and remove the [husband and wife] without notifying their solicitors ... the [Secretary of State] by seeking to detain and remove without notifying [their] solicitors and doing so 'after hours', effectively was seeking to deny [them] access to legal advice and in so doing acted unlawfully."
"The very length of the Defendant's Summary Grounds suggests that the arguability threshold has been crossed. Moreover, I note that the Defendant has studiously avoided giving an explanation for:
(a) the failure to respond to the Claimant's representations made on 14th November 2001 and 24th March 2004 until the updated decision faxed on 11th October 2004;
(b) the failure to serve that letter on the Claimant's Solicitor until 16.16 hrs on that day, even though removal was set for 07.40 hrs on the following day.
The explanation for the Second Claimant's detention until the 25th October when she had claimed asylum on the 12th October is less than impressive.
There is a need for a firm application of immigration control, but the powers must not be exercised in an oppressive manner. There is no suggestion that these Claimants had "gone to ground". The Claimants were represented by Solicitors, who had been waiting nearly 3 years / 7 months for replies to their representations in 2001 / 2004. Why was it necessary to detain these Claimants on 11th October for removal on 12th October before responding to their Solicitors?"
i) The husband's reasonable belief on his arrival in this country that he would, in the light of guidance issued by the Secretary of State in May 1999, be granted some form of status - something, moreover, that had not been drawn to the Adjudicator's attention.
ii) The fact - so it is said - that the husband's sister was granted indefinite leave to remain as a refugee on the basis of what are said to have been almost identical circumstances.
iii) What is said to have been the "serious delay" by the Secretary of State, in particular from November 2001 until October 2004. In this connection Ms Weston placed reliance on Shala, Senthuran and Akaeke, as also on Mthokozisi v Secretary of State for the Home Department [2004] EWHC 2964 (Admin).
iv) The birth of the child.
v) The conditions of 'deprivation and misery' facing ethnic Serb returnees to Croatia. Ms Weston submitted that conditions which may not of themselves satisfy the threshold under either Article 3 or Article 8 are nonetheless relevant factors to be taken into account in reaching a view upon the proportionality of removal. Reference was made in this connection to the decision of the Tribunal in SK at paras [40] and [44].
i) First, she points out that the matters now being relied upon include matters not put before the Secretary of State at the time of his decision. The husband's alleged reliance on the May 1999 policy was not asserted in any of the representations. (Indeed, as Ms Giovannetti points out, it is difficult to see how it could have been, given that the husband had arrived some months earlier in January 1999.) And the child had not even been conceived when the further representations were made to the Secretary of State on 24 March 2004. Indeed, as late as the date when he made his decision the Secretary of State had not been told that the wife was pregnant.
ii) Secondly, she points out that the matters now being relied upon include a
matter which, because it was relied on before the Adjudicator, paragraph 346 required the Secretary of State to disregard. The decision in the case of the husband's sister had been promulgated on 6 November 2000 and had in fact been relied on by him before the Adjudicator who dismissed his claim on 2 July 2001.
iii) Thirdly, and more fundamentally, she submits that even if all the factors now being relied upon are taken into account they do not, in the light of Huang and Strbac, give the slightest realistic prospect of success.
i) The original detention was unlawful because there was, at the relevant time, no publicly available and stated policy governing such detentions.
ii) The original detention was unlawful because it was not justifiable under the Secretary of State's previously published policy and was oppressive, unreasonable and disproportionate.
iii) The original detention was unlawful because the Secretary of State was
seeking to detain and remove the husband and wife without notifying their solicitors and whilst denying them access to legal advice and access to the court.
iv) Even if the original detention on 11 October 2004 was lawful, the continued
detention until 25 October 2004 was unlawful because once the wife had applied for asylum in the early hours of 12 October 2004 there was no longer any prospect of an early removal.
v) Even if the original detention of the husband on 11 October 2004 was lawful, the detention of the wife was unlawful because of her pregnancy.
vi) Even if her original detention on 11 October 2004 was lawful, the continued detention of the wife until 25 October 2004 was unlawful because of her pregnancy.
"are normally considered suitable for detention in only very exceptional circumstances ... unless there is the clear prospect of early removal and medical advice suggests no question of confinement prior to this."
There was no question of imminent confinement in October 2004 - the child was not born until 25 February 2005 - so this ground of complaint adds nothing to the more general complaint that there was in any event no justification for detaining the wife after she had claimed asylum on 12 October 2004.
"if and when the applicant can satisfy a judge of the public law court that the facts disclosed by her are sufficient to entitle her to apply for judicial review of the decision ... [t ]hen it becomes the duty of the respondent to make full and fair disclosure ... [judicial review] is a process which falls to be conducted with all the cards face upwards on the table and the vast majority of the cards will start in the authority's hands."
"there is no duty of general disclosure in judicial review proceedings. However there is - of course - a very high duty on public authority respondents, not least central government, to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide. The real question here is whether in the evidence put forward on his behalf the Secretary of State has given a true and comprehensive account of the way the relevant decisions in the case were arrived at. If the court has not been given a true and comprehensive account, but has had to tease the truth out of late discovery, it may be appropriate to draw inferences against the Secretary of State upon points which remain obscure".
"Whilst it is a necessary condition to the lawfulness for Mr Youssefs detention that the Home Secretary should have been reasonably of the view that there was a real prospect of being able to remove him to Egypt in compliance with Article 3 ECHR, I do not agree that the standard by which the reasonableness of that view is to judged is the Wednesbury standard. I say this both because I can find nothing in the judgement of Woolf J in [R v Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704] that points to this being the standard and because where the liberty of the subject is concerned the court ought to be the primary decision-maker as to the reasonableness of the executive's actions, unless there are compelling reasons to the contrary, which I do not think there are. Accordingly, I hold that the reasonableness of the Home Secretary's view that there was a real prospect of being able to remove Mr Youssef to Egypt in compliance with Article 3 ECHR is to be judged by the court as the primary decision maker, just as it will be the court as primary decision-maker that will judge the reasonableness of the length of the detention bearing in mind the obligation to exercise all reasonable expedition to ensure that the steps necessary to effect a lawful return are taken in a reasonable time."
"1 There is a presumption in favour of temporary
admission or temporary release.
2 There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.
3 All reasonable alternatives to detention must be
considered before detention is authorised.
4 Once detention has been authorised, it must be kept
under close review to ensure that it continues to be justified.
5 There are no statutory criteria for detention, and each
case must be considered on its individual merits."
"effectively the [Secretary of State] was seeking to detain and remove the [husband and wife] without notifying their solicitors ... the [Secretary of State] by seeking to detain and remove without notifying [their] solicitors and doing so 'after hours', effectively was seeking to deny [them] access to legal advice and in so doing acted unlawfully."
In her skeleton argument Ms Weston broadened the attack to include the point that if the claimants' detention was to be lawful, the Secretary of State could not deny them access to legal advice nor deny them access to a court of law.
"Access to legal advice is one of the fundamental rights enjoyed by every citizen under the common law."
"Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order. And it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights. Among the rights which, in part at least, survive are three important rights, closely related but free standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment. "
"The Home Office practice involving delay in deciding a claim but then of arresting and serving the refusal at one and the same time with a view to removal within a day or two, often at weekends and frequently early in the morning, is one that is to be deplored. This court has deplored it on many occasions. It leads to unnecessary applications to the duty judge. It has the effect of preventing those who are to be removed from seeking proper legal advice to which they may be entitled and, even if the Home Office takes the view that there is no conceivable merit to be both found in any possible challenge, this is not the way to go about it. A reasonable time must be provided to enable representations to be made, if any are to be made, certainly to enable advice to be sought if the person to be removed wishes to obtain it. Quite apart from anything else, the approach to the duty judge will almost inevitably result in an order preventing the removal until the matter can be sorted out, either the following day or the next working day, when an application can be put before the Administrative Court. The result is that the flight ticket has to be given up - it is often more than one ticket because frequently an official will accompany the person to be removed - so public money is inevitably wasted."
I respectfully agree with every word of that.
i) to give both the claimants and their solicitors the minimum possible time to react to the decision letter;
ii) not to alert the solicitors to the fact that their clients' removal was imminent;
iii) to minimise the chance of the claimants being able to contact their solicitors
before they were removed;
iv) to minimise the chance of the solicitors being able to do anything effective
before their clients were removed; and
v) to minimise the chance of the claimants being able to apply to a judge.
In short, as the claimants assert, in order to deny them access to legal advice and access to the court.
"The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system."
He continued at para [28]:
"This view is reinforced by the constitutional principle requiring the rule of law to be observed. That principle too requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected. The antithesis of such a state was described by Kafka: a state where the rights of individuals are overridden by hole in the comer decisions or knocks on doors in the early hours. That is not our system."
"It provides a peep into contemporary standards of public administration. Transparency is not its hallmark. It is not an encouraging picture."
The same, I regret to have to say, applies in the present case.
"the timing of the [wife's] asylum application clearly indicated that it had been made in order to frustrate a lawful removal of the claimants, particularly in light of the fact that she had been in the UK variously since 1997 and continuously throughout 2002 and had not claimed asylum".
Moreover, since there was, so it was said, every prospect of the Secretary of State being able to respond to her asylum claim very promptly, he was, it was said, "plainly entitled" to continue detaining the claimants after 12 October 2004.