The Solicitors Journal
R (On The Application of (1) Predrag Karas (2) Stanislava Miladinovic) v Secretary Of State for the Home Department  EWHC 747 (Admin)
28 April 2006
The claimant asylum seekers (H and W) applied for judicial review of the refusal of the defendant secretary of state to consider representations, which were made following the rejection of H’s asylum claim, as a fresh claim, and of the secretary of state’s decision to detain both H and W for over two weeks. The claimants, Croatian nationals of Serbian origin, had met in the United Kingdom whilst W had a student visa and H had been awaiting a decision on his claim for asylum. The secretary of state had refused his claim and issued removal directions. H’s solicitors requested in several letters over two years and four months that H’s case be considered as a fresh claim in reliance on the European Convention on Human Rights 1950 Art 3 and Art 8 but the secretary of state did not respond. In the meantime, H and W married and W became pregnant. About three years after the initial removal directions, the claimants were detained by immigration officials at their home one evening and were informed that they would be removed to Croatia the following morning. The claimants were denied access to legal advice until the early hours of the morning. Following the advice, W applied for asylum whilst still in detention, which halted the removal. The evidence showed that a letter refusing H’s claim, which was not accompanied by any notice of removal directions, had been faxed to H’s solicitors four hours before the detention took place. The claimants missed the flight to Croatia and remained in detention for over two weeks. The claimants submitted that (1) there was an arguable fresh claim because H had developed a private life within the UK and his case fell within the exceptional category recognised in Huang  EWCA Civ 105 and the conditions facing ethnic Serbian returnees to Croatia amounted to a breach of either Art 3 or Art 8 of the Convention; (2) their detention was unlawful and even if the original detention was lawful their continued detention for over two weeks was unlawful.
HELD: (1) The decision of the tribunal in DK Croatia CG  UKIAT 00153 was fatal to the claim under Art 3 and the claimants had not adduced any evidence to show that the situation had worsened since that decision. There was no realistic prospect that an immigration judge would conclude that conditions in Croatia were such that to return the claimants would breach Art 3. In addition there was no realistic prospect of an immigration judge concluding that the instant case was, in the Huang sense, an exceptional case. The delay by the secretary of state in deciding H’s claim was to be regretted, but it was not exceptional. It did not have an adverse effect on the claimants. The claimants could not point to circumstances that, even in combination, differentiated their situation from that of unsuccessful claimants in many such cases. The claimants had no viable claim to remain in the UK and had not established any basis of challenge to the secretary of state’s decision.
(2) The secretary of state’s failure to provide appropriately detailed explanations in response to the allegations that he unlawfully detained the claimants for over two weeks and sought to deny them access to legal advice was disquieting and extraordinary. Detention, if it was to be lawful, had to be reasonable and had to satisfy the test of proportionality. As the secretary of state had chosen not to provide any explanation for his decision to detain the claimants, matters had to be assessed in the light of the known circumstances. Detention in the circumstances of the instant case was oppressive, unreasonable and unnecessary. There was no satisfactory answer to why the claimants had been detained. The secretary of state could not be saved by the fact that in the event H’s solicitors were able to intervene and halt the claimants’ removal. On the evidence the claimants’ detention was deliberately planned with a view to what in the court’s judgment was a collateral and improper purpose: the spiriting away of the claimants from the jurisdiction before there was likely to be time for them to obtain and act upon legal advice or apply to the court. That purpose was improper and unlawful and rendered the detention itself unlawful.