[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Collaku, R (on the application of) v Secretary of State for the Home Department [2005] EWHC 2855 (Admin) (09 November 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/2855.html Cite as: [2005] EWHC 2855 (Admin)

[New search] [Printable RTF version] [Help]

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		9th November 2005

1. MR JUSTICE COLLINS: This claim for Judicial Review raises a number of different issues. Essentially, it is a claim by Mr Collaku, who is a Gorani from Kosovo, that the decision of the Secretary of State not to treat what was submitted to be a fresh claim if as such should be overturned and, also, there is an attack upon the lawfulness of his detention on two occasions in the course of his stay in this country, one in October 2003, when he was detained for some three days or so, and latterly between 22nd March and 19th April 2005, when he was again detained pending a removal.
2. His history, very briefly, in so far as it is relevant, is this. Prior to the 1999 conflict, he lived in relative peace in the part of the Federal Republic of Yugoslavia, Kosovo, where he was born and brought up. He had formed a relationship, which lasted for at least a period of time, with the daughter of the local Serbian military commander but that relationship ceased, certainly by the time, it would seem, that he was conscripted into the army. That happened in January 1999. His brother had been conscripted a few months earlier. He deserted in February 1999 and so did his brother and all his family went to live in Macedonia. Following the end of the conflict in Kosovo in August 1999, he returned but was, he said, beaten up by ethnic Albanians and he believed he had no future in Kosovo, decided to leave and, with the assistance of an agent, got to the United Kingdom, arriving in October 1999 when he claimed asylum.
3. The Secretary of State refused his claim some two years later on 22nd October 2001. He appealed to an adjudicator. That appeal was not heard until May 2003 when the appeal was dismissed. The Adjudicator accepted, broadly, the account that had been given by the claimant but he was slightly sceptical of some part of his account. In paragraph 20 of his determination, in dealing with his findings of credibility and fact, among other things, following acceptance that the claimant would have been called up and had deserted, he said this:

"I accept there was probably some suspicion of him by Albanians on account of his ethnicity and that he may well have suffered one or more beatings when he returned to his area 5 months later, after the war. The information that one of the beatings resulted from his visiting the family home, now occupied by Albanians, has been added only in the recent written statement. The truth of this was not explored in cross-examination and I find it very surprising that this important fact was not disclosed originally. I accord a lower level of credence to this than to the basic story, but accept it as established to the lower standard for the purposes of this determination. I take the same view of the late claim that the Appellant was in a relationship with a Serb girl. I accept the fact, but I suspect him of 'gilding the lily'. It is not a fact central to the account, especially since he has said that there is no such current relationship. I accept also that the Appellant's brother was killed in mid-2002, subsequent to the original claim. However, the circumstances in which he met his death have not been recounted with any degree of clarity and the Appellant said he only had it from a former neighbour that his brother had been killed when he went back to see the situation at the family home."

4. The Adjudicator then went on to consider the position of Goranis such as the claimant in Kosovo and he said that the position of a Gorani such as the appellant was not so secure as that of the ethnic Albanians but, he went on:

"...it does not necessarily follow that they are currently persecuted or that the risk they face crosses the high threshold required to breach Article 3."

Then he went on to indicate that he placed great weight to the UNHCR January 2003 Position Paper, which was then the most up-to-date reliable information available, and he made the point that the UNHCR would hardly be in favour of voluntary return of Goranis to the relevant area where they are concentrated if there remained a real risk that they would face persecution there.

5. The fresh claim is based largely and, indeed, on the submissions made, virtually entirely upon what is suggested to have been a change of approach indicated by the UNHCR in a paper produced in August 2004. It is said that that establishes that there is an arguable risk to Goranis who have particular factors which should be taken into account in their cases. It is important to note the context in which this suggested change is framed. There are three paragraphs in the report in question, 16, 17 and 18. I do not propose to read them all into this judgment but, in summary, 16 commences by observing:

"The security situation for Kosovo Bosniaks and Goranis has remained stable, with no serious incidents of violence reported. Incidents of intimidation, harassment and discrimination have continued and there is still a reluctance to use their mother tongue in public (which could be assimilated to Serbian) in areas outside their immediate neighbourhood..."

"17. Whereas the Bosniaks and Goranis were not directly targeted during the turmoil in March 2004, in some locations they felt insecure and opted for precautionary movements."

And the point is made that, in some Serb neighbourhoods, Gorani families left their homes as a precautionary measure but no other attacks or self-imposed evacuations had been reported. Then paragraph 18, which is the one particularly relied on, reads:

"Individual Bosniaks and Goranis may have a well-founded fear of persecution as members of a minority, in particular when the following factors are taken into account; (i) their past or perceived association with the Serbian regime; (ii) the ethnically volatile or sensitive areas of residence of these communities; (iii) their present or perceived association with the Serb community or alternatively association with the Albanian community; (iv) the unpredictability of and further potential for inter-ethnic violence targeting the minority communities in Kosovo, which is compounded by the inadequate response mechanisms in place in terms of functioning national protection and rule of law."

That clearly indicates that there may be individuals who are still at risk. But it certainly does not support a conclusion that there is any material change in relation to Goranis as a whole.

6. The question that has to be determined therefore is whether this claimant could reasonably be regarded as falling within the scope of paragraph 18 in the sense that there are factors referred to which would or might show that he was to be treated as a refugee in that he faces a real risk of relevant ill treatment. Mr Nathan relies on the past or perceived association with the Serbian regime in that he had been in the FRY army following his call-up and he had had a relationship for a time with a Serb, the daughter of the local commander. It seems to me that the Adjudicator quite clearly had regard to the individual circumstances of the appellant and, in the findings which I have already cited, he made clear that he did not regard the association with the daughter of the commander as being anything that was likely to lead to any problems now or when the matter was before him. Equally, although he was called up, as were many people (whether or not call-up was strictly enforced in Kosovo as in other parts of the FRY seems to me to be immaterial to his point) the fact that he had deserted from the army after a month would surely indicated that he was not and should not be regarded as having any association with the Serbian regime which would lead to problems for him.
7. In the refusal letters, the first of which was in March 2005 and the second, following further representations, in April, the Secretary of State took the view that the matters that were raised did not constitute a fresh claim and he set out, essentially, the matters to which I have referred. The point may be made that he referred still to the January 2003 report of UNHCR but in the letter of 21st April he clearly, in paragraph 8, referred to the August 2004 guidelines. Indeed, since that was a response to further representations from the claimant's solicitors, it would have been surprising if he had not. He made the point, again, that he did not regard the suggested aggravating features to give a realistic chance of a fresh claim succeeding. In my judgment, he was entirely correct in reaching that conclusion. The matters relied on are wholly insufficient to constitute a fresh claim in the circumstances here and I have no doubt, as I say, that the Secretary of State's response was in that regard correct.
8. That leads me to the question of the detentions. Following the dismissal of the appeal and the end of the appellate process, which was in the summer of 2003, a decision was made to remove the appellant but, prior to that, his solicitors had made further representations. Those involved a claim made at the beginning of September 2003 that he should be allowed to remain on human rights grounds. In any event, prior to the decision being made on that, the claimant was detained on 17th October 2003 but was released some three days later. The detention on that occasion was on the ground that his removal from the United Kingdom was imminent. There has, very much at the last minute, been produced a handwritten memorandum from whomever in the Home Office was at that stage dealing with the claimant's case, which suggests that there was a general policy -- or rather it gives rise to the possible argument that there was a policy -- not to remove Goranis to Kosovo and that is given by the author as the reason why he was to be released from detention.
9. As I say, this has been produced or been discovered at a very late stage and Ms Giovanetti has indicated that the Home Office would wish to put in evidence to deal with that and to seek to show that the author had misunderstood or had misapplied the relevant Home Office policy at that time.
10. In fact, that ground had been withdrawn following an indication that he had given that it was to be withdrawn when the summary grounds and defence were received. Mr Nathan, this morning, sought to reinstate it in reliance on the memorandum to which I have referred. Ms Giovanetti very properly accepted that the memorandum at least gave rise to an arguable case that detention should not in the circumstances have taken place at that time. It would have been contrary not only to the Home Office policy but to the assertion that the removal from the United Kingdom was imminent. In those circumstances, she has accepted that the claimant ought to be able to argue that point but, as I say, she needs to put in evidence to deal with it. Accordingly, it seems to me sensible to deal with the other grounds of the claim insofar as it is possible to do so, as that would obviously save time and money, and to defer consideration of that one point to enable her further evidence to be considered and to enable, in the light of that further evidence, the claimant and his advisers to decide whether indeed there was anything to pursue on that point. Essentially, the only relief that would be material there would be a declaration that that detention was unlawful, which might sound in an award for damages. But, short though it is, detention is something which should only happen if it is lawful and as a last resort and must be justified and any detention will sound in damages if the court decides that it was unlawful. Accordingly, I say no more about the rights and wrongs of that particular detention. I merely record it as part of the history.
11. In May 2004, the claimant's then solicitors made further representations on human rights grounds and nothing was heard from the Home Office and it was not until about a year later, on 22nd March 2005, that, after a period of silence, when the claimant attended in accordance with the terms of his temporary admission to report, he was taken into custody and told that he was to be removed the following morning. This led to a need for immediate action to be taken. The Home Office immigration officers were informed by the solicitors that they were proposing to seek Judicial Review to prevent the removal and, in the light of the submissions and representations which had been made, it was clear that this was no empty threat or should have been. In those circumstances, the concordat which had been agreed between the Home Office and the Administrative Court should have been applied. That concordat was one which had come into existance in July 1999. So far as material, the approach was that, on confirmation that leave to move for Judicial Review for removal directions was being applied for, those directions should be suspended and representatives were to be advised that they were to be required to lodge an application:

"... within three working days and to notify the Immigration Office of the lodging of the application and the Crown Office Reference within twenty four hours of lodging..."

So effectively, matters should be held for three days plus twenty four hours, ie four days, to enable that to be done.

12. The response of the Home Office official was, and this is accepted by the defendant, inappropriate. All he said was this:

"Thank you for your fax dated 23 March 2005 on behalf of your above-named client which has been passed to this office for consideration.

"It is considered that the decision to refuse the earlier representations was reasonable. You have not provided any further information or evidence and there is no indication what grounds you have for lodging an application for judicial review. In view of this we do not consider that there is any basis for a further challenge and we are not prepared to defer the removal directions set for tomorrow.

"There is no legal bar to your client's removal and the removal directions remain in place."

It was not, of course, for the official to prejudge the merits of the application. As it happens, he was correct in the sense that there was no merit but that is not the point because the purpose behind the agreement was to try to avoid unnecessary applications being made to the duty judge (particularly out of hours) and, indeed, also to avoid the need for solicitors to take on out of hours work in order to meet a deadline which should not have been required to be met.

13. In this case, Mr Nathan tells me that, at half past five or shortly afterwards on the day in question, work had to frantically to be carried out in order to prepare the case and it was not until, I think, 9 o'clock or thereabouts, that the duty judge was contacted.
14. 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.
15. I am very glad to hear from Ms Giovanetti that the Home Office has taken on board the concerns from the judiciary that have been raised, to my knowledge, from time to time this year and I have had complaints from the duty judge of the trouble with these applications in circumstances such as arose in this case and that a new policy, taking on board these concerns, is to be put to me. All I can say is that I welcome that, I will keep under review, as lead judge in the Administrative Court, the problems that exist and will do all I can, and I am sure that, with the assistance of the Treasury Solicitor, the Home Office will realise the importance of doing all it can to avoid unnecessary applications to the duty judge and to ensure that these matters are dealt with on as cost effective and as sensible basis as possible.
16. I think it is unnecessary to say more. There are criticisms to be made of what happened in this case. As I say, Ms Giovanetti accepts the validity of these criticisms. Mr Nathan submits too that it would be desirable for me to make some form of declaration in the light of what has happened. I do not regard that as necessary. I have said what I have, it will be in the judgment and can be read by anyone who wishes to read it and can be taken into account. As I say, it seems to me that it is quite unnecessary to make a formal declaration.
17. Having been detained, he was served with the relevant form, which is a form IS91R. That form sets out the reasons for detention and the factors, of which there are 14, upon which the decision was reached. The form says on its face that:

"Detention is only used when there is no reasonable alternative available. It has been decided that you should remain in detention because..."

And then there are various boxes to be ticked and the two ticked in this case are:

"a. You are likely to abscond if given temporary admission or release."

And:

"c. Your removal from the United Kingdom is imminent."

Then the factors that are ticked are:

"1. You do not have enough close ties (e.g. family of friends) to make it likely that you will stay in one place."

And:

"7. You have not produced satisfactory evidence of your identity, nationality or lawful basis to be in the UK."

Frankly, 7 adds nothing because they simply rely on the fact that his decision has been made that he has no right to remain there. Thus the detention was not only on the basis that removal was imminent but also on the basis that he was said to be likely to abscond. There is, of course -- and indeed it was exercised by this claimant -- a right to seek bail. He made an application on 8th April for bail. That was refused and he made a further application on 19th April, which was allowed.

18. Mr Nathan complains that on each occasion the Adjudicator was informed that the Home Office was expediting or seeking to expedite the Judicial Review proceedings, but, even by the 19th, there was no acknowledgment of service. That, I think, with respect, is not an entirely fair criticism since I am told that the bundle was not served on the Treasury Solicitor until 27th April; that, of course, instructions had to be taken; the Treasury Solicitor had indicated that expedition was going to be sought -- that was on 14th April -- and apparently the acknowledgment of service was actually served on the 23rd. Accordingly, as it seems to me, that criticism by Mr Nathan is not born out by the facts and it is perhaps of significance to note that the first Adjudicator, on 8th April, decided that it was not an appropriate case for bail.
19. The submission had been made that the Home Office policy on detention was not accessible. The need for accessibility stems from a decision of the Court of Appeal in Nadarajah v Secretary of State for the Home Department [2003] EWCA Civ 1768. The problem in that case was that, although the policy which was set out in the relevant part of the Home Office manual in relation to detention indicated that one of the grounds of detention was imminent removal, it was not said in terms that detention on that ground would not be maintained if Judicial Review proceedings were in being, as indeed it was the policy of the Secretary of State to take that course. That was in evidence in January but what was not known was that a indication by solicitors that Judicial Review was to be sought in the terms of the concordat was not regarded as a reason for release from detention and that was criticised by the court. What was said, at paragraph 64, of the judgment, under the subheading "Is the policy accessible?" is this:

"We shall approach this question on the basis of the evidence relating to the appeals before us. In The Sunday Times v The United Kingdom [1979] 2 EHRR 245, a case dealing with Article 10 rights, the [European Court of Human Rights] held at paragraph 49 that the phrase 'prescribed by law' in Article 10(2) required that:

"'the law must be adequately accessible: the citizen must have an indication which is adequate in the legal circumstances of the legal rules which are applicable to the given case.'

"65. Another requirement recognised in that decision was that the law should enable those affected by it reasonably to foresee the consequences of their actions. Of course, if the law is not accessible, this requirement will also not be satisfied. In our judgment, these principles apply to the question of whether detention of [the respondents] was lawful in the present case.

"66. It was known, because it was published, that imminent removal was one of the reasons for detaining an asylum seeker. The evidence is not clear as to how widely it was known that it was the policy of the immigration service not normally to treat removal as imminent once proceedings challenging the right to remove had been instituted, but those acting for both [those respondents in that case] appear to have proceeded on the basis that this was axiomatic, and it is reasonable to infer that this practice was generally known to solicitors specialising in immigration work. What, on the evidence, was not known was that it was the policy of the immigration service, when considering the imminence of removal, to disregard information from those acting for asylum seekers that proceedings were about to be initiated, however credible that information might be.

"67. In this respect we conclude that the Secretary of State's policy was not accessible, nor was the effect of failure to commence proceedings, of which notice had been given to the immigration service, foreseeable."

They went on to decide that the detention was not lawful because of the failure to make accessible that part of the policy because those acting for Nadarajah could otherwise have insured that Judicial Review proceedings were in being and thus could have avoided his detention.

20. The Secretary of State's policy is being continually updated and reconsidered. That is hardly surprising. It is, of course, appropriate: circumstances change so he will react to those circumstances. But one of the problems was that, apparently, in March of this year, the situation was that, because of the updating, there was no specific policy on detention on the website. That has led to the submission that the policy was not accessible and therefore there was a breach of Article 5, in the terms that Nadarajah indicates, and therefore detention was not lawful.
21. It seems to me that that submission simply does not begin to succeed on the basis of what was told to and known by the claimant. He received the form which told him why he was being detained. It is implicit that the Secretary of State's policy was that he would be detained in the circumstances set out in that form and, accordingly, it was known that that would be the basis for detention. So far as imminence is concerned, there is more force in the concern that the details of how it was to be applied were still not identified. However, the Court of Appeal had said what it had in Nadarajah and there was no indication and no evidence that there had been any material change in the Home Office approach since then.
22. However, that is not material to the point made by Mr Nathan on behalf of his client in this case. The fact is that the reasons for detention were clearly indicated on the form as being a fear of absconding and imminence of removal. Imminence of removal fell away once the Judicial Review proceedings were instituted and it may well be that in the light of Nadarajah there would have been a strong argument that the detention should have ceased immediately as it was known that there was a genuine claim for Judicial Review likely to be instituted. But having said that, it is plain that the initial decision to be taken on 27th March cannot be attacked as being unlawful and, indeed, Mr Nathan very properly accepts that that is the position.
23. But I emphasise that, in the circumstances of this case, it was not only the imminence of removal which was given as a reason for detention but also the fear that he might abscond. Whether that fear was one which as a matter of fact was well based or not, is nothing to the point. That does not go to the lawfulness of the reliance upon it. It goes very much to whether bail should have been granted and whether it was necessary to detain, but the fact that he was being told that his representations had been rejected and that there was no right of appeal was an indication to him that he would have to leave the country and, in the light of the knowledge that he did not want to leave the country, the fact that he had no specific family ties here was something upon which the Secretary of State was entitled to rely -- however weak that reliance may, on the facts, have been said to be -- to justify a fear of absconding. After all, in many cases the prosecutor will, in a criminal case, rely on the fear of absconding and the court may decide that there was really nothing in it but it does not make the detention unlawful. It merely indicates that bail is appropriate and I must, of course, make the point that the grant of bail presupposes that the detention is lawful because, if there is a breach of bail, then there will be a return to detention. So bail is something which is separate from a consideration of the lawfulness of the detention and indeed that is matter which has been made clear by the European Court of Human Rights, that a right to obtain bail does not operate as a satisfaction of the Article 5 requirement that there be a right to determine the lawfulness of detention within a reasonable time.
24. In those circumstances, it seems to me quite impossible to say that the detention in March and April 2005 was unlawful and accordingly I reject the claim based on that allegation.
25. Mr Nathan did raise a point upon the decision to remove the right to work but I do not need to go into that in any detail because he accepted, as he had to, that the claimant was not within the words of the policy in that regard, since he had exhausted his rights to remain in the appeal process and, accordingly, he could only rely upon an exercise, by the Secretary of State, of discretion outside the terms of the policy. Mr Nathan very properly accepted that the court could not properly make any order to compel the Secretary of State to exercise in the claimant's favour.
26. Accordingly, for the reasons that I have given, I must reject the claims made by this claimant, save and except in relation to the October 2003 detention which, for the reasons, again, that I have the already given, I will stand over for further consideration in due course.
27. I do not think there is need, is there, to give any time for that? Obviously I do not want it to be hanging around. In itself, it cannot justify a bar to removal because the matter could be pursued if there is any question of claim for damages without the claimant being in the country.
28. MR NATHAN: I would suggest that the removal should be stayed pending resolution of the issue because, for the purposes of taking instructions, I do not have the authority fully to hand.
29. MR JUSTICE COLLINS: Well, there is such a thing as the telephone.
30. MR NATHAN: Well, my Lord, that presupposes that communications in Dragash are sufficient for those purposes and the indications are that it is very primitive in the Dragash area of Kosovo. My Lord, further I would suggest that the current authority -- I think the case is called Kwakwa(?) -- indicates that, while civil proceedings are outstanding -- I am not sure whether it is a Court of Appeal authority or an Administrative Court authority -- that whilst civil proceedings are outstanding it would be unfair for a litigant to be removed from the jurisdiction thereby--
31. MR JUSTICE COLLINS: It depends on the circumstances. It depends on the nature of the proceedings and on the need for instructions. Frankly, you can take all the necessary instructions on the question of damages, because there is nothing else, from your client in the next day or so and so far as the substantive issues are concerned, you have it from your client and, without any of that, it is an argument based upon what is to be made of the memorandum, as far as I can see. There is nothing that your client needs to deal with specifically.
32. MR NATHAN: Certainly, with regard, my Lord, to the October 2003 detention, I will be asking for your Lordship's direction to the Secretary of State to provide -- in order to obviate the need of going to the Secretary of State's Subject Access Bureau -- a direction that the Secretary of State provide the full minutes on the file. Those can be applied through the Data Protection Act.
33. MR JUSTICE COLLINS: What minutes are we after?
34. MR NATHAN: The entire file minutes, to indicate -- we have the minute between 17th October 20th October. We --
35. MR JUSTICE COLLINS: If it is a question of discovery and you are seeking specific discovery then you can certainly make an application but I am not quite clear what further material there might be.
36. MR NATHAN: That material will give rise to the possibility -- and I note Mr Quick's statement that it is apparent that, as of 20th October 2003, the Secretary of State was of the view that there was not sufficient protection available for Goranis. Was that the Secretary of State's position in May 2003?
37. MR JUSTICE COLLINS: Ms Giovanetti, how long will you need to put forward this? It is in your interest too, as a matter of governing procedure, to deal with this quickly.
38. MS GIOVANETTI: My Lord, it is our submission that Mr Nathan already has the relevant files. It covered that three day hearing. Just as he had a reason to grant an official--
39. MR JUSTICE COLLINS: No, I entirely accept that and I am not minded to make any order that goes beyond that, unless of course there is some other memorandum that is directly material to that, and you must obviously produce that and, indeed, when you put in your evidence, I imagine you referred to other documentation.
40. MS GIOVANETTI: Absolutely, and all the relevant policy documents for the period in question, which will then be difficult to put together. I am intending to do that--
41. MR JUSTICE COLLINS: How long?
42. MS GIOVANETTI: We would ask for 14 days but I would grateful, because I am not quite clear--
43. MR JUSTICE COLLINS: Yes, I am inclined to --
44. MS GIOVANETTI: We could probably get the policy within seven days but we would want to make sure there are no exceptions--
45. MR JUSTICE COLLINS: No, fourteen days is reasonable. The only question is whether I direct any holding of his removal until we have done that. It will give him a chance to consider whether they need to take any specific instructions on any particular part. I cannot see any problems but equally I do not want to put in any --
46. MS GIOVANETTI: Could I take instructions on this?
47. MR JUSTICE COLLINS: Yes.
48. MS GIOVANETTI: We are willing to give an assurance that no steps will be taken to remove the claimant within the next 14 days.
49. MR JUSTICE COLLINS: I think I should say 21. No steps within the next 21 days, I do not think I can give you more than that. What I shall say is that no steps will be taken before seven days have elapsed after they have served their material, so if, for whatever reason, they find they have taken more than 14 days, it will not prejudice your client.
50. MR NATHAN: My Lord, I know seven days seems like a long time but when there are deadlines to be met and the like.
51. MR JUSTICE COLLINS: I said no action would be taken before 7 days. They will have to arrange a flight and so on and it is not a question -- I am not envisaging, and indeed I would be very upset, if they played that trick of taking him into custody to be removed the next morning. They must not do that.
52. MS GIOVANETTI: No. I am in a position, on instructions, to give an assurance that the claimant will not be removed in the next 21 days. I am not in a position or given instructions that he would not be detained within that period. That has to be assessed on the merits by the responsible officers.
53. MR JUSTICE COLLINS: That, of course, I fully understand. What I would like is seven days after you served. I am assuming you will serve within 14 days but, if, for any reason, there is a delay, then he must have seven days afterwards. I am afraid, Mr Nathan, in the circumstances I am not prepared to give you more than that.
54. MR NATHAN: My Lord, I would ask: what will be disclosed? I am conscious of the time, my Lord, but in light of your judgment, there are a number of applications that I seek to make.
55. MR JUSTICE COLLINS: You had better make them.
56. MR NATHAN: First of all, we would be grateful -- we have been seeking disclosure from the Secretary of State's entire policy with regard to Gorani between 1999 and to date. I do not know if that is --
57. MR JUSTICE COLLINS: I am sorry, that is nothing that I can order now. It has no relevance to my decision. You will have to pursue that with the Home Office.
58. MR NATHAN: That is a matter that does fall to be considered on the issue upon which your Lordship refused permission earlier today. Now, I appreciate that your Lordship refused me permission to argue the point relating to Saad and Rashid --
59. MR JUSTICE COLLINS: You will have to make an application. It has nothing to do with this case now.
60. MR NATHAN: Well, I seek permission to appeal your earlier judgment.
61. MR JUSTICE COLLINS: You can seek permission to appeal but you will not get it. You will have to apply to the Court of Appeal. There is nothing in this, in my view, that justifies it in regard to leave to appeal. There is no point of importance and it is depending entirely on its own facts.
62. MR NATHAN: My Lord, with regard to your judgment, there are a couple of matters just of note. Your Lordship referred to the brother being conscripted in January 1999.
63. MR JUSTICE COLLINS: That is wrong, is it?
64. MR NATHAN: I believe he was conscripted earlier. I think, from recollection, October or November. He served a longer period.
65. MR JUSTICE COLLINS: That can be amended.
66. MR NATHAN: With respect to our brother Europeans in Greece, I think your Lordship referred to the Republic of Macedonia. That has been an issue of international law. I understand the Greek authorities continue to insist that it cannot be referred to as the Republic of Macedonia. It is the former Yugoslavian--
67. MR JUSTICE COLLINS: I should not have said that? It calls itself the Republic of Macedonia. I must say that I do not intend to give any support to anyone in what it is properly to be called.
68. MR NATHAN: I understand there are problems in Greece relating to possible separatist movements.
69. MR JUSTICE COLLINS: Well, I know. I have read that.
70. MR NATHAN: Your Lordship dismissed the fresh claim on the basis that the fact that the appellant deserted from the Serbian army means that he should not be regarded as having association. My Lord, in my submission it is a factual reason but it is one that I would seek to challenge on the basis that how could an individual--
71. MR JUSTICE COLLINS: Mr Nathan, this is not the time to try to reopen the argument. If you feel that you have good grounds for seeking leave to appeal, then do so, but, as I say, it is not appropriate, I am afraid, to reopen the argument. I have made my decision, rightly or wrongly.
72. MR NATHAN: My Lord, on another factual error, if I may call it one: on 22nd March, your Lordship referred to be claimant being detained to be removed the following morning --
73. MR JUSTICE COLLINS: Yes, it was the day after.
74. MR NATHAN: It was the day after. He was detained on 22nd March, he was only notified of the removal on the 23rd, in the evening, at the same time of --
75. MR JUSTICE COLLINS: The point is that the notification of removal was not until the night before.
76. MR NATHAN: 5.30pm, office hours had closed. My Lord, I am concerned that, at the time my learned friend indicated that the bundle was not served until 7th April, the full bundle, in her submission. My instructing solicitor is outside of the room. It was referred to in your Lordship's judgment thereafter.
77. MR JUSTICE COLLINS: So I was told.
78. MR NATHAN: Indeed. I appreciate that is what has been told and I have no doubt that no-one seeks to mislead but, my Lord, that does appear to have been a material factor in your Lordship's judgment.
79. MR JUSTICE COLLINS: No, it was not particularly material. It was just part of the history.
80. MR NATHAN: Well, if I can assist your Lordship, the only bundle--
81. MR JUSTICE COLLINS: If I may make it clear, you have failed, on your client's evidence, on the basis, essentially, that there was a ground of a fear of absconding, which was a ground they were entitled to rely on. The only point of that was that it went to the issue, which we raised, of the Adjudicator allegedly being misled. But that, in fact, is not a material consideration anyway.
82. MR NATHAN: I am grateful, my Lord. If it does assist, the bundle was served in full on 30th March --
83. MR JUSTICE COLLINS: It may have been served but whether it was received, I do not know.
84. MS GIOVANETTI: We have a record of a Home Office file, with a solicitor's file, dated 7th April recording that the full bundle had only been served that day.
85. MR JUSTICE COLLINS: Well, I am not going --
86. MS GIOVANETTI: It is disputed and we do not accept Mr Nathan in that this matter of dispute--
87. MR NATHAN: It clearly is irrelevant--
88. MR JUSTICE COLLINS: It is not a matter of dispute, it is just part of the history. If it is wrong, it is wrong, but I do not think it is.
89. MR NATHAN: I appreciate that I am taking up your Lordship's time. There is one further matter, If I could just review, your Lordship's judgment.
90. MS GIOVANETTI: My Lord, could I take the opportunity, whilst Mr Nathan is reviewing my Lord's judgment, because I was slightly concerned that I may have given the wrong impression, unintentionally. I am not entirely sure the Home Office review of the position was precisely the same as my Lord's.
91. MR JUSTICE COLLINS: No, I said that I am hoping -- that I am aware that the there might be a discussion.
92. MS GIOVANETTI: Yes, I am grateful.
93. MR JUSTICE COLLINS: I fully understand that and I await with interest, but the only point I am making is --
94. MS GIOVANETTI: As do we all. I know no more than I have passed on to my Lord today.
95. MR JUSTICE COLLINS: I am aware that we are having some discussions.
96. MR NATHAN: My Lord, with regard to the fear of absconding, your Lordship in your judgment referred to the matter of fact material going to the bail but not to the lawfulness of the detention. My Lord, I do not believe, and I am sure your Lordship will correct me -- but I do not believe your Lordship in the judgment referred to my argument that, given that the claimant had been on temporary admission for the previous 6 years, without any failure to comply, that it was perverse that, having detained him, purely on the basis of imminent removal--
97. MR JUSTICE COLLINS: May I say, Mr Nathan, that, if it is not as clear as it ought to have been, that I do not regard it as perverse. It may be weak but I do not think you can persuade me that it would be irrational for the Secretary of State to take a view that there would be a detention and there was a fear of absconding. As I say, and as I think I made it clear when I said about the criminal analogy, there may be a very weak ground but I do not think the detention was regarded as unlawful. Unless he was maliciously held, there is no grounds that he was deliberately decided to be detained for no good reason. There is no possibility of finding that to be the case.
98. MR NATHAN: My Lord, my only further applications are detailed assessment of the claimant for public funding costs.
99. MR JUSTICE COLLINS: You may have that.
100. MR NATHAN: I appreciate that we have lost on all factors. I raised an issue earlier in dealing with consideration of the concordat. There is a--
101. MR JUSTICE COLLINS: May I just raise one matter, which may be material for your consideration. Ms Giovanetti has not at the moment made an application, which she may do, for costs. If you do succeed on the October point in persuading me, or the court, that the detention was unlawful, and if you do succeed in obtaining some damages, you may lose all those in the partial satisfaction of any costs, because you have lost substantially on a number of issues and so, at least a partial order for costs would seem to be appropriate in due course. I mean, it is right that no application is made at this stage because the case is not over but it is matter that you will have to bear in mind in deciding whether it is actually worth pursuing. Ms Giovanetti is right not to apply for costs at this stage because -- but that is and will be a consideration for you to bear in mind. I say no more on that. It is a shot over the bows.
102. MR NATHAN: My Lord, I do not need trouble the court any longer.
103. MR JUSTICE COLLINS: Thank very much.