R (Karas and Miladinovic) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby:,MR JUSTICE MUNBY |
| Judgment Date | 07 April 2006 |
| Neutral Citation | [2006] EWHC 747 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6239/2004 |
| Date | 07 April 2006 |
[2006] EWHC 747 (Admin)
Mr Justice Munby
Case No: CO/6239/2004
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Amanda Weston (instructed by Sutovic & Hartigan) for the claimants
Ms Lisa Giovannetti (instructed by the Treasury Solicitor) for the defendant
The first claimant, Predrag Karas, who I will refer to as the husband, and the second claimant, Stanislava Milandinovic, who I will refer to as the wife, are now married. When the story begins they were not married and in fact had not even met.
Both the husband and the wife are Croatian nationals of Serbian origin. The wife arrived in this country on 21 June 1997 with leave to enter for two years as an au pair. That leave having expired on 21 June 1999 she obtained a student visa expiring on 31 January 2003. In the meantime the husband had arrived in this country on 22 January 1999 and claimed asylum on arrival. He and the wife met at a party on New Year's eve 31 December 1999.
On 17 March 2000 the Secretary of State rejected the husband's claim for asylum. On 16 October 2000 he refused the husband leave to enter. The husband appealed. His appeal was dismissed by the Adjudicator (Mr S A Pedro) on 2 July 2001. He did not seek permission to appeal to the Immigration Appeal Tribunal.
In June 2001 the husband and the wife started living together.
On 5 November 2001 the Secretary of State issued directions for the husband's removal on 15 November 2001. On 14 November 2001 – at the very last minute, and notwithstanding that they had been instructed by the husband as long before as 14 September 2001 – the husband's solicitors, Messrs Sutovic & Hartigan, wrote to the Secretary of State requesting that the husband's case be considered as a fresh claim and/or outside the immigration rules and on compassionate grounds.
Time passed. On 5 September 2002 the husband and the wife married. More time passed. The Secretary of State had still not responded to the claim lodged by the husband on 14 November 2001. On 13 January 2003 Messrs Sutovic & Hartigan, instructed by now also for the wife, wrote to the Secretary of State seeking on her behalf that she be added to her husband's outstanding claim for asylum. There appears to have been no response to that letter.
On 24 March 2004 Messrs Sutovic & Hartigan wrote to the Secretary of State making further representations on behalf of the husband in support of his claim, which was now expanded to include specific reliance upon both Article 3 and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Enclosed with that letter was the husband's written statement dated 8 March 2004. More time passed, seemingly without any substantive response of any sort by the Secretary of State to the three letters dated 14 November 2001, 13 January 2003 and 24 March 2004.
In about May 2004 the wife became pregnant, though the Secretary of State was not aware of this until October 2004 (see below).
October 2004 arrived. I must now trace the history of subsequent events in some detail.
All this time – this is the unchallenged evidence of the wife – her husband had been reporting on a weekly basis to the Croydon Immigration Office. She says, and this again is unchallenged, that he never failed to report. In fact he reported as usual on Monday 10 October 2004.
The same day (10 October 2004) the Secretary of State gave notice to the relevant airline of directions for the removal of the husband and wife to Croatia on a specified aircraft leaving Heathrow at 7.40 am on 12 October 2004. The husband and wife had no knowledge that this had been done. Indeed the relevant documents were not produced by the Secretary of State until 22 February 2006, and then only when I asked to see them. The documents which were then produced show that the notice of directions to remove, and an accompanying notification to the Immigration Office at Heathrow of second port removal, were faxed by the Secretary of State to the Immigration Office at Heathrow at 1.16 pm on 10 October 2004.
At approximately 8.30 pm on 11 October 2004 the husband and the wife were detained by immigration officials at their home in Northolt and told that they were to be removed to Croatia the next morning. I think I should set out in full the account which the wife gave in a written statement dated 12 September 2005:
“On 11 th 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 th 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 12 th 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 11 th 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 12 th 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 17 th October 2004.”
I should add to this account what is said in the grounds filed in support of the subsequent application for judicial review (see below), an account verified as true by Ms Stojsavljevic-Savic of Messrs Sutovic & Hartigan and nowhere challenged by the Secretary of State. At about 10.30 pm on 11 October 2004 friends of the husband and the wife contacted Messrs Sutovic & Hartigan, who eventually made contact with the husband and the wife at about 1.30 am in the early hours of the next morning (12 October 2004).
It is not clear on the evidence precisely when (if ever) the husband and the wife and Messrs Sutovic & Hartigan first received a copy of the removal directions. Nor is it clear on the evidence when they first received a copy of an undated letter from the Secretary of State addressed to Messrs Sutovic & Hartigan headed ‘Notice of Refusal of Leave to Remain under the Immigration Act’ and setting out the Secretary of State's...
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