Collaku, R (on the application of) v Secretary of State for the Home Department

A fresh claim requires material capable of showing a realistic prospect that the claimant would succeed. Country guidance identifying possible risks to individuals does not, without more, establish a material change for an entire minority group. The individual factors relied on must be assessed against the earlier findings.

Immigration detention must have a lawful basis and the relevant policy must be sufficiently accessible and foreseeable. A weak factual basis for fearing absconding may bear on bail or the necessity of detention without making detention unlawful. Where removal is challenged by a genuine proposed judicial review, officials must comply with the agreed procedure and must not prejudge the merits.

The claimant, a Gorani from Kosovo, sought judicial review of the Secretary of State’s refusal to treat further representations as a fresh asylum or human-rights claim. He relied principally on an August 2004 UNHCR paper concerning possible risks to individual Goranis. He also challenged detention in October 2003 and between March and April 2005, and complained about the refusal to defer removal under an agreed procedure for proposed judicial review applications.

The court considered whether the later country material materially changed the position, whether the detention policy was sufficiently accessible, whether the stated grounds justified detention, and whether the removal process had been handled lawfully.

1. Fresh claim. The August 2004 UNHCR material recognised that individual Bosniaks and Goranis might face a well-founded fear of persecution where specified aggravating factors existed. It did not establish a material change affecting Goranis generally. The claimant’s previous military service, desertion and relationship with a Serb commander’s daughter did not provide a realistic basis for concluding that he fell within the identified risk category. The refusal to treat the representations as a fresh claim was therefore lawful.
2. October 2003 detention. A late memorandum raised an arguable issue that detention may have been inconsistent with the Home Office policy and with the asserted imminence of removal. The defendant was permitted to provide further evidence. That issue was stood over for further consideration.
3. March and April 2005 detention. The principles concerning accessibility and foreseeability of detention policy identified in Nadarajah v Secretary of State for the Home Department [2003] EWCA Civ 1768, with reference to The Sunday Times v The United Kingdom [1979] 2 EHRR 245, applied. The detention form clearly identified fear of absconding and imminent removal. Once judicial review proceedings were instituted, imminence of removal ceased to provide a sufficient basis, but the initial detention decision was not unlawful because fear of absconding was an independent stated ground. The weakness of that ground went to bail and the necessity of continued detention, not necessarily to legal validity.
4. Removal procedure. The Home Office official should have followed the concordat requiring removal directions to be suspended for a short period when a genuine judicial review application was proposed. The official was wrong to prejudge the merits. The court criticised the practice of delaying decisions and arranging removal at short notice, but considered a formal declaration unnecessary.
5. The challenge to removal of the right to work failed because the claimant fell outside the relevant policy and the court could not compel a favourable exercise of discretion. The claims were dismissed save for the reserved October 2003 detention issue. The defendant gave an assurance that removal would not take place for 21 days and, in any event, for seven days after service of the further material.

The judgment records that the claimant’s asylum appeal was dismissed by an adjudicator in May 2003 after the Secretary of State had refused the original claim on 22 October 2001. The present judicial review was determined at first instance by the Administrative Court.