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

Detention pending removal is not automatically unlawful because outstanding representations may constitute a fresh asylum claim. The power remains subject to the purposes for which it exists and to the requirement that detention lasts no longer than reasonably necessary for removal. Once representations become known, the Secretary of State must decide whether detention should continue, having regard to the realistic prospect and timing of removal and relevant detention guidance. Whether detention is lawful is fact-sensitive. A decision on a fresh claim may contain a failure to consider a relevant document, but judicial review relief may still be refused where that material could not realistically have altered the outcome.

The claimant, a Turkish national and failed asylum seeker, sought judicial review of decisions to detain him pending removal and to reject further representations as a fresh asylum claim. The representations had been made before detention, although they had not reached the attention of the relevant officials. They included documentary material, a medical report and a witness statement from the claimant’s sister.

The Secretary of State issued removal directions for a flight 11 days after the detention decision and rejected the representations under paragraph 353 of the Immigration Rules. The central issues were whether detention remained lawful while the representations were considered and whether the fresh-claim decision lawfully addressed the material submitted.

1. Detention pending removal. The claim challenging detention was dismissed. The statutory power to detain pending removal is not precluded merely because representations have been made, whether or not the Secretary of State knew of them when detention began. The issue is fact-sensitive and the statutory scheme does not impose an absolute bar in such circumstances.
2. The power must nevertheless be exercised only for the purpose for which it exists and only for the period reasonably necessary to secure removal. Once the Secretary of State knows of outstanding representations, a decision must be taken whether to release the person or continue detention. The detention policy, including the need to use detention sparingly, consider alternatives and assess the likelihood and timescale of removal, is relevant to that decision.
3. The present case was materially different from R (Karas and Miladinovic) v Secretary of State for the Home Department and R (E and Others) v Secretary of State for the Home Department, where detention was oppressive or unreasonable on the particular facts. It was closer to R (WM) v Secretary of State for the Home Department. Removal 11 days after the direction could properly be regarded as imminent. Given the claimant’s immigration history and the fact that the representations were considered well before the proposed removal date, continued detention was not unreasonable.
4. Fresh asylum claim. The Secretary of State was entitled to conclude under paragraph 353 of the Immigration Rules that the documents did not create a real prospect that a different adjudicator would reach a different conclusion. The material largely corroborated matters already accepted and considered in the original asylum determination, without materially adding to the claim.
5. The Secretary of State had failed to address expressly the claimant’s sister’s statement, which was a relevant matter. That was a technical deficiency, but the statement merely corroborated the existing account and could not realistically have changed the assessment. The challenge to the fresh-claim decision therefore also failed. The Secretary of State was awarded 85 per cent of her costs.

• Administrative Court: Permission for judicial review was granted by Munby J on 24 January 2007. Mr Justice Wilkie dismissed both grounds of challenge and ordered that the Secretary of State recover 85 per cent of her costs.