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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Hyseni & Anor, R (on the application of) v Secretary of State for the Home Department [2005] EWHC 252 (Admin) (10 February 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/252.html Cite as: [2005] EWHC 252 (Admin)

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

		Royal Courts of Justice Strand London WC2
		10 February 2005

1. MR JUSTICE HENRIQUES: This matter comes before me by order of Wilson J dated 4th February 2005.
2. Mr and Mrs Hasani are citizens of Serbia and Montenegro, (Kosovo). Both seek injunctive relief and permission to challenge decisions of the Secretary of State for the Home Department as follows: firstly, the decision dated 2nd February 2005 to consider Mrs Hyseni as an absconder and liable to detention and removal; secondly, a decision of the same date to detain Mr Hasani; thirdly, a decision of 28th January 2005 and continuing to refuse to reduce the requirement that Mrs Hyseni report weekly.
3. There is a history which it is necessary for me briefly to touch upon. On 24th July 2003 the Secretary of State for the Home Department refused Mr Hasani's asylum application and confirmed directions had been given for his removal from the United Kingdom to Kosovo. In relation to Mrs Hyseni a similar decision was made, dated 24th February 2004.
4. Both had alleged that removal to Kosovo would breach the United Kingdom's obligations under the Refugee Convention and the Convention on Human Rights. Both appealed and conjoined appeals were dismissed by Ms M N Lingard Adjudicator on 6th September 2004. It is to be noted that the Adjudicator commented that unnecessarily large bundles of documents were submitted by both parties.
5. In relation to Mr Hasani, the Adjudicator stated:

"I cannot, even were these accounts entirely credible, assess the first named appellant as having been persecuted or suffered Article 3 treatment in the past in relation to these claims."

6. In relation to Mrs Hyseni, whilst accepting that she had been raped, she commented:

"I reject, however, that there was a causal link between the rape incident and the first and second appellants' departure from Kosovo 4/5 years after the rape incident."

7. The rape incident was over ten years ago and the Adjudicator concluded that there was no reasonable likelihood that such event would occur again. She considered the medical information and the mental health problems of Mrs Hyseni at very considerable length and in detail. She made reference to Dr King's report. She had available full details of Mrs Hyseni's medical history. She concluded that in Kosovo Mrs Hyseni would receive treatment for post-traumatic stress. She observed that the Centre for Stress Management and Education, although a small organisation, is concerned with treating or supporting families who suffer from post-traumatic stress.
8. There was before her a report dated January 2004 entitled "Mental Health Services in Kosovo" by Dr Helen Bolderson and Karen Simpson, to which I will return in due course. Suffice it to say that is a lengthy report running from page 237 to page 312 in the bundle before the Adjudicator.
9. Both appellants appealed to the Immigration Appeal Tribunal and on 22nd November 2004 Mr Goldstein, Vice President, dismissed both appeals, observing that the grounds of appeal, running to 14 pages in length, could have been more conveniently effected in more concise form. He concluded that an appeal would have no arguable prospect of success. Thereafter a statutory review in Mrs Hyseni's case affirmed the decision on 20th December 2004 whereby all appeal rights were exhausted in both cases and neither applicant had any further lawful basis to be in the United Kingdom.
10. Thereafter, on 1st February 2005, Messrs Glazer Delmar Solicitors wrote to the Department's Initial Consideration Unit, purporting to submit a fresh application and enclosing a letter from a consultant clinical psychologist, Mary Robertson, dated 13th July 2004. That letter was written some 28 days before the appeal was heard by the Adjudicator. They also enclosed a letter from her dated 1st February 2005, which is substantially repetitive of the earlier report, and an UNMIK notice on the availability of adequate medical treatment for post-traumatic stress disorder in Kosovo dated January 2005, which states by way of conclusion:

"It remains the position of UNMIK that persons suffering from and undergoing treatment for PTSD should not be forcibly returned to Kosovo."

11. It should be stated at this point that the Home Office have consistently, and indeed today, indicated that they do not seek to remove Mrs Hyseni forcibly and even today, if she wishes to return voluntarily, that she will be given every assistance to do so. That has throughout been the stance of the Home Office.
12. In the UNMIK document it states:

"The largest NGO, the Kosovo Rehabilitation Centre for Torture Victims (KRCT), is active in seven locations across Kosovo, each serving regions with a population of some 300,000 people. However, it remains poorly staffed. Overall, the staff consists of 4 part-time psychiatrists and one part-time psychologist serving each region once a week. The Centre for Stress Management and Education (CSME), another NGO, can also make only a limited contribution to the treatment of PTSD because it has only one part-time psychologist that it shares with KRCT."

13. Whilst this information was not in exactly those terms before the Adjudicator, there was before the Adjudicator, in the report to which I have referred, substantial information as to the treatment available for PTSD in Kosovo. Furthermore, appended to that report at appendix C was the UNMIK "Introductory Note: Information Format for Non-Voluntary Returns to Kosovo". In that report, at page 304 of the bundle, these words appear:

"We further ask that no-one with an illness or injury that is untreatable in Kosovo should be forcibly returned until such time as the need for treatment has ended."

14. In a careful address to me, Mr Waite has demonstrated, by reference to the January 2005 two-page document from UNMIK, that each and every point contained in that letter can be found by way of mirror image in the Mental Health Services in Kosovo report dated January 2004, which was before the Adjudicator. At paragraphs 65, 69, 71 and 74 of that report exactly the same points are made which are reiterated in the January 2005 report. In particular, Mr Waite stresses the fact that in the last two lines it is stated:

"It remains the position of UNMIK that persons suffering from and undergoing treatment for PTSD should not be forcibly removed to Kosovo."

15. That was the position in January 2004 and it was very clearly before the Adjudicator at the time.
16. The simple question is: is this a fresh claim or, as the defendant contends, no more than a reiteration of the earlier claim? The law on fresh claims was carefully reviewed by Jackson J in the case of Ratnam v Secretary of State for the Home Department [2003] EWHC 398 Admin He began by making reference to paragraph 346 of the Immigration Rules, which provides:

"Where an asylum applicant has previously been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in paragraph 334 will be satisfied. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which (1) is not significant or (2) is not credible or (3) was available to the applicant at the time when the previous application was refused or when any appeal was determined."

17. As I have already indicated, this very information was indeed available to the Adjudicator. The remainder of that part of Jackson J's judgment reviews the authorities of ex parte Manvinder Singh, ex parte Ravichandran No 2, and Bensaid v the United Kingdom [2001] 33 EHRR 10.
18. In my judgment, this purported claim is not sufficiently different from the earlier claim. Indeed, it is in my judgment identical to the earlier claim. There is no deterioration, or significant deterioration, in the condition of Mrs Hyseni. I refer in particular to a letter written by Mary Robertson, the consultant psychiatrist, dated 1st February 2005. The first sentence of the concluding paragraph is this:

"In my opinion there would be a significant deterioration in Mrs Hyseni's mental health if treatment for her PTSD would be discontinued."

19. There is no suggestion in that letter that there is at present any deterioration.
20. The material or information now relied upon was before the Adjudicator, albeit in a different form, in the lengthy document to which I have referred. The essential ingredients of this claim accordingly are identical to those before. There is no difference and I have no doubt that this was not a fresh claim. Accordingly, the claim for injunctive relief must fail and permission to challenge the decisions of the Secretary of State for the Home Department of 2nd February 2005 and 28th January 2005 must likewise be refused.
21. Ms Gordon in her address indicated that in the event of this purported fresh claim being rejected as not being a fresh claim, it was intended that a further application would be made to the court, and sought to put down a marker for the benefit, primarily, of the Home Office but also apparently for the court.
22. She handed to me a letter dated 3rd February 2005 in which Mrs Hyseni is said to be in a state of extreme distress as immigration authorities have detained her husband. She is agitated and cannot stop crying and she feels too afraid to stay at home. She is terrified of being returned to Kosovo and says that she would be better off dead. She is kept awake at night and is extremely upset.
23. In the event of a further purported claim being made, this court will have to consider whether or not such is an abuse of the process of this court. The purported claim which I have dealt with today and rejected comes very close in my judgment to an abuse of the process of the court. It had not the slightest prospect of success. It has been compiled at very substantial public expense.
24. Having regard to the observations of both the Adjudicator and the Vice President as to the volume of material placed before them -- and I heartily concur with both their observations -- the Legal Services Commission must scrutinise this file, and other files submitted by Messrs Glazer Delmar, with a view to ascertaining whether there has been an unjustified dissipation of public funds.
25. It is wholly unnecessary that cases should be put before courts in the volume in which this case was put before the Adjudicator. It makes the smooth working of this court extremely difficult to maintain and places a burden on the public purse which is in my judgment apparently excessive, though it is a matter for the Legal Services Commission to consider rather than myself.
26. This application fails, as does the application for interim relief.
27. MR WAITE: My Lord, this is not material, given your conclusion that the claim is identical, but paragraph 346 has actually been replaced by a new paragraph in the Immigration Rules.
28. MR JUSTICE HENRIQUES: Thank you. Is it in the same terms?
29. MR WAITE: Yes. The test is it will amount to a fresh claim if it is significantly different from the material that has been considered.
30. MR JUSTICE HENRIQUES: I am grateful to you. The test, I think, of material difference may well refer back to the original section.
31. MS GORDON: My Lord, I obviously hear what you have said in your judgment, but I think I am duty bound to ask for the usual public funding order in this case.
32. MR JUSTICE HENRIQUES: The application is refused for the reasons I have just given.