House of Lords
|Session 2001- 02
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|Judgments - Regina v Secretary of State For The Home Department, Ex Parte Zeqiri
HOUSE OF LORDS
Lord Slynn of Hadley Lord Mackay of Clashfern Lord Hoffmann Lord Millett Lord Rodger of Earlsferry
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(ORIGINAL APPELLANT AND CROSS-RESPONDENT
EX PARTE ZEQIRI (FC)
(ORIGINAL REPONDENT AND CROSS-APPELLANT)
ON 24 JANUARY 2002
 UKHL 3
LORD SLYNN OF HADLEY
1. I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Hoffmann. I gratefully adopt his statement of the facts and I agree with his conclusion for the reasons he gives. I add only a few brief observations.
2. It is important if the Secretary of State is to carry out the United Kingdom's obligations under the Dublin Convention that he should be satisfied that if the applicant for asylum has come from a country intermediary between the country where he has suffered and or fears persecution and the United Kingdom that that intermediary would not send him to another country otherwise than in accordance with the [Geneva] Convention. But in considering this matter from time to time the Secretary of State is entitled to have regard to circumstances existing at such time. In the present case, whatever the position in Germany as shown by the statistics of returns from Germany to Kosovo, when he arrived here it seems to me that it has not been shown that by 2nd November 2000 when the Secretary of State made his decision he could not reasonably have concluded (and certified) that the condition was fulfilled. Indeed it is accepted by the applicant's Counsel that circumstances had changed both in Kosovo and in the statistics of German returns to Kosovo.
3. Although there was some uncertainty and doubt as to the effect of the decision in R v Secretary of State for the Home Department, Ex p Besnik Gashi  INLR 276 and as to what steps the Secretary of State might take I am satisfied on the facts as put to the House that the Secretary of State did not create a legitimate expectation on which Mr Zeqiri could rely, that following the decision of the Court of Appeal, his application for asylum would be considered on its merits. In particular, I do not consider that what was said by Buxton LJ could create a legitimate expectation enforceable against the Secretary of State.
4. The situation was very difficult for the Secretary of State with a large number of applicants, doubts being raised as to Germany's compliance with its obligations under the Convention and the legal challenges to his decision in other cases. It was very distressing for the applicant who had been obliged to leave home to travel across Europe and to wait for three years before knowing whether he would be returned to Germany and thereafter, as he feared, to Kosovo. I have great sympathy for him but it is not possible in my view to say that there are grounds which entitle the House to interfere. How far these matters weigh with the Secretary of State is another matter.
5. Finally, I agree with Lord Hoffmann that the fact that Besnik Gashi's case was looked at on the merits is entirely due to the special circumstances surrounding the legal proceedings and others cannot complain of discrimination which, if it existed in other cases, might provide a ground for challenge.
6. I would accordingly allow this appeal.
LORD MACKAY OF CLASHFERN
7. I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Hoffmann. Subject to the comment I am about to make on one aspect of the case, I agree that this appeal should be allowed and for the reasons that he has given.
8. The application in this case is to set aside the Secretary of State's decision of 16 November 1998 certifying that the conditions in section 2(2) of the Asylum and Immigration Act 1996 were satisfied in Mr Zeqiri's case and the consequent decision of 2 December 1998 to issue directions for his removal to Germany. It also seeks quashing of the decision on 2 November 2000 of the Secretary of State to maintain his certificate.
9. Before Moses J, the Secretary of State maintained that the certificate of 16 November 1998 should not be set aside. Moses J accepted this submission and dismissed Mr Zeqiri's application, in paragraph 86 for four reasons:1.
The certificate dated 16 November 1998 was not quashed by reason of the Court of Appeal decision in R v Secretary of State for the Home Department, Ex p Besnik Gashi  INLR 276.2.
The applicant had no legitimate expectation that his case would be considered substantively in this country in consequence of the decision in Ex p Besnik Gashi. Nor was it unfair to decline such consideration once the appeal against the decision in Ex p Besnik Gashi was withdrawn.3.
The Secretary of State was entitled to decide to maintain the certificate of 16 November 1998 on 2 November 2000. It was not unfair or inconsistent to make that decision on 2 November 2000.4.
Sections 2 and 3 of the 1996 Act do not preclude the maintenance of a certificate, notwithstanding that at the time of the original decision it was made unlawfully.
10. In this House counsel for the Secretary of State accepted that, since Besnik Gashi was a test case, the decision to quash the certificate in that case carried with it the implication that the certificate in Mr Zeqiri's case should also be quashed, and accordingly that the direction for removal, which was made following that certificate, should also be quashed. It follows that a decision of the Secretary of State of 2 November 2000, if it was a decision to maintain that certificate, could not be effective.
11. My noble and learned friend Lord Hoffmann, agreeing with Lord Phillips of Worth Matravers MR, has held that in truth the decision of 2 November 2000 was a new certificate of the Secretary of State certifying that the conditions in section 2(2) of the Act of 1996 was satisfied in respect of Mr Zeqiri on 2 November 2000. As the letter of 2 November 2000 clearly refers to the changed situation for Kosovan Albanians, both in Europe and in Kosovo, I consider that the decision of 2 November 2000 was intended to indicate the Secretary of State's satisfaction that the condition, particularly in section 2(2)(c), was satisfied at that date. The conditions in sub-sections (a) and (b) were satisfied in November 1998 (there was no challenge to that in the Besnik Gashi case) and, of course, remained satisfied on 2 November 2000. Since it is now not in dispute that the Secretary of State could recertify, in my opinion it is right to treat the decision of 2 November 2000 as a decision to certify, as at that date, that the conditions in section 2(2) were satisfied in respect of Mr Zeqiri. The form of the letter of 2 November 2000 did, however, as I have indicated, form an important part of the approach taken by the Secretary of State in this case before Moses J.
12. It having been accepted that Besnik Gashi was a test case, the next question is whether it decided only that the certificate in that case should be quashed, or also decided that the Secretary of State was therefore obliged to give substantive consideration to the application for asylum in the United Kingdom. From the argument before your Lordships, I gathered that there was a dispute between the parties as to what had been said by counsel for the Secretary of State in that case but, in my opinion, the question is whether the judgment itself, properly read, regarded the action the Secretary of State was to take following the quashing of the certificate as a matter on which the court had given judgment or in respect of which the court had merely expressed its understanding of what should happen. In cases affecting the Secretary of State, the court frequently adopts the view that the Secretary of State will be guided by its opinion without the necessity of a formal order of mandamus or declaration and, indeed, an example of the second is to be found in the judgment of Collins J in R v Secretary of State for the Home Department, Ex p Shefki Gashi (unreported) 15 June 2000 referred to by my noble and learned friend Lord Hoffmann. The absence of an order of mandamus in the Court of Appeal's decision in Ex p Besnik Gashi is not therefore conclusive of the matter. There is no sign in the opinions delivered by the Court of Appeal in that case of any substantive discussion of the legal consequences of quashing the certificate there in issue, and this leads me to the conclusion, although not without some difficulty, that Buxton LJ's reference to what follows was his understanding at the time of what would follow, although not a decision upon that matter. On all other aspects of the case I agree with the reasoning of my noble and learned friend, but I would allow the appeal, set aside the certificate of 16 November 1998 and the direction for removal of 2 December 1998, and refuse the application in respect of the letter of 2 November, treating it as a certificate that the conditions of section 2(2) were satisfied in respect of Mr Zeqiri on 2 November 2000.
13. At the beginning of March 1998 the violence between the Serb authorities and ethnic Albanians in Kosovo, which had been gradually increasing over the previous months, flared up alarmingly. On 9 March the United States, United Kingdom and other countries agreed to impose diplomatic and economic sanctions on the Federal Republic of Yugoslavia because of President Slobodan Milosevic's "unacceptable use of force" against the ethnic Albanian majority. The violence continued unabated. Many thousands of Albanian Kosovars fled their homes and country. A year later, at the end of March 1999, Nato commenced a bombing campaign against Yugoslavia. In June 1999 President Milosevic agreed to withdraw the Yugoslav army from Kosovo. Nato forces entered the province and it became safe for Albanian Kosovars to return.
14. On 3 April 1998 Bajram Zeqiri, an ethnic Albanian from Kosovo, arrived in the United Kingdom on the Eurostar from Brussels and claimed asylum. He told an immigration officer that he had left Kosovo on 25 March, crossed to Macedonia on foot and travelled from there to Brussels in the back of a lorry. Inquiries by the Home Office revealed that his story was untrue. He had first gone to Germany and claimed asylum there. Subsequently he had claimed asylum in Belgium.
15. The United Kingdom and Germany are parties to the 1990 Dublin Convention on "determining the state responsible for examining applications for asylum lodged in one of the member states of the European Communities" (European Communities No. 40 (1991)). Article 6 provides that the member state into which an applicant for asylum has irregularly crossed from a non-member state shall be responsible for examining his application. By article 11.1, if a member state with which an application has been lodged considers that another member state is responsible for examining the application, it may "call upon the other member state to take charge of the applicant".
16. The Secretary of State requested the German government to determine Mr Zeqiri's application and on 12 November 1998 the German authorities agreed to do so.
17. The general rule, as stated in section 6 of the Asylum and Immigration Appeals Act 1993, is that during the period between the making of a claim for asylum and its substantive determination by the Secretary of State, the applicant may not be removed from the United Kingdom. But section 2 of the Asylum and Immigration Act 1996 creates an exception to give effect to the provisions of the Dublin Convention:
18. On 16 November 1998 the Secretary of State wrote to Mr Zeqiri certifying that in his opinion the conditions in section 2(2) were satisfied. On 2 December 1998 an immigration officer refused him leave to enter and issued directions for his removal to Germany.
19. On 4 December 1998 Mr Zeqiri issued proceedings for judicial review to challenge the decisions of 16 November and 2 December 1998. The main ground was that the Secretary of State was not reasonably entitled to be of opinion that condition (c) was satisfied. He had not made adequate inquiry into the way the Germans dealt with Kosovo asylum applications. Inquiry would have revealed that there was a serious danger that he would be returned to Kosovo in breach of the Convention.
20. In his notice of application Mr Zeqiri said that at least some of the issued which he raised had also been raised in the case of R v Secretary of State for the Home Department, Ex p Besnik Gashi  INLR 276. Mr Gashi, the applicant in that case, had arrived in England from Germany at the end of 1997 after spending a year in Germany, where his asylum application had been refused. The Secretary of State had certified on 16 March 1998 that he could be returned to Germany. His application was being treated as a test case on the question of the Dublin Convention certification of Kosovars who had come from Germany. It had come before the Divisional Court (Brooke LJ and Sedley J) in November 1998, when Mr Gashi's application had been dismissed. But he was appealing to the Court of Appeal. Mr Zeqiri suggested that his own application should be adjourned until the Besnik Gashi case, including any appeal, had been determined. This was agreed by correspondence on 17 December 1998 and no evidence was filed in Mr Zeqiri's case.
21. Judgement in the Besnik Gashi case was given on 25 March 1999. The court (Evans, Thorpe and Buxton LJJ) dealt with various grounds of complaint. One was that the German courts applied the wrong standard of proof for asylum applications and another was that the decision of the Secretary of State was irrational. Buxton LJ, who gave the main judgment, rejected these arguments. But he accepted that statistics which had been produced in evidence, revealing what appeared to be a wide disparity between German and UK acceptances of asylum applications from Kosovars over the same periods "should have put the Secretary of State on further inquiry as to whether Germany is in fact a safe country" ( INLR 276, 304H). He said, at p 306H "There may well be an explanation; but it has not been given." He concluded this part of his judgment by saying, at p 307:
22. If one pauses at this point, the conclusion which would seem to follow from the judgment is that the Secretary of State could not lawfully remove Mr Gashi in reliance on the certificate purported to be given on 16 March 1998. He could reconsider the matter in accordance with the principles laid down by the Court of Appeal and, if so minded, issue another certificate. Otherwise, he would be obliged to give substantive consideration to Mr Gashi's application.
23. Buxton LJ ended his judgment by saying:
Gashi and Nikshiqi v Secretary of State for the Home Department  INLR 96 was a case in which, after hearing submissions on behalf of the United Nations High Commission for Refugees, the Immigration Appeal Tribunal had laid down guide lines for dealing with applications by Kosovars in the situation then prevailing in Kosovo. By the time of the Court of Appeal's judgment in Ex p Besnik Gashi in March 1999, when the Nato bombing had just commenced, those guidelines meant that in practice all Kosovar applicants, if entitled to substantive determination in the United Kingdom, would be accorded refugee status. So Buxton LJ clearly did not think that the Secretary of State would be reconsidering his certificate under section 2(2) of the 1996 Act. Why he should have thought so is a matter to which I shall have to return. But it plainly does not follow from the grounds upon which the certificate was quashed. It might well have followed if the certificate had been quashed on another of the grounds relied upon. For example, if the conclusion had been that German courts applied the wrong standard of proof, then absent evidence of a change of German practice, the Secretary of State would be unable to certify. But the actual ground of decision left open the possibility that full investigation might show that there was nothing wrong with German practice.
25. Nor does Buxton LJ's conclusion follow from the terms of the Court of Appeal's order. There is no transcript of the discussion after the judgment was handed down. But we have been provided with what we are told is a pupil's note, carrying the warning: "This is a draft copy and in no way should be taken as a verbatim transcript." After making some corrections to the text, counsel and the court discussed what order should be made. Mr Dias, who had been junior counsel for Mr Gashi, asked that there should be a mandamus for substantive consideration. Buxton LJ is noted as saying "I did not say mandamus. But it is clear what I said. What does Miss [Giovanetti] have to say?". According to the note, Miss Giovanetti, who had been junior counsel for the Secretary of State, said:
26. Buxton LJ then said "Goes further than that and must follow Gashi and Nikshiqi", to which Miss Giovanetti replied "That is what I meant". Evans LJ asked "Is there going to be a need for a stay?" and Miss Giovanetti said that she was not asking for a stay. She then asked for leave to appeal, which was refused. On 23 April 1999 the Secretary of State presented a petition for leave to appeal to the House of Lords and leave was granted on 18 October 1999.
27. Immediately after the decision of the Court of Appeal, Mr Gashi's solicitors wrote to the Home Office quoting the concluding words of Buxton LJ's judgment and saying that as Miss Giovanetti had not sought a stay, Mr Gashi's claim should now be considered on its merits. The Home Office replied:
28. The terms of this letter make it clear that the Secretary of State was in general terms considering the consequences of the Besnik Gashi judgment and giving particular attention to the question of an appeal. Mr Gashi's solicitors returned to the subject in a letter of 4 August, saying that the Home Secretary was not entitled to refuse substantive consideration and relying on Buxton LJ's remarks and Miss Giovanetti's statement that she was not seeking a stay. The Secretary of State was anxious about how to deal with his petition, which was still pending. On the one hand, he wanted to have the point of principle decided without reference to any facts peculiar to Mr Gashi. He had been advised that the best way to make certain that this happened was to accept him, ex gratia so to speak, for substantive consideration. The facts of his case would then no longer give rise to live issues. On the other hand, he was concerned that if he did so, the House might refuse the petition on the ground that the point of principle had become academic. So he offered to give Mr Gashi substantive consideration in return for his agreement that the petition raised a point of general importance which the House should still consider.
29. Mr Gashi rejected this offer. He said that by virtue of the judgment of the Court of Appeal and the absence of a stay, he was entitled to substantive consideration as of right and not as a matter of concession. It is now agreed that this was wrong. The Home Office said nothing to suggest that they accepted it. The Secretary of State successfully pursued his application for leave to appeal to the House of Lords. He then wrote to Mr Gashi saying that leave having been granted, he would now give substantive consideration to his application. At the same time, he wrote to the Judicial Office (with a copy to Mr Gashi) to say that he had made this decision in the exercise of his discretion but wished to pursue the appeal.
30. Meanwhile, other applicants in the same situation as Mr Gashi were writing to the Home Office to find out what their position was after the judgment of the Court of Appeal. On 30 June 1999, after the Serbian withdrawal from Kosovo had taken place, a partner in Christian Fisher wrote on behalf of a Mr Ahmeti, saying that she understood that Mr Gashi had been successful and that Kosovan asylum seekers were being granted leave to remain in the United Kingdom. She asked for confirmation that her client would receive substantive consideration. The Home Office replied on 5 July 1999:
31. The sentence which I have emphasised in this letter makes it clear that the Secretary of State did not regard the Besnik Gashi decision as necessarily requiring him to give substantive consideration to the application. He was considering his position, independently of whether his appeal was successful or not.
32. After the Besnik Gashi decision in the Court of Appeal, the Home Secretary suspended removals to Germany under the Dublin Convention. He made further inquiries into whether Germany was a safe country. He formed the opinion that at least as of 15 June 1999 onwards it was. Furthermore, the withdrawal of Serbian forces meant that the substantive applications were now unlikely to succeed. He therefore announced on 13 July 1999 that he would once more enforce the terms of the Dublin Convention with Germany and made certificates under section 2(2) of the 1996 Act in respect of Kosovars who had arrived from that country and had not been already certified before the decision of the Court of Appeal in Ex p Besnik Gashi on 25 March 1999. These in turn were also challenged on various grounds in judicial review. The applications in two specimen cases came before Collins J in R v Secretary of State for the Home Secretary, Ex p Shefki Gashi and Artan Gjoka (unreported), 15 June 2000.
33. Before the substantive hearing, there had been a procedural application before Burton J in which Miss Giovanetti, for the Secretary of State, put forward a number of declarations which she wished the court to make. These included declarations that:
34. These declarations were capable of applying not only to applicants who had been certified for the first time after 25 March 1999 but also to those who had previously been wrongly certified as the situation then stood. The words I have underlined at the end of the second declaration made this clear. The Home Office was certainly of this opinion. Miss Giovanetti tendered a witness statement made on 9 May 2000 by Mr Taylor of the Home Office Third Country Unit saying that: "The outcome of these applications will, potentially, affect the Respondent's handling of the cases stood out pending the resolution of Ex p Besnik Gashi." Burton J gave the applicants in all those cases leave to intervene and ordered that they be notified of the proceedings. The Home Office did so by fax on 19 May 2000.
35. At the hearing on 25 May 2000 Mr Manjit Gill QC appeared for the applicants, as he has for the applicant before your Lordships. The judge noted that he had not been asked by either party to express a view about applicants who had been certified before 25 March 1999: "Somewhat different considerations are said to apply to [this] category" but "[n]either counsel was prepared or able to argue the legal result of [that] category and so I do not deal with it in this judgment." Mr Gill did not challenge the principles stated in the first two declarations but submitted that the applicants had a legitimate expectation that their claims to asylum would be considered quickly. If the Home Secretary had given consideration to whether they could be returned to Germany immediately after 25 March 1999 and before 15 June 1999, he could not (in the light of the Besnik Gashi case) have lawfully decided that Germany was a safe country. Therefore he should not be entitled to do so afterwards. Collins J rejected this argument. He said that delay was not material to the question of whether a section 2(2) certificate could be validly given or not. The judge did not make any formal declarations but the judgment makes it clear that he accepted Miss Giovanetti's draft declarations 1 and 2 as in principle correct.