Secretary of State for the Home Department v Bajram Zeqiri
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,LORD JUSTICE DYSON |
| Judgment Date | 12 March 2001 |
| Neutral Citation | [2001] EWCA Civ 342 |
| Docket Number | Case No: C/2000/3831 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 2001 |
Court of Appeal
Lord Phillips MR Kennedy, Dyson LJJ
M Gill QC and Miss J Rothwell for the appellant
I Burnett QC and Miss L Giovannetti for the respondent
Cases referred to in the judgments:
R v Hertfordshire County Council v Cheung (1986), The Times 4 April.
R v Ministry of Defence ex parte SmithELR [1996] QB 517.
Gashi and Nikshiqi v Secretary of State for the Home Department [1997] INLR 96.
R v Secretary of State for the Home Department ex parte Besnik Gashi [1999] Imm AR 415: [1999] INLR 276.
R v East Devon Health Authority ex parte CoughlanWLR [2000] 2 WLR 622.
R v Secretary of State for the Home Department ex parte Shefki Gashi and Artan Gjoka (unreported, DC, 15 June 2000).
Asylum — ethnic Albanians from Kosovo — consideration of application deferred until case of Gashi resolved — Secretary of State decided to return applicant to Germany for substantive consideration of his claim — whether applicant had acquired a legitimate expectation that his claim would be fully resolved in the United Kingdom.
The appellant was an ethnic Albanian from Kosovo: he had applied for asylum on arrival in the United Kingdom. His case had been deferred until the case of Gashi had been resolved. The Secretary of State had finally decided to remove him to Germany for the substantive consideration of his claim.
Moses J had dismissed an application for judicial review of that decision. The appellant appealed, asserting inter alia that he had had a legitimate expectation that his application would be fully considered in the United Kingdom.
Held
1. The Secretary of State had not made clear (as he could have done) what his approach to the instant case would be while that of Gashi was under consideration.
2. In the circumstances the appellant had acquired a legitimate expectation that his application would be substantively considered in the United Kingdom.
The Master of the Rolls:
Introduction
1. This is an appeal from the judgment of Moses J dated 15 December 2000 dismissing the appellant's application for judicial review. Some 114 similar cases await the result of this appeal. Like other cases to which I shall have occasion to refer, it is being treated as a test case.
2. The appellant is an Albanian from Kosovo who is claiming asylum as a refugee. The primary issue raised by this appeal is whether the substantive determination of his claim should take place in this country or in Germany. That issue was first raised in December 1998 when the appellant sought to challenge by judicial review the decision of the Secretary of State that he should be removed to Germany. There were many Albanians from Kosovo claiming asylum in this country in respect of which the same issue arose. The appellant's claim, and that of others, was stayed pending the progress through the courts of an application that was treated as a test case, R v Secretary of State for the Home Department ex parte Besnik Gashi [1999] INLR 276. On 6 November 1998 the Divisional Court had decided that case in favour of the Secretary of State. The decision was, however, reversed by the Court of Appeal on 25 March 1999. The Secretary of State obtained permission to appeal to the House of Lords. In November 1999, however, he decided to permit Besnik Gashi's application for asylum to be substantively determined in this country. Nearly a year then passed before the appeal was withdrawn from the House of Lords at the end of October 2000.
3. This appeal raises the question of the implication of the events described above for the appellant and others in his position. The position of the Secretary of State can be summarised as follows:
4. In June 1999 there was a change of circumstances which rendered the issues raised in Besnik Gashi irrelevant to the position of the appellant. That this was so was established by the decision of Collins J sitting in the Divisional Court on 15 June 2000 in R v Secretary of State for the Home Department ex parte Shefki Gashi and Artan Gjoka, yet another test case. The result of that test case established that the Secretary of State could rely on the changed circumstances as the basis of his decision to remove the appellant to Germany for the substantive determination of his asylum claim. The Secretary of State purported to do just that. On 2 November 2000 he issued a decision letter purporting to confirm his decision of 1998 that the appellant should be removed to Germany. In these proceedings the appellant challenges both the initial decision and its confirmation.
5. The appellant's primary case is as follows. The effect of treating Besnik Gashi as a test case was that the appellant's case, and the case of all others in the same position as the appellant, would be governed by the decision of the Court of Appeal in relation to Besnik Gashi. The Court of Appeal ruled that the Secretary of State had acted unlawfully and that Besnik Gashi's application for asylum had to be determined substantively in this country. The same necessarily followed for the appellant and others in like position.
6. Alternatively, the appellant contends that the same result is reached by the application of the principles of legitimate expectation and fairness. By treating Besnik Gashi as a test case, the Secretary of State led him legitimately to expect that he would not be removed to Germany if Besnik Gashi's application succeeded.
7. This expectation was reinforced by the conduct of the Secretary of State in pursuing, up until October 2000, an appeal to the House of Lords. Having particular regard to the delay which has occurred, it would now be unfair to remove the appellant to Germany.
8. Additionally, the appellant relies upon a principle that fairness requires the Secretary of State to apply an approach that is consistent. Besnik Gashi has been permitted to have his application for asylum determined substantively in this country. The appellant is entitled to the same treatment.
Removal to a safe third country
9. In 1990 the Member States of the European Communities signed a convention, the Dublin Convention, that laid down the criteria that should determine which Member State should have responsibility for the determination of the claim to asylum of an alien who had entered the Member States. The basic principle under article 7 of the Convention is that the first Member State that receives the alien has responsibility for examining the alien's application for asylum. There are a number of exceptions to this principle. In particular, article 11 provides:
‘If a member state with which an application for asylum has been lodged considers that another member state is responsible for examining the application, it may, as quickly as possible and in any case within the six months following the date on which the application was lodged, call upon the other member state to take charge of the applicant.
If the request that charge be taken is not made within the six-month time limit, responsibility for examining the application for asylum shall rest with the state in which the application was lodged…
Transfer of the applicant for asylum from the member state where the application was lodged to the member state responsible must take place not later than one month after acceptance of the request to take charge or one month after the conclusion of any proceedings initiated by the alien challenging the transfer decision if the proceedings are suspensory.’
10. Provisions of our domestic law in relation to the removal of an applicant for asylum to a safe third country were enacted by the Asylum and Immigration Act 1996 as follows:
‘2(1) Nothing in section 6 of the 1993 Act (protection of claimants from deportation etc) shall prevent a person who has made a claim for asylum being removed from the United Kingdom if—
(a) the Secretary of State has certified that, in his opinion, the conditions mentioned in subsection (2) below are fulfilled;
(b) the certificate has not been set aside on an appeal under section 3 below; and
(c) except in the case of a person who is to be sent to a country or territory to which subsection (3) below applies, the time for giving notice of such an appeal has expired and no such appeal is pending.
(2) The conditions are—
(a) that the person is not a national or a citizen of the country or territory to which he is to be sent;
(b) that his life and liberty would not be threatened in that country or territory by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and
(c) that the government of that country or territory would not send him to another country or territory otherwise that in accordance with the Convention.
(3) This subsection applies to any country or territory which is or forms part of a Member State, or is designated for the purposes of this subsection in an order made by the Secretary of State by statutory instrument.
(3)(1) Where a certificate has been issued under section 2(1) above in respect of any person—
(a) that person may appeal against the certificate to a special adjudicator on the ground that any of the conditions mentioned in section 2(2) above was not fulfilled when the certificate was issued, or has since ceased to be fulfilled; but
(b) unless and until the certificate is set aside on such an appeal, he shall not be entitled to bring or pursue any appeal under—
(i) Part II of the 1971 Act (appeals: general); or
(ii) section 8 of the 1993 Act (appeals to special adjudicator on Convention grounds).
as respects matters arising before his removal from the United Kingdom.
(2) A person who has been, or is to be, sent to a country or territory to which section 2(3) above applies shall not be entitled to bring or pursue an appeal under this section so long as he is in the United Kingdom.’
11. The...
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