Secretary of State for the Home Department v Bajram Zeqiri
| Jurisdiction | UK Non-devolved |
| Judge | LORD SLYNN OF HADLEY,LORD HOFFMANN |
| Judgment Date | 24 January 2002 |
| Neutral Citation | [2002] UKHL 3 |
| Date | 24 January 2002 |
| Court | House of Lords |
[2002] UKHL 3
HOUSE OF LORDS
Lord Slynn of Hadley
Lord Mackay of Clashfern
Lord Hoffmann
Lord Millett
Lord Rodger of Earlsferry
My Lords,
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.
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.
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 [1999] 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.
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.
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.
I would accordingly allow this appeal.
My Lords,
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.
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.
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 [1999] 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.
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.
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.
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.
My Lords,
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...
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