ZT (Kosovo) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | LORD PHILLIPS OF WORTH MATRAVERS,LORD HOPE OF CRAIGHEAD,LORD CARSWELL,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD NEUBERGER OF ABBOTSBURY |
| Judgment Date | 04 February 2009 |
| Neutral Citation | [2009] UKHL 6 |
| Date | 04 February 2009 |
| Court | House of Lords |
[2009] UKHL 6
Appellate Committee
Lord Phillips of Worth Matravers
Lord Hope of Craighead
Lord Carswell
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury
HOUSE OF LORDS
Appellant:
Steven Kovats
(Instructed by Treasury Solicitors)
Respondent:
Satvinder Juss
(Instructed by Riaz Khan & Co)
My Lords,
Section 94 of the Nationality, Immigration and Asylum Act 2002 ('section 94') makes provision for the Secretary of State, on refusing an appeal in an asylum claim or a human rights claim or both, to certify that the claim or claims is or are clearly unfounded. The effect of so certifying is that the claimant is precluded from bringing an appeal to the Asylum and Immigration Tribunal ('the AIT') against the Secretary of State's decision from within the United Kingdom. This appeal raises the following issues of procedure: (1) Where the Secretary of State has so certified, how should she approach the consideration of further submissions made by the claimant from within the jurisdiction? (2) How should the court, in proceedings for judicial review, approach the decision made by the Secretary of State in relation to those further submissions?
The initial claim
The respondent, ZT, is a Kosovar Ashkali, which is a sub-group of the Roma. arrived clandestinely in the United Kingdom from Kosovo, which was then part of Serbia, on 14 August 2003. He claimed asylum and protection on Human Rights grounds from being sent back to Kosovo. The grounds of his claim were as follows. The Roma constitute a minority that is widely subjected to persecution in Eastern Europe, including Serbia. Some 17 years earlier ZT had married a lady who was not of his ethnicity. He concealed his ethnicity from her for three years, and from her family until 2002, when they discovered that he was not Albanian, but Ashkali. His wife's brothers then attacked him and beat him up and took his wife and children away from him. They, however, managed to follow him to England. His fear was that if he returned to Kosovo, his wife's brothers would find him and that this time they would kill him.
The decision of the Secretary of State was set out in a lengthy letter dated 2 December 2005 by a member of the Asylum Casework Directorate on behalf of the Secretary of State. Her first conclusion was that the authorities in Kosovo would afford ZT sufficient protection from attack from his wife's family, if he sought that protection. In any event, however, if he was fearful of attack from his wife's family, he and his family could go to live in some other part of Kosovo and could reasonably be expected to do so. There was nothing about ZT's appearance or his speech that would lead anyone, who was not aware of his ethnicity, to suspect that he was other than an Albanian.
The letter certified pursuant to section 94 that ZT's claims were clearly unfounded. But for that certification ZT would, pursuant to section 92 of the 2002 Act, have enjoyed a right of appeal to the AIT under section 82 of that Act from within the United Kingdom ('an in country appeal'). The effect of the certification was that ZT could only exercise a right of appeal to the AIT once he had left the jurisdiction ('an out of country appeal'). Under the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230) notice of an in country appeal has to be given within 5 days of receiving notice of the decision to be appealed against if the appellant is detained and within 10 days if he is not (Rule 7(1)). Time for giving an out of country appeal for someone in the position of ZT does not begin to run until he leaves the United Kingdom. Notice of appeal has to be given within 28 days of leaving the United Kingdom (Rule 7(2)).
Further submissions
Despite the certification by the Secretary of State, ZT lodged an appeal with the AIT. The AIT struck out that appeal on 9 January 2006. On 20 January 2006 ZT made further submissions to the Secretary of State on asylum and human rights grounds, accompanied by some additional material. On 11 May 2006 an official from the Enforcement & Removals Directorate wrote on behalf of the Secretary of State rejecting the further submissions and stating that the certification of the claims as clearly unfounded was maintained.
By this time ZT had lodged an application to seek judicial review – on 5 April 2006. This challenged the Secretary of State's certification of ZT's claims. On 19 June 2006 McCombe J refused permission on the papers. On 23 August 2006 ZT lodged a supplementary bundle in the judicial review proceedings. The Secretary of State gave consideration to these as further representations and, in a letter from the same officer of the Enforcement & Removals Directorate dated 2 November 2006, once again rejected the further representations and maintained the certification.
On 7 November 2006 Collins J received oral submissions in support of the application for permission to seek judicial review. The only ground advanced for challenging the Secretary of State's decision was that it was not one that he could properly have reached on the evidence. Collins J. did not accept this and refused the permission sought.
Permission to appeal
ZT applied for permission to appeal against the decision of Collins J. On 19 January 2007 Sir Henry Brooke granted permission on the papers. He did so on the ground that a decision of the Court of Appeal delivered after Collins J's decision suggested that the approach that had been adopted by the Secretary of State had been erroneous. That decision was WM (DRC) v Secretary of State for the Home Department and Secretary of State for the Home Department v AR (Afghanistan). [2006] EWCA Civ 1495; [2007] Imm AR 337. Those appeals had related to refused asylum applications in cases in which the Secretary of State had not issued certificates under section 94 of the 2002 Act. No appeals had been made to the AIT and the time for making such appeals had expired. Further representations with fresh evidence had then been made to the Secretary of State. The Secretary of State had, quite correctly, treated those further representations as being covered by rule 353 of the Immigration Rules (HC 395) ('rule 353').
Rule 353 in its present form dates from October 2004. It provides:
"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas.
353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.
This paragraph does not apply to submissions made overseas."
The Secretary of State was concerned at the basis upon which Sir Henry Brooke had granted permission to appeal. This was because she did not consider that rule 353 had had any application in ZT's case. She further considered that it was important that it should be clearly established that this was the position. Accordingly she took the unusual step of applying to set aside the grant of permission to appeal. The Court of Appeal held that it was not an appropriate case to set aside the order of Sir Henry Brooke, although it would be open to the Secretary of State to pursue her challenge to the application of rule 353. The Court of Appeal would itself hear the application for judicial review.
The decision of the Court of Appeal
Buxton, Sedley and Pumfrey LJJ heard the appeal. All three agreed that the appeal should be allowed, but tragically, Pumfrey LJ died before judgments had been prepared. Sedley LJ gave the leading judgment. He held, without giving any reasons for so doing, that the procedure laid down by rule 353 should have been applied to the further submissions made by ZT. Had that procedure been applied the Secretary of State might have come to a different decision. Accordingly her decision fell to be quashed so that she could consider ZT's renewed application according to rule 353. Buxton LJ agreed with this result but, for his part, said that he would assume that the process engaged rule 353.
Three issues arise out of the decision of the Court of Appeal: 1) was the court correct to find that the Secretary of State should have approached ZT's further submissions on the basis that rule 353 applied to them? 2) If so, might it have made a difference to the Secretary of State's decision if she had proceeded in accordance with rule 353? 3) Must the case be remitted to the Secretary of State for further consideration?
Did rule 353 apply?
Rule 353 applies where a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending. The critical issue relates to the words that I have emphasised. Mr Kovats for the Secretary of State submitted that so long as it remained open to a claimant to bring an appeal it could not be said that an appeal relating to the claim was no longer pending. Those words meant 'so long as an appeal is not open to the...
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