Bashi & Anor, R (on the application of) v Secretary Of State for the Home Department

Where an immigration decision is quashed, the decision-maker may, and sometimes must, remake it by reference to the facts and law prevailing when the fresh decision is made. An applicant whose certificate has been quashed does not thereby acquire a vested right to have the asylum claim determined under repealed legislation. A later statutory provision may therefore be taken into account without giving it impermissible retrospective effect. A legitimate expectation requires a clear representation or conduct conveying the relevant assurance. An adjournment pending the outcome of another case will ordinarily show only that the other case may be relevant; it does not normally promise a particular outcome or legal regime.

These were two renewed applications for permission to appeal in asylum judicial review proceedings. The applicants had entered the United Kingdom through Greece, which accepted responsibility for their asylum claims under the Dublin Convention. Certificates had been issued under section 2 of the Immigration and Asylum Act 1996, before section 11 of the Immigration and Asylum Act 1999 came into force.

Scott Baker J refused judicial review. The applicants argued that the Secretary of State could not recertify their claims under the later Act if the original certificates were quashed, and that the adjournment of their cases pending other litigation created a legitimate expectation that their claims would be dealt with under the 1996 Act.

1. Applications dismissed. The Secretary of State’s undertaking not to remove the applicants until after the decision in Homeini Mohammed, together with an undertaking to review the cases if the section 11 issue went against him, justified determining the applications without an adjournment. The Article 3 issue had not been raised in these proceedings or before Scott Baker J.
2. Section 11 of the Immigration and Asylum Act 1999 deemed a member state to be a safe third country for the purposes specified in the provision. Although section 11 did not directly apply to certificates issued before its commencement, quashing such a certificate would leave an outstanding asylum application. It would not create a vested right to have the application dealt with under the repealed 1996 Act.
3. On a fresh decision after a certificate is quashed, the decision-maker must normally take account of new facts and new law. The Court of Appeal’s reasoning in R v Secretary of State for the Home Department, ex p Zeqiri [2001] EWCA Civ 342 supported that conclusion. The court rejected the submission that recertification under section 11 would be retrospective.
4. The legitimate-expectation argument also failed. Zeqiri turned on a clear message conveyed by the Secretary of State on the facts of that case. The correspondence here conveyed no assurance that a favourable outcome in Kerkeb and Bourheraoua v Secretary of State for the Home Department would determine these applications or preserve the 1996 legal regime. Merely agreeing to an adjournment pending another case normally establishes relevance, not a promise of a particular result.

• Court of Appeal (Civil Division): Renewed applications for permission to appeal dismissed.
• Queen’s Bench Division (Administrative Court): Scott Baker J refused judicial review of the certificates.