Zeqiri v Secretary of State for the Home Department

In public-law test cases, persons whose proceedings are deferred while a representative case is decided may legitimately expect the result to be applied to them. That expectation can concern the procedure for determining a substantive claim. An unlawfully issued safe-third-country certificate must be quashed, set aside or treated as a nullity, but the decision-maker may reconsider the matter and issue a fresh certificate if later circumstances permit a lawful decision. The Dublin Convention regulates responsibility between member states; it does not itself confer enforceable rights on asylum applicants or create a domestic-law bar to fresh certification. A late change of position, after prolonged uncertainty and without public-interest justification, may be unfair and unreasonable, particularly where important human rights are engaged.

The appellant, an Albanian from Kosovo, claimed asylum in the United Kingdom after entering via Germany. The Secretary of State certified his removal to Germany under the Asylum and Immigration Act 1996. His proceedings, like those of many similarly placed applicants, were deferred pending the test case of R v Secretary of State for the Home Department ex parte Besnik Gashi [1999] INLR 276. After the circumstances changed and the earlier statistical disparity ceased, the Secretary of State resumed certification and confirmed the appellant’s removal in November 2000. Moses J dismissed the application for judicial review. The appeal concerned the effect of the test case, the availability of fresh certification, and whether inconsistency, legitimate expectation or unfairness made removal unlawful.

Disposition

Lord Phillips MR delivered the leading judgment. Lord Justice Kennedy and Lord Justice Dyson agreed. The appeal was allowed, the order below was quashed, and costs were awarded here and below.

1. Effect of a test case. A public-law test case may have an effect beyond establishing precedent. Where proceedings are deferred while the test case applies otherwise uncontentious public-law principles to a common factual situation, similarly placed persons may legitimately expect any relief or treatment granted in the test case to be applied to them. Lord Phillips MR endorsed the reasoning in Regina v Hertfordshire County Council v Cheung The Times 4 April 1986.
2. Invalid and fresh certificates. Once a safe-third-country certificate has been shown to have been unlawfully issued, it should be quashed, set aside or treated as a nullity. The Secretary of State may nevertheless reconsider the matter in light of circumstances prevailing later and issue a fresh certificate. The statutory scheme in the Asylum and Immigration Act 1996 did not prevent that course, even where the original certificate had been mistakenly issued.
3. Dublin Convention. The Convention’s time provisions regulate relations between member states and do not confer rights or legitimate expectations on asylum applicants. The Convention is not part of domestic law and cannot govern the operation of the 1996 Act or create a statutory bar to fresh certification. Delay alone is insufficient, although compassionate or other relevant circumstances may make delay material.
4. Effect of the earlier conclusion. The statement in Besnik Gashi that substantive consideration would follow quashing described the expected consequence at that time. It was not a mandatory order and did not entitle the appellant or other applicants to substantive determination in the United Kingdom.
5. Inconsistency. The Secretary of State gave an acceptable forensic explanation for treating Besnik Gashi differently: the substantive determination was intended to prevent the House of Lords appeal from being clouded by the nominal respondent’s personal circumstances. The inconsistency ground therefore failed.
6. Legitimate expectation and fairness. The Secretary of State’s conduct, including deferring applications and continuing the appeal, created a legitimate expectation that the test-case result would determine the applicants’ position. The expectation concerned the procedure for deciding removal, even though remaining in the United Kingdom might carry substantive advantages. A policy could have been changed after the circumstances altered, but the Secretary of State should have communicated that change. The late change of tack, prolonged uncertainty and resulting hardship made removal unfair.
7. Review and remedy. The court could assess whether public interest outweighed the unfairness caused by frustrating the expectation, or apply Wednesbury review. Where important human rights are engaged, the examination must be particularly rigorous, following Reg v Ministry of Defence ex parte Smith [1996] QB 517. No public-interest justification was advanced. The decision to remove the appellant rather than determine his asylum claim in the United Kingdom was unreasonable and was quashed.

• Court of Appeal (Civil Division) — In [2001] EWCA Civ 342, the appeal was allowed. The order below was quashed, with costs here and below.
• Administrative Court, Queen’s Bench Division — Moses J dismissed the appellant’s application for judicial review on 15 December 2000.