Zeqiri, R (on the Application of) v. Secretary of State For The Home Department

The House of Lords allowed the Secretary of State's appeal and dismissed the applicant's challenge to the Secretary of State's decision to certify under section 2(2) of the Asylum and Immigration Act 1996 and to remove him to Germany.

Key legal principles: (i) a decision quashed as unlawful may be reconsidered and a fresh certificate may be issued where circumstances have changed; (ii) an implied legitimate expectation requires a sufficiently clear and unambiguous representation by the public authority; (iii) delay in itself does not make recertification unfair absent individual circumstances of sufficient weight. The court held that the letter of 2 November 2000 should be treated as a fresh certificate, that there was no clear representation by the Secretary of State creating a legitimate expectation that substantive consideration would follow the Court of Appeal decision in Ex p Besnik Gashi, and that recertification and removal were not unfair in the circumstances.

The applicant, an ethnic Albanian from Kosovo, claimed asylum in the United Kingdom after previously lodging asylum claims in Germany and Belgium. The Secretary of State certified under section 2(2) of the Asylum and Immigration Act 1996 that the applicant could be returned to Germany under the Dublin Convention and issued directions for his removal. The applicant sought judicial review, challenging the 16 November 1998 certificate and the subsequent decision of 2 November 2000 to maintain or effect a certificate, chiefly on the ground that condition (c) of section 2(2) (that the receiving state would not send him elsewhere otherwise than in accordance with the Geneva Convention) was not satisfied.

The litigation proceeded against the background of a test case, R v Secretary of State for the Home Department, Ex p Besnik Gashi [1999] INLR 276. The Court of Appeal in that case quashed the certificate in the test case and, in language that created uncertainty, indicated that substantive consideration might follow. Some applicants, including the applicant in this case, relied on that outcome as giving rise to a legitimate expectation that their claims would be considered on the merits in the United Kingdom unless the Secretary of State succeeded on appeal.

The issues before the House of Lords were (i) whether the Secretary of State's letter of 2 November 2000 was a fresh valid certificate under section 2(2), (ii) whether the Secretary of State's conduct around the Besnik Gashi proceedings had created a legitimate expectation that substantive consideration would follow quashing of a certificate, and (iii) whether recertification and removal were unfair in all the circumstances.

The House of Lords held that the 2 November 2000 letter should be treated as a certificate as of that date; that there was no sufficiently clear or unambiguous representation by the Secretary of State from which a legitimate expectation could reasonably be inferred; and that recertification after changed circumstances was lawful and not unfair in the absence of substantial personal ties or other compelling individual grounds. The appeal was allowed and the application dismissed.

Appeal allowed. The House of Lords held that the Secretary of State's letter of 2 November 2000 was properly to be treated as a fresh certificate under section 2(2) of the Asylum and Immigration Act 1996; that no clear and unambiguous representation had been made by the Secretary of State or its counsel in the Court of Appeal that would give rise to a legitimate expectation of substantive consideration in the United Kingdom; and that recertification and removal to Germany were not unfair in the circumstances.

Judicial review in the High Court (Moses J) — application dismissed (15 December 2000). Court of Appeal — allowed the applicant's appeal and quashed the decision of 2 November 2000 (12 March 2001). House of Lords — allowed the Secretary of State's appeal and dismissed the application (24 January 2002).