Regina v Secretary of State for the Home Department, Ex P Zeqiri

A certificate permitting removal to another Dublin Convention state must address the statutory conditions when it is given. A certificate previously quashed may therefore be replaced by a fresh certificate based on changed circumstances, if its fair meaning is that the Secretary of State is then satisfied that the conditions are fulfilled.

A legitimate expectation arising from public-authority conduct requires a representation which, in its context, is sufficiently clear and unqualified. Treating proceedings as a test case binds related cases only as to what the test case actually decided. An ex gratia concession to one litigant for a proper public-administration purpose does not, without more, require identical treatment of others.

Bajram Zeqiri, a Kosovan Albanian, claimed asylum in the United Kingdom after having sought asylum in Germany. The Secretary of State certified that he could be removed to Germany under section 2 of the Asylum and Immigration Act 1996.

His judicial review was deferred pending R v Secretary of State for the Home Department, Ex p Besnik Gashi [1999] INLR 276, a test case concerning earlier certificates for removal of Kosovan asylum seekers to Germany. Moses J dismissed Mr Zeqiri’s claim. The Court of Appeal allowed his appeal and quashed the Secretary of State’s letter of 2 November 2000, holding that he had a legitimate expectation of substantive consideration of his asylum claim in the United Kingdom.

The issue before the House was whether that letter was a valid fresh certificate and whether the test-case litigation, later conduct, delay, or the treatment of Mr Gashi made recertification unfair.

1. Appeal allowed unanimously. Lord Hoffmann delivered the principal reasoning, with which Lords Slynn and Millett agreed; Lord Mackay agreed subject to his observations on the earlier certificate, and Lord Rodger agreed with the reasons of Lords Hoffmann and Mackay. The House upheld the letter of 2 November 2000 as an effective fresh certificate. Lord Mackay stated that the original certificate of 16 November 1998 and the consequential removal direction should be quashed, but that relief should be refused in respect of the later letter.

2. Per Lord Hoffmann, section 2 of the Asylum and Immigration Act 1996 requires the Secretary of State to assess whether the conditions are fulfilled at the time of certification. The letter’s references to reviewing and maintaining the old certificate were inappropriate, but its fair and inescapable meaning was that the Secretary of State was presently satisfied that the conditions were met. It was accordingly a new certificate, not an attempt to revive the invalid earlier one. Lord Mackay reached the same conclusion, emphasising the changed circumstances in Kosovo and Germany.

3. Per Lord Hoffmann, the earlier decision in R v Secretary of State for the Home Department, Ex p Besnik Gashi [1999] INLR 276 quashed a certificate because further inquiry was required. It did not preclude a fresh certificate after proper investigation or changed circumstances. Agreement to treat that litigation as a test case meant that related claimants would be bound by what it actually decided, not by an assumption that substantive determination in the United Kingdom would necessarily follow.

4. There was no legitimate expectation. The Secretary of State made no clear representation that, if the earlier certificate were quashed, asylum claims would be determined substantively in the United Kingdom. Buxton LJ’s concluding observation in Besnik Gashi did not establish such a promise. The later correspondence instead showed that the Secretary of State was considering the legal consequences of that judgment and did not accept an obligation to determine the claims substantively.

5. Nor was recertification otherwise unfair. The Secretary of State could await a ruling on the effect of changed circumstances and had notified affected applicants that it might affect them. His discretionary substantive consideration of Mr Gashi’s claim served the legitimate public interest of preserving a determination of the wider legal issue. Delay alone was immaterial once Germany had accepted responsibility, absent compelling personal or compassionate circumstances. Mr Zeqiri’s friendships formed during the litigation did not require a different exercise of discretion.

• House of Lords: Allowed the Secretary of State’s appeal in [2002] UKHL 3. The letter of 2 November 2000 was upheld as a fresh certificate; the earlier certificate and removal direction were to be quashed.

• Court of Appeal: Allowed Mr Zeqiri’s appeal on 12 March 2001 and quashed the decision of 2 November 2000, on grounds of legitimate expectation and unfairness.

• High Court (Moses J): Dismissed the application for judicial review on 15 December 2000.