ZL & Anor v Secretary of State for the Home Department and Lord Chancellor's Department

A certification that an asylum or human-rights claim is clearly unfounded is governed by an objective test. The claim must not be certified if it may succeed on at least one legitimate view of the facts or law. The different wording of section 115(6) of the Nationality, Immigration and Asylum Act 2002 does not lower that threshold for applicants from listed states.

Listing a state is not an irrebuttable presumption of safety. Each claim requires an individual assessment. A fast-track procedure may be fair if it gives a real opportunity for evidence and representations, but it must be deferred where essential evidence cannot fairly be obtained in time. Fairness also ordinarily requires authentic access to a new statutory regime before discretionary executive action is taken under it.

ZL and VL, Czech Roma and members of one family, sought asylum and relied on human-rights claims after arriving in the United Kingdom. The Secretary of State refused the claims, certified them as clearly unfounded under section 115(6) of the Nationality, Immigration and Asylum Act 2002, and issued removal directions.

They renewed applications for permission to seek judicial review following Goldring J’s decision in the Administrative Court. They challenged the use of section 115 before the Act was published, the absence and fairness of safeguards in the Oakington fast-track process, and the merits of the certifications. ZL also relied on an alleged rape by a police officer and on Article 8 family-life considerations.

The central issues were whether the procedure was fair and whether either claim could properly be certified as clearly unfounded.

1. Appeals dismissed. The court refused both renewed applications for permission to seek judicial review. It delivered a single judgment to which Lord Phillips MR, Waller LJ and Sedley LJ all contributed.

2. An Act takes domestic legal effect on Royal Assent, whether or not it has been published. But the Secretary of State was not legally required to use section 115 immediately. It was unfair to exercise that discretionary power while the text was inaccessible to those affected and to those advising them. That unfairness was cured here because the court had the further evidence and could itself review objectively whether the claims were clearly unfounded.

3. There is a requirement of a fair hearing where an asylum applicant may be returned to a country where persecution is alleged. The Oakington fast-track procedure was not inherently unfair. It allowed legal advice, an interview, disclosure of interview notes, and time for further evidence and representations. Its fairness depended on the claim’s content. Where medical, documentary or analogous evidence could not fairly be obtained within the timetable, the claim should not be fast-tracked or certified. The adequacy of later out-of-country appeal procedures did not determine the lawfulness of removal before the appeal.

4. The section 115 test is objective. Under section 115(1), a claim is clearly unfounded only if it cannot succeed on any legitimate view of the facts or law. Section 115(6) requires the same inquiry for a listed state: if a claim may succeed on at least one legitimate view, the decision-maker must be satisfied that it is not clearly unfounded. Disbelief of an applicant is insufficient unless no person could believe the account.

5. The listing of the Czech Republic in section 115(7) did not replace an individual assessment. Earlier tribunal findings that the Czech Republic generally provided sufficient protection to Roma deserved weight, but they did not justify rubber-stamping claims. Localised persecution, a change in country conditions, or an individual account capable of establishing a Convention claim could prevent certification.

6. On the evidence, the applicants’ experiences did not arguably establish persecution, an Article 3 breach, or an insufficiency of state protection. Even assuming the alleged rape had occurred, it was a rogue event and there was no evidence that the responsible national authority would not investigate it. Article 8 did not prevent certification; any consequential family-life issue could be considered in an out-of-country appeal.

• Court of Appeal (Civil Division): dismissed the appeals and refused the renewed applications for permission to seek judicial review: [2003] EWCA Civ 25.

• Administrative Court, Queen’s Bench Division: Goldring J gave the decision from which the applicants sought permission to appeal on 3 December 2002. Its citation is not stated in the judgment.