ZT (Kosovo) v Secretary of State for the Home Department

The House of Lords considered the procedure to be followed when an asylum or human rights claim has been certified as "clearly unfounded" under section 94 of the Nationality, Immigration and Asylum Act 2002 and the effect of subsequent further submissions made by the claimant while remaining in the United Kingdom. The principal questions were whether those further submissions should be considered under rule 353 of the Immigration Rules (fresh claims) or by a section 94 "reconsideration", and what standard a court should apply on judicial review of the Secretary of State's decision. The majority held that rule 353 applies where a claim has been refused and no appeal is pending within the meaning of section 104, so that further submissions should be tested against the "realistic prospect of success" criterion; however, on the facts the Secretary of State's reconsideration (and maintenance of the section 94 certificate) was lawful and the outcome would not have differed under rule 353. The court applied the conventional judicial review standard, informed by "anxious scrutiny" in Convention cases, and concluded that where primary facts are not disputed the challenge is essentially a rationality challenge.

The respondent, a Kosovar national (Ashkali), entered the United Kingdom clandestinely and claimed asylum and protection. The Secretary of State refused the claim and certified it under section 94 of the Nationality, Immigration and Asylum Act 2002 as "clearly unfounded", thereby preventing an in-country appeal and allowing only an out-of-country appeal. The respondent made further submissions while remaining in the United Kingdom. The Secretary of State rejected those submissions and maintained the certificate. The respondent sought judicial review, permission was refused at first instance, permission to appeal to the Court of Appeal was granted and the Court of Appeal held that the Secretary of State should have applied rule 353 of the Immigration Rules; the Court of Appeal quashed the decision and remitted it for reconsideration under rule 353.

The House of Lords heard an appeal by the Secretary of State. The issues framed by the court were:

• Whether further submissions in a certified (section 94) case should be considered under rule 353 (fresh claims) or by a section 94 reconsideration;
• What standard of scrutiny applies on judicial review of the Secretary of State's decision;
• Whether, if the wrong procedure had been used, the matter should be remitted for re-decision.

The majority (Lord Phillips and others) concluded that rule 353 applies where a claim has been refused and no appeal is pending within the meaning of section 104, and that the Secretary of State should treat a claim as having a "realistic prospect of success" unless it is "clearly unfounded". They held nevertheless that on the facts the further submissions added nothing material and that the Secretary of State's view that the claim remained clearly unfounded was rational; accordingly the result would have been the same under rule 353 and no remittal was required. Lord Hope disagreed on the application of rule 353 (he considered rule 353 not to apply to section 94 cases and placed weight on rule 353A and the different purposes and tests), but agreed that the Secretary of State's decision should be upheld. The court applied conventional judicial review standards subject to anxious scrutiny in Convention cases, and treated challenges where primary facts are undisputed as essentially rationality challenges.

Appeal allowed. The House of Lords concluded (majority) that rule 353 of the Immigration Rules applies where a claim has been refused and no appeal is pending within the meaning of section 104, but on the facts the Secretary of State's reconsideration and maintenance of the section 94 certificate was rational and would not have produced a different outcome under rule 353; accordingly the Court of Appeal's order was set aside and the Secretary of State's decision upheld. (One Law Lord dissented on the applicability of rule 353 but agreed with the ultimate result.)

Initial refusal of permission on the papers by McCombe J (19 June 2006); refusal of permission by Collins J after oral hearing (7 November 2006); Sir Henry Brooke granted permission to appeal to the Court of Appeal (19 January 2007). Court of Appeal allowed the challenge: [2008] EWCA Civ 14 (Buxton, Sedley and Pumfrey LJJ). Appeal to the House of Lords: [2009] UKHL 6.