Z T (Kosovo) (Respondent) v Secretary of State for the Home Department (Appellant)

Rule 353 of the Immigration Rules (HC 395) applies after refusal of an asylum or human rights claim where no appeal is pending. This includes a claim certified under section 94 of the Nationality, Immigration and Asylum Act 2002 while an out-of-country appeal remains available but has not been instituted.

A claim which remains clearly unfounded cannot have a realistic prospect of success under rule 353, although the converse does not invariably follow. Judicial review remains supervisory and requires anxious scrutiny. The court asks whether, on any legitimate view of the law and facts, an immigration judge might allow the claim. Where primary facts are undisputed, that inquiry will normally admit of one rational answer.

The respondent was a Kosovar Ashkali who claimed asylum and human-rights protection because he feared violence from his wife's family. The Secretary of State rejected the claims and certified them as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002. The certification prevented an appeal from within the United Kingdom.

After the respondent made further submissions, the Secretary of State rejected them and maintained the certificate. Collins J refused permission to seek judicial review. The Court of Appeal, in [2008] EWCA Civ 14, held that the submissions should have been considered under rule 353 of the Immigration Rules (HC 395), quashed the decision and directed reconsideration.

The House considered whether rule 353 applied, whether using that procedure could have produced a different result, and how a court should review a clearly-unfounded certificate.

1. Appeal allowed unanimously. The House set aside the order of the Court of Appeal and dismissed the respondent's judicial review application. Every Law Lord concluded that the further submissions added nothing material and that an appeal to the Asylum and Immigration Tribunal had no realistic prospect of success.

2. Per Lord Phillips of Worth Matravers, with Lords Carswell, Brown and Neuberger reaching the same conclusion, rule 353 applied. Under section 104 of the Nationality, Immigration and Asylum Act 2002, an appeal is pending only after it has been instituted. Rule 353 therefore applies where a claim has been refused and no appeal has been instituted, including where a section 94 certificate permits only an out-of-country appeal. Lord Hope disagreed on this issue. He considered that rule 353 was concerned with generating a fresh claim after ordinary appeal rights had been exhausted, while rule 353A protected a section 94 claimant from removal during consideration of further submissions.

3. The procedural error was immaterial. Per Lord Phillips, the rule 353 procedure first required rejection or acceptance of the further material and then consideration of the claim as a whole. A claim properly found to remain clearly unfounded could not also possess a realistic prospect of success. Lords Carswell and Neuberger accepted that the two expressions might conceivably differ in rare cases, while Lord Brown regarded them as equivalent. The common and decisive point was that this claim failed either standard.

4. The court's jurisdiction was supervisory rather than appellate. Lord Hope applied the guidance in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 and approved Lord Hodge's formulation in FNG, Petitioner [2008] CSOH 22. The reviewing court must ask the questions an immigration judge would ask and determine whether, on any legitimate view of the law and facts, any question might be answered in the claimant's favour. Lords Carswell and Neuberger agreed. The review requires anxious scrutiny because certification removes the opportunity for an in-country appeal.

5. Where primary facts are undisputed, the inquiry will normally admit of only one rational answer. If the reviewing court concludes that the claim might succeed, the Secretary of State's contrary conclusion will ordinarily be irrational. Lords Hope and Neuberger nevertheless declined to convert that practical consequence into an inflexible rule. On the evidence in this case, the Secretary of State's conclusion was lawful and correct.

1. House of Lords: In ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, the House unanimously allowed the Secretary of State's appeal, set aside the Court of Appeal's order and dismissed the judicial review application.
2. Court of Appeal: In [2008] EWCA Civ 14, the court allowed the respondent's appeal, quashed the refusal of his further submissions and directed the Secretary of State to reconsider them under rule 353 of the Immigration Rules (HC 395).
3. High Court: Collins J refused permission to seek judicial review, holding that the Secretary of State could properly have maintained the clearly-unfounded certificate.
4. Asylum and Immigration Tribunal: The tribunal struck out the respondent's attempted in-country appeal because the section 94 certificate restricted him to an out-of-country appeal.