ZEQIRI v. Secretary of State for the Home Department [2001] EWCA Civ 342 (12th March, 2001)

Neutral Citation Number: [2001] EWCA CIV 342 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT Mr Justice Moses Royal Courts of Justice Strand, London, WC2A 2LL Monday 12 th March 2001 B e f o r e : MASTER OF THE ROLLS LORD JUSTICE KENNEDY and LORD JUSTICE DYSON - - - - - - - - - - - - - - - - - - - - - THE QUEEN On application of BAJRAM ZEQIRI Appellant - and - Secretary of State for the Home Department Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Manjit Gill, QC and Joanne Rothwell (instructed by D. J. Webb & Co for the Appellant) Ian Burnett, QC and Lisa Giovannetti (instructed by The Treasury Solicitor for the Respondent) - - - - - - - - - - - - - - - - - - - - - Judgment As Approved by the Court Crown Copyright © THE UNDER-MENTIONED ARE LINKED CASES 20003833, 20003834, 20003847, 20003839, 20003837, 20003882, 20003881, 20010061, 20010062, 20010065, 20010063, 20010064, 20010078, 20010079, 20010083, 20010085, 20010086, 20010087, 20010088, 20010089, 20010091, 20010092, 20010093, 20010099, 20010100, 20010101, 20010103, 20010080, 20003814, 20003816, 20003832, 20003844, 20003853, 20003854, 20003855, 20003857, 20003858, 20003859, 20003860, 20003865, 20003866, 20003867, 20003871, 20003872, 20003873, 20003874, 20003875, 20003876, 20003879, 20003884, 20003886, 20003887, 20003888, 20003889, 20003890, 20003891, 20003893, 20003894, 20003895, 20003900, 20003902, 20003903, 20003904, 20003906, 20003907, 20003908, 20003909, 20003910, 20003911, 20003912, 20003914, 20003915, 20010003, 20010008, 20010009, 20010011, 20010010, 20010016, 20010018, 20010023, 20010024, 20010031, 20010033, 20010034, 20010039, 20010041, 20010044, 20010045, 20003978, 20003883, 20010106, LORD PHILLIPS MR : Introduction 1. This is an appeal from the judgment of Moses J. dated 15 December 2000 dismissing the appellant's application for judicial review. Some 114 similar cases await the result of this appeal. Like other cases to which I shall have occasion to refer, it is being treated as a test case. 2. The appellant is an Albanian from Kosovo who is claiming asylum as a refugee. The primary issue raised by this appeal is whether the substantive determination of his claim should take place in this country or in Germany. That issue was first raised in December 1998 when the appellant sought to challenge by judicial review the decision of the Secretary of State that he should be removed to Germany. There were many Albanians from Kosovo claiming asylum in this country in respect of which the same issue arose. The appellant's claim, and that of others, was stayed pending the progress through the Courts of an application that was treated as a test case, R v Secretary of State for the Home Department ex parte Besnik Gashi [1999] INLR 276. On 6 November 1998 the Divisional Court had decided that case in favour of the Secretary of State. The decision was, however, reversed by the Court of Appeal on 25 March 1999. The Secretary of State obtained permission to appeal to the House of Lords. In November 1999, however, he decided to permit Besnik Gashi's application for asylum to be substantively determined in this country. Nearly a year then passed before the appeal was withdrawn from the House of Lords at the end of October 2000. 3. This appeal raises the question of the implication of the events described above for the appellant and others in his position. The position of the Secretary of State can be summarised as follows: 4. In June 1999 there was a change of circumstances which rendered the issues raised in Besnik Gashi irrelevant to the position of the appellant. That this was so was established by the decision of Collins J. sitting in the Divisional Court on 15 June 2000 in R v Secretary of State for the Home Department ex parte Shefki Gashi and Artan Gjoka , yet another test case. The result of that test case established that the Secretary of State could rely on the changed circumstances as the basis of his decision to remove the appellant to Germany for the substantive determination of his asylum claim. The Secretary of State purported to do just that. On 2 November 2000 he issued a decision letter purporting to confirm his decision of 1998 that the appellant should be removed to Germany. In these proceedings the appellant challenges both the initial decision and its confirmation. 5. The appellant's primary case is as follows. The effect of treating Besnik Gashi as a test case was that the appellant's case, and the case of all others in the same position as the appellant, would be governed by the decision of the Court of Appeal in relation to Besnik Gashi. The Court of Appeal ruled that the Secretary of State had acted unlawfully and that Besnik Gashi's application for asylum had to be determined substantively in this country. The same necessarily followed for the appellant and others in like position. 6. Alternatively, the appellant contends that the same result is reached by the application of the principles of legitimate expectation and fairness. By treating Besnik Gashi as a test case, the Secretary of State led him legitimately to expect that he would not be 7. removed to Germany if Besnik Gashi's application succeeded. This expectation was reinforced by the conduct of the Secretary of State in pursuing, up until October 2000, an appeal to the House of Lords. Having particular regard to the delay which has occurred, it would now be unfair to remove the appellant to Germany. 8. Additionally, the appellant relies upon a principle that fairness requires the Secretary of State to apply an approach that is consistent. Besnik Gashi has been permitted to have his application for asylum determined substantively in this country. The appellant is entitled to the same treatment. Removal to a Safe Third Country 9. In 1990 the member states of the European Communities signed a convention, the Dublin Convention, that laid down the criteria that should determine which member state should have responsibility for the determination of the claim to asylum of an alien who had entered the member states. The basic principle under Article 7 of the Convention is that the first member state that receives the alien has responsibility for examining the alien's application for asylum. There are a number of exceptions to this principle. In particular, Article 11 provides: "If a member state with which an application for asylum has been lodged considers that another member state is responsible for examining the application, it may, as quickly as possible and in any case within the six months following the date on which the application was lodged, call upon the other member state to take charge of the applicant. If the request that charge be taken is not made within the six-month time limit, responsibility for examining the application for asylum shall rest with the state in which the application was lodged.... Transfer of the applicant for asylum from the member state where the application was lodged to the member state responsible must take place not later than one month after acceptance of the request to take charge or one month after the conclusion of any proceedings initiated by the alien challenging the transfer decision if the proceedings are suspensory." 10. Provisions of our domestic law in relation to the removal of an applicant for asylum to a safe third country were enacted by the Asylum and Immigration Act 1996 as follows: "2(1) Nothing in section 6 of the 1993 Act (protection of claimants from deportation etc.) shall prevent a person who has made a claim for asylum being removed from the United Kingdom if - (a) the Secretary of State has certified that, in his opinion, the conditions mentioned in subsection (2) below are fulfilled; (b) the certificate has not been set aside on an appeal under section 3 below; and (c) except in the case of a person who is to be sent to a country or territory to which subsection (3) below applies, the time for giving notice of such an appeal has expired and no such appeal is pending. (2) The conditions are - (a) that the person is not a national or a citizen of the country or territory to which he is to be sent; (b) that his life and liberty would not be threatened in that country or territory by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and (c) that the government of that country or territory would not send him to another country or territory otherwise than in accordance with the Convention. (3) This subsection applies to any country or territory which is or forms part of a Member State, or is designated for the purposes of this subsection in an order made by the Secretary of State by statutory instrument. (3)(1) Where a certificate has been issued under section 2 (1) above in respect of any person - (a) that person may appeal against the certificate to a special adjudicator on the ground that any of the conditions mentioned in section 2 (2) above was not fulfilled when the certificate was issued, or has since ceased to be fulfilled; but (b) unless and until the certificate is set aside on such an appeal, he shall not be entitled to bring or pursue any appeal under - (i) Part II of the 1971 Act (appeals: general); or (ii) section 8 of the 1993 Act (appeals to special adjudicator on Convention grounds). as respects matters arising before his removal from the United Kingdom. (2) A person who has been, or is to be, sent to a country or territory to which section 2 (3) above applies shall not be entitled to bring or pursue an appeal under this section so long as he is in the United Kingdom." 11. The restriction on the right of appeal imposed by subsection (3)(2) rendered that right illusory if the country to which the applicant was removed was liable itself to remove the applicant before that right could be exercised. For this reason the Courts have not insisted on that right of appeal being exhausted as a precondition to an application for judicial review. The Policy of the Secretary of State in Relation to Immigrants from Kosovo. 12. I propose at this point to review the policy of the Secretary of State in relation to applications for asylum by Albanians who have entered this country from Kosovo in circumstances where no third country is involved. 13. On 22 July 1996 the Immigration Appeal Tribunal gave a decision in Gashi and Nikshiqi v Secretary of State for the Home Department [1997] INLR 96 . The United Nations High Commissioner for Refugees had intervened in the proceedings. Two ethnic Albanians from Kosovo were appealing against the dismissal by special adjudicators of their claims to asylum. It was argued on their behalf that their ethnicity alone put them at risk of persecution in Kosovo. After receiving substantial evidence the Tribunal allowed their appeals. They held that Albanians were a race within the contemplation of the 1951 Refugee Convention and that the Serbian Government in Belgrade had in place a system or policy which targeted ethnic Albanians and which was directed in the long term to their 'ethnic cleansing'. In these circumstances, the degree of risk to any ethnic Albanian in the Federal Republic of Yugoslavia was sufficient to raise it to the level of a serious possibility of persecution. 14. We were informed by Counsel that Gashi and Nikshiki was, itself, a test case, although this was not apparent from the report. At all events the Secretary of State consistently took into account the findings of the Tribunal in subsequent applications by Kosovan Albanians. He approached such cases on the premise that Albanians were at risk of group persecution in the Federal Republic of Yugoslavia simply by reason of their ethnicity. 15. On 24 March 1999 the Nato military campaign in Kosovo began. On 15 June, the Secretary of State announced that asylum claims by citizens of the Federal Republic of Yugoslavia would be temporarily suspended and that, for the time being, 12 months leave to enter or remain would be granted to Albanian Kosovans on a temporary basis. 16. In late June, following the peace agreement, ethnic Albanians began to return to Kosovo voluntarily and on 15 July 29 countries, including the United Kingdom and Germany, that had received Albanian Kosovans, began a coordinated voluntary repatriation project for them. 17. On 13 July the Secretary of State announced a change of policy in respect of the Federal Republic of Yugoslavia. Exceptional leave to remain would no longer automatically be granted to Albanian Kosovans. Consideration of asylum applications from citizens of the Federal Republic of Yugoslavia would recommence. Asylum applications from Albanian Kosovans would be considered on their individual merits but, given the improvement in the situation in the region, it was anticipated that in most cases the outcome would be refusal and return to Kosovo unless there were exceptional circumstances. This policy was put into effect. The Policy of Germany in Respect of Immigrants from Kosovo 18. Up until late March 1999 the German courts reached a different conclusion from that of the Immigration Appeal Tribunal in respect of group persecution of ethnic Albanians. They did not in general accept that every Albanian was at sufficient risk of group persecution merely by risk of ethnicity. Each individual application was dealt with on its own merits. This was one factor, and it seems to me that it must inevitably have been the paramount factor, responsible for a startling statistical disparity between the asylum recognition rate for nationals of the Federal Republic of Yugoslavia up to the end of March 1999. Home Office statistics show that the United Kingdom recognition rate was 13% in 1996, 70% in 1997, 60% in 1998 and 73% in the first four months of 1999. Official statistics from the German Federal Office for the Recognition of Refugees show that the German recognition rate for ethnic Albanians was 4.8% in 1996, 2.6% in 1997, 3% in 1998 and 4.4% in the first quarter of 1999. Home Office statistics are not provided relating specifically to ethnic Albanians, but the evidence was that these are assumed to constitute 89% of the total. This information is less than clear, but I would imagine that this assumed proportion relates to applications for asylum. Having regard to the Secretary of State's policy I would expect the proportion of successful applications from ethnic Albanians to be higher. 19. Despite the relatively low recognition rate in Germany, failed asylum seekers from Kosovo were not in fact deported from Germany in1998 and the first part of 1999 because of practical difficulties of one kind or another. In June 1999, Germany followed the example of this country in temporarily suspending consideration of asylum applications by Kosovans while the security situation was clarified. Just as did this country, Germany recommenced consideration of asylum applications from Kosovans in September 1999. Thus the disparity between the results of asylum applications by ethnic Albanians in this country and in Germany ceased in June 1999. The Approach of the Secretary of State to Removals to Germany 20. Up to 25 March 1999 the Home Secretary was satisfied that Germany was a safe third country and issued removal certificates on that basis. On that day the Court of Appeal delivered judgment in Besnik Gashi. I shall consider that judgment in detail in due course. Put shortly, the Court of Appeal held that the statistical disparity of the results of asylum applications in this country and Germany raised a question as to whether Germany was, in fact, a safe third country for Albanian Kosovans. As he had not investigated the reason for this disparity, the Secretary of State had not been in a position to satisfy himself that Germany was in fact a safe third country and, thus, had acted unlawfully in issuing removal certificates. 21. As a result of the decision of the Court of Appeal in Besnik Gash i the Secretary of State ceased issuing such certificates and suspended attempts to remove Kosovan asylum seekers to Germany. He set about inquiring into the reason for the statistically disparity. The conclusion that he reached was that there were reasons for this disparity which established that Germany had at all times observed its obligations to Albanian Kosovans under the 1951 Convention, so that Germany had been a safe third country. Whether that conclusion was one that was reasonably open to the Secretary of State is an issue which it has not been necessary to explore on this appeal. This is because, as is now common ground, the disparity ceased to exist for the reasons explained above by 15 June 1999. It is the significance of that change of circumstances that has been in issue, and for purposes of argument it is appropriate to proceed on the basis that certificates issued before 25 March 1999 were unlawful because Germany was not then a safe third country. 22. After 13 July 1999 the Secretary of State resumed certifying that it was safe to remove Albanian Kosovans to Germany. Besnik Gashi 22. Besnik Gashi is an Albanian Kosovan who arrived in England via Germany on 22 December 1997. On 16 March 1998 the Secretary of State issued a certificate stating that he was satisfied that it was safe to remove Mr Gashi to Germany. Mr Gashi challenged the legality of that certificate on a number of grounds. Some alleged that the German Courts applied legal principles which were in conflict with the 1951 Convention. These the Court rejected. The ground that succeeded was founded on the statistical disparity which I have described above. The Court did not accept that this disparity established that Germany was not a safe third country for Albanian Kosovans, but held that it put the Secretary of State on inquiry, so that in the absence of inquiry he could not properly certify that Germany was safe. Buxton L. J., who gave the leading judgment, summarised his Conclusions as follows: "The duty of anxious consideration to enable the Secretary of State to be satisfied that there is no real risk of Mr Gashi being sent by Germany to another country otherwise than in accordance with the Convention therefore required, on the facts of this case, that the Secretary of State should consider, and almost certainly seek further explanation of, the figures as to actual recognition rates in Germany. Since he has taken no steps in that direction, his decision cannot stand." 23. He went on to add this: "Conclusion I would allow this appeal, and quash what has transpired to be the only live order, the certification by the Secretary of State of 16 March 1998. It follows that the Secretary of State will now consider the applicant's substantive application for asylum, and apply to it the policy that he described to this court of following the decision of the Immigration Appeal Tribunal in Gashi and Nikshiqi ." 24. For ease of reference I shall describe this in future as `Buxton L. J.'s Conclusion' 25. The formal order made by the Court was that the certificate issued by the Secretary of State should be quashed. Subsequent Events in Relation to Besnik Gashi 26. The Secretary of State sought permission to appeal to the House of Lords, which was refused by the Court of Appeal. He then lodged a petition for permission to appeal on 23 April 1999. By common accord, Mr Zeqiri's application and those of the others in the same position remained stayed. Solicitors acting for Mr Besnik Gashi wrote, however, demanding that his application for asylum be substantively determined in accordance with the statement made by Buxton L. J. as to what would follow from the decision of the Court of Appeal. On 21 September 1999 the Treasury Solicitor replied as follows: "Further to your request, the Secretary of State has been considering whether and under what conditions he would be prepared to exercise his discretion, in view of the exceptional circumstances of this particular case, to consider the merits of Mr Gashi's asylum claim substantively. The Secretary of State is firmly of the view that the petition to the House of Lords raises points of law of general public importance, and that it would still remain appropriate for the petition to be decided substantively by the House of Lords even if the Secretary of State does consider Mr Gashi's particular claim substantively (see R v Secretary of State ex parte Salem [1999] AC 45). However, the Secretary of State is concerned that the House of Lords may decline to entertain the appeal following such a decision on the ground that the matter becomes academic in respect of the facts of your client's case. These concerns would be alleviated if both parties were to agree in advance that the petition should nevertheless proceed to be decided in the public interest. I would therefore invite you to agree that the Secretary of State's petition to the House of Lords in this matter does raise points of law of general public importance, and that if the Secretary of State does formally decide to consider your client's claim substantively then you would agree to withdraw your written objections to the provisional decision of the House of Lords to grant leave to appeal. If you provide written confirmation of this, then the Secretary of State would formally notify you of his decision to consider your client's claim substantively and of his decision not to seek to return him to Germany as a safe third country. Your client would therefore enjoy rights of appeal within the United Kingdom should the decision be adverse." 27. Mr Besnik Gashi's solicitors responded indignantly that they had not requested the Secretary of State to exercise his discretion in favour of their client, but to give effect to the judgment of the Court of Appeal in his favour. At this point, on 18 October 1999, the House of Lords granted the Secretary of State permission to appeal. 28. On 5 November the Treasury Solicitor wrote informing Mr Besnik Gashi's solicitors that, as permission had now been give to appeal, the Secretary of State would proceed to consider Mr Gashi's application for asylum substantively, without prejudice to the appeal. The Treasury Solicitor then wrote to the Judicial Office of the House of Lords to explain what had happened, adding: "However I can confirm that the Secretary of State still intends to pursue this appeal on the ground that it raises points of law of general public importance. Accordingly, Mr Gashi's representatives have been informed that the decision to consider their client's asylum claim substantively in the United Kingdom was made without prejudice to the merits of the Secretary of State's appeal to the House of Lords. I am instructed, at the time of writing, that the issues raised by this appeal are directly relevant to 242 other applications for permission to apply for judicial review which have been lodged with the Crown Office challenging decisions of the Secretary of State to return Kosovan Albanians to Germany as a safe third country. The Secretary of State continues to oppose these applications and they all currently remain deferred pending the determination of the present appeal." The Second Front 29. As explained above, the Secretary of State began again to certify that Germany was a safe third country to which to remove Kosovan applicants for asylum on 13 July 1999. This led to renewed applications for judicial review challenging these new certificates on a number of grounds. Once again the Secretary of State sought to identify an individual case which could serve as a test case to determine common issues. At some point - when is not entirely clear on the evidence - it occurred to those acting on his behalf that the issue of the validity of the new crop of certificates also impacted on the effect of the decision of the Court of Appeal in Besnik Gashi . If, in the changed circumstances after 15 June 1999, it was open to him to certify in respect of immigrants in respect of whom he had not previously issued certificates, why should not these changed circumstances entitle him to maintain, renew or reissue the certificates issued before the change of circumstances? If so, he could by-pass the effect of the decision in Besnik Gashi which would become mere history. 30. We have seen nothing to suggest that the Secretary of State shared this thinking with those immigrants whose applications remained stayed pending the determination of the petition for permission to appeal to the House of Lords in Besnik Gashi , nor, indeed, with the House of Lords. He was, however, having difficulty in getting a suitable test case to the starting gate. On 18 October 1999 an application in ex parte Manija was withdrawn two days before the hearing. On 13 December an application in ex parte Shalaj was withdrawn. On 13 January 2000 permission to apply for judicial review was granted to two applicants in ex parte Artan Gjoki and Shefki Gashi . It was decided to use these applications as a test case and the Secretary of State requested an expedited hearing. Then, on 25 April 2000, Shefki Gashi gave notice that he wished to withdraw his application for judicial review and, on 4 May, Artan Gjoka did the same. 31. On 10 May the two cases were listed before Burton J. Although the two applicants wished to withdraw their applications, the Secretary of State persuaded Burton J. that the cases should go to a substantive hearing so that the Secretary of State could seek a declaration that would clarify the position of other applicants. In a witness statement, Burton J. was told: "The Respondent takes the view that the matters raised in these present, linked, application is relevant to, and will have a significant impact on, an increasing number of other cases that have been stood out pending the resolution of this case. I refer to Exhibit "IGT2" which is a list of all the permission Applications to the Crown Office which are currently awaiting the decision of this Application and the related appeal by the Respondent in ex parte Besnik Gashi . The outcome of these applications will, potentially affect the Respondent's handling of the cases stood out pending the resolution of ex parte Besnik Gashi ." 32. At this point the Treasury Solicitor wrote to the solicitors acting for the many applicants who were awaiting the result of the appeal to the House of Lords in Besnik Gashi , including the solicitors then acting for the appellant, in the following terms: "Further to an Order made by Mr Justice Burton in the above case on 10th May 2000, the Respondent is writing to formally notify you that the Secretary of State for the Home Department has been granted leave to seek a declaration from the Court as follows. 1. The Secretary of State was lawfully able to conclude that, as of 15th June 1999, there was no significant disparity between the approach of the German authorities and that of the UK immigration authorities as regards asylum by Kosovan Albanians. 2. In forming an opinion for the purposes of Section 2 (2)(c) of the Asylum and Immigration Act 1996 as to the safety of the country to which he proposes to remove an Applicant the Secretary of State should consider the law and practice of that country as at the date of certification, or any subsequent decision to maintain the certificate. On the hearing of any application for judicial review, the Court will also have regard to the situation as at the date of the hearing, and the Secretary of State is not precluded from lawfully forming the opinion required by Section 2(2)(c) simply by reason of the fact that he could not have done so as at the date of the Applicant's claim for asylum, or at the date when the Secretary of State became aware that the Applicant might be returnable to the country in question. 3. In the premises of paragraph 1 and 2 above, the Secretary of State was entitled to issue further or in the alternative to maintain his certificates in respect of the applicants in these proceedings. The above application and Declaration will be heard by the High Court of Justice on 25th May 2000, before the Honourable Mr Justice Burton. I enclose a copy of the Court order by Mr Justice Burton dated 9th May 2000. Although the above application will be heard by the Court on 25th May 2000, you are not under an obligation to appear or be represented at this hearing. However, you will note that the judge has granted liberty to all parties in your position to intervene." Ex Parte Artan Gjoka and Shefki Gashi 33. The hearing came on before Collins J. on 25 May and he handed down judgment on 15 June. Pursuant to Burton J's directions, six permission applications, chosen as being representative of the various applicants, were also listed. Mr Gill, QC and Mrs Rothwell appeared for these six applicants. Counsel attended on behalf of a number of other applicants who had been notified of the hearing, but because they had been instructed at the ninth hour, felt unable to add to the submissions advanced by Mr Gill. All the applications before the Court related to certificates issued after 13 July 1999. Collins J. observed in paragraph 4 of his judgment: "In some cases, certificates had been issued before 25 March 1999. These were not put into effect because of the Court of Appeal decision in ex parte Besnik Gashi , but have since been activated or reissued. In other cases, the request to Germany to accept the applicant had been made (and in some cases acceded to by Germany) before 25 March 1999, but no certificate had been issued. Somewhat different considerations are said to apply to these two categories, and I am concerned only with the latter, that is to say, those where there was no certificate before 25 March 1999. In many, the applicant had arrived in the U. K. in 1998, but for various reasons no certificate had been issued before 25 March 1999. Neither Counsel was prepared or able to argue the legal result of the first category and so I do not deal with it in this judgment." 34. Later he added that his judgment did not "apply directly" to those in respect of whom certificates were issued prior to 25 March 1999. 35. Mr Gill raised a technical objection to the Secretary of State's application for a declaration. He submitted that the Court could not make a declaration at the request of a respondent. Collins J. described this argument as barren "since a formal declaration is unnecessary when the judgment makes clear what the Judge's view of the law is". 36. Turning to the declaration sought by the Secretary of State, the Judge observed that the two main concerns of the Secretary of State proved not to be in issue. As to the first paragraph of the declaration sought: "Paragraph 1 is accepted in the sense that Mr Gill concedes that on the material now available he cannot dispute that the respondent has since 15 June 1999 been lawfully able to conclude that the disparity does not exist and so can in principle conclude that Germany is a safe third country." 37. As to the second paragraph of the declaration, the Judge recorded that it was not disputed and added: "It is indeed surprising that it ever was and Mr Gill did not seek to argue the contrary." 38. Where Mr Gill took issue before Collins J. was in respect of the third paragraph of the declaration. He submitted that the delay that had elapsed between the immigrants' applications for asylum and the issue of the Secretary of State's certificates was such as to render the issue of the certificates unlawful. In making this submission he invoked the provisions dealing with time in the Dublin Convention and argued that these gave rise to a legitimate expectation on the part of immigrants that their claims to asylum would be dealt with as speedily as possible. Indeed he went so far as to argue that the immigrants could rely directly on the Convention. As to this, the Judge ruled: "I cannot accept that an individual can have any rights or expectations under the Dublin Convention since it is concerned not to confer benefits on the individual but to ascertain which state should be responsible for dealing with his claim. It may confer benefits on him indirectly inasmuch as he will not be passed from one state to another and back again and thus ascertainment of responsibility will take less time than if there were no Dublin Convention." 39. He went on to add: "In my judgment, delay by itself cannot found a challenge to a decision to send an applicant to another Member State provided that the Dublin Convention is followed. If the Member State requested to deal with the claim accedes to the request in accordance with the Dublin Convention, allegations or delay are by themselves irrelevant. It may be possible in an individual case to argue that the respondent has failed to consider properly compassionate or other circumstances which ought to have persuaded him to take responsibility for a particular asylum seeker (for example, the presence of family ties) and to show that delay has some relevance. Otherwise, as I have said, delay is not material." Subsequent Events 40. Armed with Collins J's judgment, those acting for the Secretary of State sought Ministerial assent to withdraw the appeal in Besnik Gashi from the House of Lords. This was received on the 12 th October and permission was then obtained to withdraw the appeal. On 2 November, those acting for the Secretary of State, having reviewed all the outstanding applications, wrote to the solicitors acting for the appellant, and no doubt to those acting for the other 200 odd applicants in the same position. Having drawn attention to the terms of Collin J's judgment in ex parte Artan Gjoka and Shefki Gashi the letter continued: "Following the judgment of the honourable Mr Justice Collins in the case of ex parte Artan Gjoka and ex parte Shefki Gashi , which was handed down on 15 June 2000, the Secretary of State reviewed his certificate in your client's particular case, in order to determine whether or not it should be maintained, in the light of the changed situation for Kosovan Albanians both in Europe and in Kosovo. The Secretary of State remains clearly of the view that your client is properly returnable to Germany under Section 2 of the Asylum and Immigration Act 1996 and that he is re-admissible to Germany under the provisions of the Dublin Convention. The Secretary of State can find no compelling, compassionate grounds which would cause him to depart from his normal policy and practice in your client's particular case, which is to return him to the State with responsibility for examining his asylum application under the Dublin convention. The Secretary of State is of the opinion that the case of ex parte Besnik Gashi is no longer relevant to your client's application." 41. The letter then invited Mr Zeqiri to withdraw his application. His response was to apply for permission to seek judicial review not merely of the Secretary of State's initial certificate, but of the decision letter of 2 November. The Status of the Judgment in Besnik Gashi 42. It has always been common ground that Besnik Gashi was a `test case'. Counsel were not, however, agreed as to what this implied. For the Secretary of State Mr Burnett, Q. C. submitted that in public law a test case does no more than establish principles of law which will be binding in subsequent cases according to well established principles of judicial precedent. Mr Gill submitted that the effect of treating Besnik Gashi as a test case was to bind the Secretary of State to apply the result of the case to all who were in the same position as Mr Gashi. 43. A test case will clearly, just as any other, determine any principles of law in accordance with the doctrine of case precedent. A test case in the field of public law will, however, have an effect which goes beyond this. Often the question at issue will be the application of uncontentious principles of public law to a particular factual situation. In such circumstances, those who defer proceedings to await the result of the test case will have a legitimate expectation that if the applicant in the test case demonstrates that he is entitled to a particular relief or treatment, they will be treated in the same way. In this context I would endorse a passage in the judgment of Sir John Donaldson MR in Regina v. Hertfordshire County Council v. Cheung (26 March 1986; The Times 4 April 1986) at p.10 of the transcript: "I wholly accept the proposition that if a test case is in progress in the public law court, others who are in a similar position to the parties should not be expected themselves to begin proceedings in order to protect their positions. I say this for two reasons. First, it would strain the resources of the public law court to breaking point. Second, and perhaps more important, it is a cardinal principle of good public administration that all persons who are in a similar position shall be treated similarly. Accordingly, it could be assumed that the result of the test case would be applied to them by the authorities concerned without the need for proceedings and that, if this did not in the event occur, the court would regard this as a complete justification for a late application for judicial review." 44. In the present case the Secretary of State has always accepted that the decision of the Court of Appeal in Besnik Gashi established that, prior to 25 th March 1999, the Secretary of State had acted unlawfully in issuing a certificate of satisfaction that Germany was a safe third country, not merely in relation to Besnik Gash i , but in relation to all Albanian Kosovans. Moses J. at paragraph 32 of his judgment held that it did not follow that the decision of the Court of Appeal had the effect of quashing the certificates in the other cases. Technically this may be correct, but I consider that there can be no practical distinction between a certificate that has been quashed by the Court and a certificate that has been held to be invalid by a judgment of the Court. The Consequence of the Finding that the Certificates Were Unlawful 45. I now come to the first major issue between the parties. Mr Gill submitted that, under the statutory scheme, once the Secretary of State has issued a certificate, his right to remove an immigrant to the third country to which that certificate relates will stand or fall with the validity of the certificate. If the certificate is shown to be unlawful, no facts that subsequently come to the attention of the Secretary of State, nor any change of circumstances, can be invoked to maintain or revive the certificate, nor can the Secretary of State issue a fresh certificate. 46. In so submitting, Mr Gill relied on the provisions of Section 3 of the 1996 Act. He argued that this gave an express right to appeal from abroad to set aside a certificate where any of the preconditions to its issue had not existed at the time of issue or had since ceased to exist. A challenge by judicial review should carry the same right. 47. I can go this far with Mr Gill. Once a certificate has been shown to have been unlawfully issued, then it should be quashed, set aside or treated as a nullity. I do not consider that the reference in the Secretary of State's letter of 2 November to a `review' of his certificate and an entitlement to `maintain' it were appropriate. This, however, is purely a matter of form. In substance the effect of the letter of 2 November was to re-certify that Germany was a safe third country in the light of the change of circumstances. The important question is whether the Secretary of State was entitled to do this. 48. As to this question, Mr Gill relied upon the Dublin Convention. He submitted that there had been a failure to comply with this in that the appellant had not been transferred to Germany within one month of the acceptance by Germany of the request to take charge of the appellant's application, as required by Article 11(5). The extension provided for by the latter part of 11(5) had no application where the initial certificate was unlawful. 49. I consider that there are a number of flaws in this argument. First and foremost, I agree with the conclusions of Collins J. in Artan Gjoka and Shefki Gashi . The provisions as to time in the Dublin Convention are designed to govern the relationship between the parties to it, not to confer rights on applicants for asylum. In the second place, the Dublin Convention does not form part of our domestic law and cannot govern the manner in which the 1996 Act operates. In the third place, I can see no basis for qualifying the latter part of 11(5) by stipulating that the time limit is extended only where the challenge made to the proceedings by the alien is ill-founded. I accept that there are provisions in the Convention that have regard to the wishes of the alien and that the fact that the Convention sets out to ensure that the applicant for asylum is dealt with swiftly may well reflect concern that such persons should not be held `in limbo' longer than necessary. These are matters which may well be of relevance at a later stage of the debate. They do not, however, establish the statutory bar to the issue of a fresh certificate for which Mr Gill contends. 50. The same is true of a more general point made by Mr Gill. While an immigrant is `in limbo', awaiting the outcome of his application, he will be exposed to anxiety and uncertainty and deprived of the welfare benefits that are conferred on an immigrant whose status as a refugee is established. Thus delay carries with it a very significant prejudice. Once again, this is not a matter which can govern the interpretation of the statutory regime. The normal position in public law where a decision is quashed is that the decision-maker is free to reconsider the decision in the light of the material circumstances then prevailing. In Artan Gjoka and Shefki Gashi Mr Gill accepted the proposition that the Secretary of State could issue a certificate after a change of circumstances, notwithstanding that he had not been in a position to do so at the date of the applicant's claim for asylum. I can see no reason why he should not be free to do so, whether or not he mistakenly issued a certificate at the time of the original application. 51. It is not uncommon for a certificate to be withdrawn as a result of facts which come to light after its issue and for a new certificate to be issued. Indeed this occurred in the case of the appellant. Originally it was believed that Belgium was the appropriate safe third country, and a certificate was issued in relation to Belgium. It was subsequently discovered that the appellant had applied for asylum in Germany before moving to Belgium, whereupon the certificate was withdrawn to be replaced by one in relation to Germany. 52. For these reasons I reject Mr Gill's contention that the statutory scheme prevented the Secretary of State from issuing a fresh certificate once a change of circumstances had placed him in a position so to do. LORD JUSTICE BUXTON'S Conclusion: 53. Buxton L. J. stated that it followed from the quashing of the certificate in respect of Besnik Gashi that the Secretary of State would consider his substantive application for asylum and apply to it his policy of following the decision in Gashi and Nikshiqi . Mr Gill submitted before Moses J. that both limbs of this conclusion represented Buxton L. J.'s ruling of the outcome of the appeal as a matter of law and that they should be given the effect of a mandatory order. He modified this submission before us by accepting that the reference to the Secretary of State following Gashi and Nikshiqi was only applicable so long as it remained the Secretary of State's policy to do so. He submitted, however, that Buxton L. J. had nonetheless given a mandatory direction that the Secretary of State should give substantive consideration to Besnik Gashi's claim. It was no longer open to him to remove him to a safe third country. The other applicants, including the appellant, were entitled to the same treatment. 54. Moses J. did not accept the wider submission and I do not accept the narrower. I believe that Buxton L. J.'s conclusion was intended to do no more than describe what he understood would happen as the result of the quashing of the certificate. It is important to bear in mind that some of the contentions advanced on behalf of Mr Besnik Gashi would have left no scope for the Secretary of State to issue a fresh certificate. Furthermore, at the time that the Court of Appeal gave its judgment, the change of circumstances that enabled the Secretary of State to issue valid certificates had not yet occurred. In these circumstances, it may well have been a common assumption that if the appeal succeeded, and subject to a possible appeal to the House of Lords, Mr Besnik Gashi's application for asylum would be determined substantively in this country. For these reasons I do not consider that either part of Buxton L. J.'s conclusion falls to be treated as a mandatory order or entitled the appellant and his fellow applicants to have their applications for asylum determined substantively in this country. Inconsistency 55. It is convenient at this point to deal with a challenge made to the conduct of the Secretary of State on the ground of inconsistency. Not merely did Buxton L. J. indicate that the result of the quashing of Besnik Gashi's certificate would be that his application for asylum would be determined substantively in this country, but that was the course that the Secretary of State ultimately followed. It was unfair for the Secretary of State to treat the other applicants inconsistently. Mr Gill referred us to a number of authorities which, he submitted, demonstrated that unfair and inconsistent treatment provided grounds for judicial review. 56. Before Moses J. the Secretary of State sought to meet this argument by asserting that special circumstances had justified according to Besnik Gashi special treatment. He declined, however, to elaborate on the nature of these special circumstances. Moses J. was reluctantly driven to accept the Secretary of State's unparticularised assurance. Mr Gill drew our attention to a body of evidence, some of it obtained since the hearing below, which demonstrated convincingly that there were no special circumstances relating to Besnik Gashi that justified treating him differently from the appellant and his fellow applicants. Faced with this challenge, the Secretary of State provided, through counsel, his explanation. The special circumstances were not personal to Mr Besnik Gashi, but were forensic. The issue of principle that the appeal to the House of Lords raised was whether the Court of Appeal had been correct to rule that the Secretary of State had to enquire into statistics and the explanation for them before he could lawfully conclude that a third country was `safe'. The Secretary of State was anxious that there should be no risk of this issue of principle being clouded by consideration of the personal circumstances of the nominal respondent. It was in order to achieve this that he acceded to Mr Besnik Gashi's wish to have his asylum application substantively determined in this country. 57. It is a great pity that this explanation for what appeared to be unjustifiable discriminatory treatment was not volunteered when the issue of inconsistency was first raised. I find it an acceptable explanation for what occurred and one that removes what had appeared a powerful element in the appellant's case that he had been unfairly treated. Legitimate Expectation 58. I have left until last what I consider to be the appellant's most cogent ground for attacking the course taken by the Secretary of State. Mr Gill submitted that from the outset, and up to the moment that he received the Secretary of State's letter of 2 November 2000, the appellant was led legitimately to expect that, if Besnik Gashi's application was successful, he would not be removed to Germany. It was contrary to the fairness required under established principles of public law to confound that expectation. 59. Moses J. rejected the plea of legitimate expectation. His reasoning was that the applicants' belief that their applications would be substantively determined in this country was not an absolute belief, but was conditional on the decision of the Court of Appeal in Besnik Gashi being upheld in the Lords. As there was no certainty that this would happen, they had no certain expectation that they would not be removed to Germany. When the appeal to the House of Lords was withdrawn on 18 October, they may then have formed the expectation that they would not be removed to Germany, but that expectation was almost immediately dashed by the receipt of the Secretary of State's letter on 2 November. 60. I believe that this analysis is fallacious. The expectation of the appellant and his fellow applicants did not relate simply to whether they would be removed to Germany, but to the procedure by which that question would be determined. In Regina v East Devon Health Authority ex parte Coughlan [2000] 2 WLR 622 at 645-6 the Court of Appeal pointed the distinction between a legitimate expectation as to procedure and a legitimate expectation as to a substantive benefit and remarked that it was often difficult to draw the line between the two. That is true of this case. The vital question that concerned the applicants was whether they would be given asylum or returned to Kosovo. The more immediate question was whether that would be determined in England or in Germany. In one sense that was a procedural question, but it may well be that applicants considered that there were benefits of substance in remaining to have it determined in England rather than being removed to Germany. The immediate question was, however, purely procedural - how should the question of whether the applicants should be removed to Germany be determined? 61. It was undoubtedly the policy of the Secretary of State that the hearing of the applications of all in the position of the appellant should be stayed or deferred pending final determination of Besnik Gashi's application. That policy carried the clear message that the result of Besnik Gashi's application would impact on the other applications. I believe that the message went beyond that. When in March 1999 Besnik Gashi's application was considered by the Court of Appeal the general expectation was that it would be determinative of the question of whether or not his claim to asylum, and that of the other applicants, would be determined in this country. That general expectation was reflected by Buxton L. J.'s' Conclusion. 62. At that point the Secretary of State might have rebutted this expectation. He might have queried Buxton L. J.'s' Conclusion - he had the chance to do so, for the judgment was, in accordance to normal practice, shown to the parties before it was handed down and the case was, in fact, brought back before the court on two occasions after hand down. The Secretary of State might have told the Court that he intended to investigate the statistical disparity and wished to reserve the right to re-certify in respect of Besnik Gashi if satisfied that Germany was, despite the disparity, a safe third country. He did not do so - instead he petitioned the House of Lord for leave to appeal. That course conveyed, so it seems to me, the clear message that the result of Besnik Gashi's application, and those riding behind it, was likely to be determined by the House of Lords. 63. When in June 1999 there was a change of circumstances and the disparity between Germany and this country ceased, there was an opportunity for the Secretary of State to have a change of policy. He could have announced that, having regard to the change of circumstances the position before March 1999 was no longer relevant and that he proposed to re-certify in respect of Besnik Gashi and his fellow applicants. Had he done so I do not believe that this course could have been validly challenged on the basis of legitimate expectation. A legitimate expectation will not preclude a change of ministerial policy in appropriate circumstances. But the Secretary of State did not take this course. He continued to treat separately Besnik Gashi and those in respect of whom he had issued certificates before March 1999. This conduct would have enhanced the understanding of these applicants that their fate was likely to turn on the result of the appeal to the House of Lords. The Secretary of State's letter to the House of Lords in November 1999 was only consistent with this understanding. 64. It was not until 20 May 2000 that the Treasury Solicitor's letter gave any hint that the Secretary of State might be advancing against the applicants on another front. In the event, the hearing before Collins J. did not address directly the position of the Besnik Gashi class of applicants and a further four months or so were allowed to pass before the appellant and his fellow applicants were informed that the Secretary of State no longer considered that the decision in Besnik Gashi had any relevance to their case. 65. The Secretary of State has sought to explain the timing of this volte face by the need to obtain a ruling of the Court that he was entitled to rely upon the changed circumstances. Mr Gill submitted that this was not a satisfactory explanation and I agree. The appropriate course for the Secretary of State to have adopted would have been to re-certify in relation to the Besnik Gashi class of applicants and to seek to meet any challenges to that course if and when they came. As it was he allowed all these applicants to remain under the impression that the final outcome in Besnik Gashi was likely to determine whether or not they would be removed to Germany for well over a year after the change of circumstances had occurred. 66. The evidence that I have summarised above demonstrates how the conduct of the Secretary of State created a legitimate expectation on the part of the appellant and his fellow applicants that if Besnik Gashi succeeded in his application, neither he nor they would be removed to Germany. Unfairness 67. Mr Gill submitted that had the appellant's application for asylum received substantive consideration when it was made, his claim would have been recognised and he would have been granted indefinite right to remain. He was denied this because the Secretary of State unlawfully certified that Germany was a safe third country to which he could be removed. This may be correct, but I do not see that this misfortune can be said to be attributable to reliance on the legitimate expectation that the Secretary of State's subsequent conduct gave rise to. 68. Mr Gill further submitted that the period that the appellant has spent `in limbo', awaiting the progression of Besnik Gashi to the House of Lords has involved further hardship. The prolonged period of uncertainty as to his fate will have caused him mental stress and he will have been forced to subsist without the benefits of those whose claim to asylum has been recognised. These submissions were not challenged. I consider that this hardship is material to the question of whether it would now be fair for the Secretary of State to remove the appellant to Germany on the basis that the decision for which he has been waiting is of no relevance to his case. It is unfair that the Secretary of State should change tack at this late stage. 69. The final aspect of unfairness is the extent to which it would be harsh to deprive the appellant of the fruits that he was led to expect that he would enjoy if the challenge to Besnik Gashi in the House of Lords did not succeed. As to this, Mr Burnett submitted that it was common ground that removal to Germany would not expose the appellant to the risk of being removed to Kosovo in violation of his right to asylum under the 1951 Convention, whatever may have been the position before June 1999. This is true, and it may be the case that removal to Germany at this point would cause the appellant no more hardship than the disturbance that this process would involve. This is not, however, a matter that has been explored and I suspect that the appellant and his fellow applicants may well be anxious to have their claims substantively determined in this country because they believe, rightly or wrongly, that the regime under which immigrants are dealt with is more favourable than that prevailing in Germany. In the circumstances I consider it right to proceed on the basis that to deprive the applicants of their wish to have their asylum claims determined in this country would cause them significant hardship. Conclusion 70. The authorities suggest two possible approaches to reviewing an administrative decision which has confounded a legitimate expectation. In Coughlan the Court considered whether any public interest had been demonstrated which outweighed the unfairness that the Secretary of state's decision would involve to the individual. The more conventional approach is to apply the Wednesbury test to the decision. In a case such as this, where important human rights are in play, a particularly rigorous examination of the decision is required in accordance with the guidance given by Sir Thomas Bingham, MR, in Reg. v Ministry of Defence ex parte Smith [1996] QB 517 at pp.554-5. Whichever approach is adopted the result in this case is the same. The Secretary of State has not sought to advance any considerations of public interest in support of his decision. For the reasons that I have given I find that his decision to remove the appellant to Germany rather than determine his entitlement to asylum in this country was unreasonable and should be quashed. 71. For these reasons I would allow this appeal. LORD JUSTICE KENNEDY: 72. I agree. LORD JUSTICE DYSON: 73. I also agree. ORDER: 1. Appeal allowed with costs here and below. 2. Order below quashed. 3. Leave to appeal to the House of Lords refused. 4. Public Funding Taxation. (Order does not form part of approved Judgment) © 2001 Crown Copyright BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII