Judgments - Regina v Secretary of State For The Home Department, Ex Parte Zeqiri

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    36. After the judgement of Collins J the Home Office formed the view that although he had not expressly decided anything about pre-25 March 1999 certifications, the principle of the case should apply equally to them. This meant that the appeal in the Besnik Gashi case had little if any practical significance for any of the applicants in the same situation. They could all be re-certified. The Secretary of State therefore petitioned the House of Lords for leave to withdraw his appeal. On 26 October 2000 it was by leave withdrawn. On 2 November 2000 the Secretary of State wrote to the present respondent Mr Zeqiri. He referred to the judgment of Collins J and quoted the declarations which had in principle been approved and said:

    "Following the judgment of [Collins J] … 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 [1996 Act]…"

    37. Mr Zeqiri amended his application for judicial review to include a challenge to the decision of 2 November 2000. The application came before Moses J and was dismissed on 15 December 2000. On 12 March 2001 the Court of Appeal (Lord Phillips of Worth Matravers MR, Kennedy and Dyson LJJ) allowed Mr Zequiri's appeal and quashed the decision of 2 November. The grounds were, first, that Mr Zequiri had a legitimate expectation that unless the Secretary of State was successful in his appeal in the Besnik Gashi case, he and all other applicants whose cases had been adjourned pending the Besnik Gashi decision would receive substantive consideration of their asylum claims, and secondly that it was unfair of the Secretary of State, having left Mr Zeqiri in a state of uncertainty while he waited for the Besnik Gashi appeal to be heard, to remove him to Germany on other grounds. This would deprive him of what he regarded as the advantage of having his claim determined in the United Kingdom rather than Germany. Against that decision the Secretary of State appeals to your Lordships' House.

    38. My Lords, I think that the first step is to consider whether the Secretary of State's letter of 2 November 2000 purported to be a certificate within the meaning of section 2(1) of the 1996 Act. The difficulty arises from the fact that the Secretary of State said that he was entitled to "review his certificate" and that he was satisfied that "he may properly maintain his certificate". This looks as if he was not issuing a new certificate but seeking to revive one which, as a result of the application of the unappealed decision in the Besnik Gashi case, had been held unlawful and void. So it was submitted that the Secretary of State's letter was ineffective. It did not purport to be a new certificate and could not resurrect the old one.

    39. Moses J rejected this argument and Lord Phillips MR, at paragraph 47, said that it was "purely a matter of form". I agree. The statute requires the Secretary of State to address the position at the time when he is giving the certificate: he must certify that in his opinion the subsection (2) conditions "are fulfilled" and condition (c) is that the German government "would not" send the applicant to another country otherwise than in accordance with the Convention. The letter says that he has "taken into account the present situation" and in my opinion the important passage, in which he addresses the applicant's situation, is paragraph 6:

    "The Secretary of State remains clearly of the view that your client is properly returnable to Germany under section 2 of the [1996 Act] and that he is readmissible to Germany under the provisions of the Dublin Convention".

    He does not use the word "certify" and I agree with Lord Phillips MR that the use of the words "review" and "maintain" in relation to the earlier certificate were inappropriate. But on a fair reading of the letter it seems to me inescapable that the Secretary of State is saying that in the circumstances as they then exist, the subsection (2) conditions are in his opinion satisfied. The letter should therefore be treated as a certificate as of the date it was written.

    40. I turn therefore to the question of whether Mr Zeqiri had a legitimate expectation that unless the House of Lords reversed the Besnik Gashi case, his application for asylum would receive substantive consideration in the United Kingdom. There is no doubt that the Besnik Gashi case was regarded as a test case for all Albanian Kosovar applicants, such as Mr Zeqiri, who were seeking to challenge the section 2 certificates for their removal to Germany. But what does that mean? In my opinion, that the applicants and the Home Office agreed to abide by whatever the Benik Gashi case decided. None of the issues decided by the Court of Appeal would be relitigated.

    41. It might well have been expected that the outcome of the Besnik Gashi case would be either that the certificate would be upheld or that it would be quashed and the Home Secretary directed to determine the asylum applications. But there was a third possibility, which was the one which actually happened, namely that the certificate would be quashed on grounds which did not preclude the Home Secretary from reconsidering the matter and issuing a new one.

    42. In the Court of Appeal in this case, Mr Gill did not accept that this was the outcome of the Besnik Gashi case. He said that once a certificate had been 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". Lord Phillips MR rejected that argument. He said, at paragraph 50:

    "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."

    43. There is no cross-appeal against that decision, which I respectfully think was obviously right. So it was common cause before your Lordships that the Besnik Gashi case did not prevent the Secretary of State from issuing a new certificate on 2 November 2000. What the Court of Appeal said in this case, however, was that the conduct of the Secretary of State in relation to that appeal gave rise to a legitimate expectation that unless he overturned the decision on appeal, he would not issue a fresh certificate.

    44. It is well established that conduct by an officer of state equivalent to a breach of contract or breach of representation may be an abuse of power for which judicial review is the appropriate remedy: see Lord Templeman in R v Inland Revenue Commissioners, Ex p Preston [1985] AC 835, 866-867. This particular form of the more general concept of abuse of power has been characterised as the denial of a legitimate expectation. In considering the expectations which may legitimately arise from statements to taxpayers by the Inland Revenue, Bingham LJ said that they must be "clear, unambiguous and devoid of relevant qualification": see R v Inland Revenue Commissioners, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569G. Mr Gill said that while it might be appropriate in the case of dealings between the Revenue and sophisticated tax advisers to insist upon a high degree of clarity in the alleged representation, this need not necessarily be required in other cases. Kosovar refugees cannot be expected to check the small print. In principle I agree that an alleged representation must be construed in the context in which it is made. The question is not whether it would have founded an estoppel in private law but the broader question of whether, as Simon Brown LJ said in R v Inland Revenue Commissioners, Ex p Unilever plc [1996] STC 681, 695B, a public authority acting contrary to the representation would be acting "with conspicuous unfairness" and in that sense abusing its power.

    45. In the present case what is relied upon is not a representation directly to the applicants but one which is said to arise out of the conduct of adversarial litigation and was made to the applicant's legal representatives. The question is therefore what would have been understood by a lawyer rather than an unaided Kosovar refugee.

    46. There is no suggestion that the Secretary of State made any representation in advance of the Besnik Gashi hearing that, if his certificate was quashed, on whatever grounds, he would (subject to an appeal) give substantive consideration to the applications. As I have said, a quashing on some of the grounds advanced by Mr Gashi might in practice have left the Secretary of State with no choice. But that was not necessarily the case. Clearly, however, Buxton LJ obtained the impression during the hearing that substantive consideration would follow. His concluding remarks began with the words "it follows". Before your Lordships, it was accepted on both sides that it did not follow from anything which Buxton LJ had said before. So there must have been some silent premise. But what was it?

    47. Lord Phillips MR said, at paragraph 61, that Buxton LJ's conclusion reflected a "general expectation" that the case would be determinative of whether the claims to asylum would be determined in this country or in Germany. That may well have been the expectation before the judgment was delivered. In fact, however, the judgment did not determine the question. Possibly Buxton LJ's remarks were based upon the way Mr Michael Beloff QC had conducted the case for the Secretary of State. It was part of his argument that requiring the Secretary of State to analyse the track records of other member states in dealing with asylum applications would be very burdensome. Mr Beloff may, for forensic purposes, have given the impression that the task was virtually impossible. All this is entirely speculative. Mr Pannick QC, who appeared for the Secretary of State, has consulted Miss Giovanetti, who was present in the Court of Appeal. She says that counsel for the Secretary of State made no express statement that the application would automatically be entertained if the certificate was quashed. Mr Gill does not suggest otherwise, but he does say that the "common expectation" was that the case would be determinative.

    48. In my opinion there is no evidence to show that Buxton LJ's concluding remark reflects an express or implied promise by the Secretary of State. This view is in my opinion confirmed by what happened when the judgment was handed down. Miss Giovanetti had instructions to ask for leave to appeal. She knew that, if leave was refused (as ordinarily it would be), the Secretary of State might wish to petition the House. She was asked by Evans LJ whether she wanted a stay of the order and she said that she did not. The only conclusion which anyone in court could draw is that Miss Giovanetti did not think that the judgment required the Secretary of State to determine the substantive applications. If it did, the fact that she was appealing would not have been sufficient to suspend the obligation. She would have required a stay. In the absence of a stay, there would have been no point in pursuing an appeal.

    49. Lord Phillips MR, in deciding that the conduct of the Secretary of State "carried a clear message" that he regarded the Besnik Gashi decision as obliging him to determine the applications, said that Miss Giovanetti (who had seen a draft of the judgment in advance) could have said at the hand down (or two later hearings to clear up various points) that the Secretary of State disagreed with Buxton LJ's conclusion. What she in fact said was that the Secretary of State would consider the judgment in the light of the law it set out. This seems to me a perfectly reasonable attitude. There were various hypotheses on which Buxton LJ could have been right. For example, if the submission which Mr Gill afterwards made to the Court of Appeal in the present case about the impossibility of issuing any fresh certificate had been accepted, he would certainly have been right. But the question was not immediately relevant because on any view, nothing was going to happen until the question of an appeal had been decided. So there was no point in getting into an argument about Buxton LJ's obiter dicta. Miss Giovanetti made it clear that the Secretary of State accepted the judgment for whatever as a matter of law it decided. I do not think any further representation can be implied.

    50. Furthermore, Mr Gashi's solicitors almost immediately asserted their understanding, based entirely upon what Buxton LJ had said, that the Secretary of State was obliged to consider his application. So did other solicitors. In reply, the Secretary of State made it clear that, despite the absence of a stay, he was not under any such obligation. And his letters indicate that this was not merely because he was contemplating an appeal but also because he wished to obtain legal advice on the effect of the judgment.

    51. Lord Phillips MR said, at paragraphs 63-65, that the Secretary of State could have undone the effect of his implied representation at the hearing if he had acted immediately after the end of the Kosovo bombing and told applicants like Mr Zeqiri that they would now be recertified. Instead, he waited for a ruling on the post-25 March 1999 recertifications in May 2000 and then applied that ruling to the earlier applicants. He therefore allowed them 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." Paragraph 65).

    52. My Lords, since I do not think that there were reasonable grounds for ascribing to the Secretary of State the creation of any such impression, I do not think that it was incumbent upon him to take action to correct it. It was not unreasonable for him to obtain a ruling on whether he could issue a certificate which reflected changed circumstances and he notified applicants like Mr Zeqiri that the ruling could have consequences for them. They did not avail themselves of their liberty to intervene. On the other hand, they did not suggest to the Secretary of State that this was because they did not accept that the ruling could affect them. Still less did they say that the reason was an assurance that their cases depended exclusively upon the outcome of the Besnik Gashi appeal. The reason for their non-intervention was, I imagine, that the pre- and post-25 March 1999 applicants were largely represented by the same group of solicitors and counsel.

    53. Furthermore, there seems to me no ground for believing that if the Secretary of State had recertified the pre-25 March 1999 applicants immediately after 13 July that year, the issues would have been clarified any earlier. The earlier applicants might have been formally represented before Collins J. On the other hand, their reaction to the invitation to be joined suggests that they might have wanted their cases to be separately determined. In either case, it is likely that some of the questions which have been raised in this litigation would have had to be decided.

    54. For these reasons I would respectfully disagree with the Court of Appeal on the finding that the Secretary of State had created a legitimate expectation. In my view there was no conduct which amounted within its context to a sufficiently clear representation as to the effect of the Besnik Gashi case. I do not think there would be any unfairness or abuse of power in allowing the Secretary of State to treat that case as deciding no more than it actually did.

    55. The Court of Appeal also made a separate finding that recertification by the Secretary of State would be unfair: "It is unfair that the Secretary of State should change tack at this late stage" (paragraph 68). But that finding is in reality another way of saying that the Secretary of State had unequivocally nailed his colours to the Besnik Gashi appeal mast. Otherwise there was no change of tack. And in my opinion there is no evidence that there was.

    56. Mr Gill put forward two additional grounds for claiming that the decision to certify was unfair. The first was that Mr Gashi had received substantive consideration (in the event, his application for asylum was rejected) and it was unfair that everyone else in his position should not receive the same treatment. But the Secretary of State has explained why he exercised his discretion in favour of Mr Gashi. He had been advised that this would avoid any possibility that the appeal to the House of Lords might go off upon some point which left the issue of principle undecided. It would therefore be advantageous for the general administration of the immigration service if Mr Gashi's personal circumstances could be removed from consideration. It seems to me reasonable for the Secretary of State to have acted upon this advice, even if over cautious. Although I accept that it would be unfair of the Secretary of State not to treat like cases alike in the sense of discriminating against someone upon inadequate grounds, it would unduly restrict his discretion if he could not make an ex gratia concession on the ground of a general public interest in the fair and efficient administration of the immigration law: compare Bingham LJ's remarks on concessions by the Inland Revenue in the MFK case [1990] 1 WLR 1545, 1568.

    57. Mr Gill's second ground was that the Secretary of State did not have sufficient regard to the unfairness of removing Mr Zeqiri to Germany after he had been here since 1998. In Shefki Gashi and Artan Gjoka's case (unreported) 15 June 2000, at paragraph 13, Collins J. said:

    "If the member state requested to deal with the claim accedes to the request in accordance with the Dublin Convention, allegations of 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…delay is not material."

    58. In his certification letter of 2 November 2000, the Secretary of State invited Mr Zeqiri to put forward any personal grounds for the exercise of the discretion. Mr Zeqiri did so and the Secretary of State considered them in a letter of 15 November. Mr Zeqiri has no family or other ties with this country. All that can be said is that he has made friends (principally with other Kosovo Albanians) during a period prolonged by his legal proceedings and during which he was aware that the Secretary of State regarded him as removable to Germany. In my opinion it is impossible to challenge the conclusion that these were insufficient grounds to require an exercise of discretion in his favour.

    59. The judgment of the Court of Appeal was influenced by the view, expressed by Lord Phillips MR in paragraph 70, that a "particularly rigorous examination of the decision" was required because "important human rights are in play". If the question was whether or not Germany would return the applicant to the possibility of persecution, contrary to the Geneva Convention, I would certainly accept that very close scrutiny of the decision was appropriate. In this case, however, it is accepted by the applicant that the German authorities will examine his claim in accordance with the Convention. While therefore I entirely accept that Mr Zeqiri's wish to remain in the United Kingdom is an important matter to be taken into account, I do not think that it justifies the courts in placing unnecessary obstacles in the way of the administration of the Dublin Convention.

    60. I would allow the appeal and dismiss the application.

LORD MILLETT

My Lords,

    61. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Hoffmann. I agree with it, and for the reasons he gives I too would allow the appeal.

LORD RODGER OF EARLSFERRY

My Lords,

    62. I have had the advantage of reading the speeches of my noble and learned friends Lord Mackay of Clashfern and Lord Hoffmann in draft. For the reasons which they give, I too would allow the appeal.

    63. The point which has troubled me most is what happened when the Court of Appeal gave judgment in the Besnik Gashi [1999] INLR 276 case. We were shown a note taken by a pupil who was present. I confess that I have not found it as easy as Lord Hoffmann to affirm that the only conclusion which anyone in court could have drawn from Miss Giovanetti's indication that she did not want a stay was that she did not think that the judgment required the Secretary of State to determine the substantive applications. While that might indeed have been plain if nothing more had been said, it is by no means so clear when the answer is considered against the preceding exchanges between Mr Dias and Buxton LJ and between Buxton LJ and Miss Giovanetti. Indeed, in the light of those exchanges, I even wonder whether the judges and the opposing counsel actually drew that conclusion from what she said. If they did, I find it surprising that they said nothing.

    64. On the other hand, I accept that the inference identified by Lord Hoffmann is certainly one way - and indeed probably the best way - of interpreting that particular reply by Miss Giovanetti. In these circumstances, even if there is an element of doubt, what she said in court cannot in itself constitute the kind of "clear and unambiguous representation" on behalf of the Secretary of State upon which it would have been reasonable for the respondent to rely: R v Devon County Council, Ex p Baker [1995] 1 All ER 73, 88F per Simon Brown LJ. Her statements could therefore not in themselves be a sound basis for any legitimate expectation that the Secretary of State would determine the substantive applications for asylum of persons such as the applicant. Furthermore, I find nothing in the later exchanges between the Secretary of State's representatives and the lawyers for the parties concerned which would found a legitimate expectation of that kind.

 
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