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|Judgments - Z T (Kosovo) (Respondent) v Secretary of State for the Home Department (Appellant)
HOUSE OF LORDS
 UKHL 6
on appeal from:EWCA Civ14
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Z T (Kosovo) (Respondent) v Secretary of State for the Home Department (Appellant)
Lord Phillips of Worth Matravers
Lord Hope of Craighead
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury
(Instructed by Treasury Solicitors )
(Instructed by Riaz Khan & Co )
Hearing date :
13 NOVEMBER 2008
WEDNESDAY 4 FEBRUARY 2009
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
ZT (Kosovo) (Respondent) v Secretary of State for the Home Department (Appellant)
 UKHL 6
LORD PHILLIPS OF WORTH MATRAVERS
1. Section 94 of the Nationality, Immigration and Asylum Act 2002 (section 94) makes provision for the Secretary of State, on refusing an appeal in an asylum claim or a human rights claim or both, to certify that the claim or claims is or are clearly unfounded. The effect of so certifying is that the claimant is precluded from bringing an appeal to the Asylum and Immigration Tribunal (the AIT) against the Secretary of States decision from within the United Kingdom. This appeal raises the following issues of procedure: (1) Where the Secretary of State has so certified, how should she approach the consideration of further submissions made by the claimant from within the jurisdiction? (2) How should the court, in proceedings for judicial review, approach the decision made by the Secretary of State in relation to those further submissions?
The initial claim
2. The respondent, ZT, is a Kosovar Ashkali, which is a sub-group of the Roma. arrived clandestinely in the United Kingdom from Kosovo, which was then part of Serbia, on 14 August 2003. He claimed asylum and protection on Human Rights grounds from being sent back to Kosovo. The grounds of his claim were as follows. The Roma constitute a minority that is widely subjected to persecution in Eastern Europe, including Serbia. Some 17 years earlier ZT had married a lady who was not of his ethnicity. He concealed his ethnicity from her for three years, and from her family until 2002, when they discovered that he was not Albanian, but Ashkali. His wifes brothers then attacked him and beat him up and took his wife and children away from him. They, however, managed to follow him to England. His fear was that if he returned to Kosovo, his wifes brothers would find him and that this time they would kill him.
3. The decision of the Secretary of State was set out in a lengthy letter dated 2 December 2005 by a member of the Asylum Casework Directorate on behalf of the Secretary of State. Her first conclusion was that the authorities in Kosovo would afford ZT sufficient protection from attack from his wifes family, if he sought that protection. In any event, however, if he was fearful of attack from his wifes family, he and his family could go to live in some other part of Kosovo and could reasonably be expected to do so. There was nothing about ZTs appearance or his speech that would lead anyone, who was not aware of his ethnicity, to suspect that he was other than an Albanian.
4. The letter certified pursuant to section 94 that ZTs claims were clearly unfounded. But for that certification ZT would, pursuant to section 92 of the 2002 Act, have enjoyed a right of appeal to the AIT under section 82 of that Act from within the United Kingdom (an in country appeal). The effect of the certification was that ZT could only exercise a right of appeal to the AIT once he had left the jurisdiction (an out of country appeal). Under the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230) notice of an in country appeal has to be given within 5 days of receiving notice of the decision to be appealed against if the appellant is detained and within 10 days if he is not (Rule 7(1)). Time for giving an out of country appeal for someone in the position of ZT does not begin to run until he leaves the United Kingdom. Notice of appeal has to be given within 28 days of leaving the United Kingdom (Rule 7(2)).
5. Despite the certification by the Secretary of State, ZT lodged an appeal with the AIT. The AIT struck out that appeal on 9 January 2006. On 20 January 2006 ZT made further submissions to the Secretary of State on asylum and human rights grounds, accompanied by some additional material. On 11 May 2006 an official from the Enforcement & Removals Directorate wrote on behalf of the Secretary of State rejecting the further submissions and stating that the certification of the claims as clearly unfounded was maintained.
6. By this time ZT had lodged an application to seek judicial review - on 5 April 2006. This challenged the Secretary of States certification of ZTs claims. On 19 June 2006 McCombe J refused permission on the papers. On 23 August 2006 ZT lodged a supplementary bundle in the judicial review proceedings. The Secretary of State gave consideration to these as further representations and, in a letter from the same officer of the Enforcement & Removals Directorate dated 2 November 2006, once again rejected the further representations and maintained the certification.
7. On 7 November 2006 Collins J received oral submissions in support of the application for permission to seek judicial review. The only ground advanced for challenging the Secretary of States decision was that it was not one that he could properly have reached on the evidence. Collins J. did not accept this and refused the permission sought.
Permission to appeal
8. ZT applied for permission to appeal against the decision of Collins J. On 19 January 2007 Sir Henry Brooke granted permission on the papers. He did so on the ground that a decision of the Court of Appeal delivered after Collins Js decision suggested that the approach that had been adopted by the Secretary of State had been erroneous. That decision was WM (DRC) v Secretary of State for the Home Department and Secretary of State for the Home Department v AR (Afghanistan).  EWCA Civ 1495;  Imm AR 337. Those appeals had related to refused asylum applications in cases in which the Secretary of State had not issued certificates under section 94 of the 2002 Act. No appeals had been made to the AIT and the time for making such appeals had expired. Further representations with fresh evidence had then been made to the Secretary of State. The Secretary of State had, quite correctly, treated those further representations as being covered by rule 353 of the Immigration Rules (HC 395) (rule 353).
9. Rule 353 in its present form dates from October 2004. It provides:
When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas.
353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.
This paragraph does not apply to submissions made overseas.
10. The Secretary of State was concerned at the basis upon which Sir Henry Brooke had granted permission to appeal. This was because she did not consider that rule 353 had had any application in ZTs case. She further considered that it was important that it should be clearly established that this was the position. Accordingly she took the unusual step of applying to set aside the grant of permission to appeal. The Court of Appeal held that it was not an appropriate case to set aside the order of Sir Henry Brooke, although it would be open to the Secretary of State to pursue her challenge to the application of rule 353. The Court of Appeal would itself hear the application for judicial review.
The decision of the Court of Appeal
11. Buxton, Sedley and Pumfrey LJJ heard the appeal. All three agreed that the appeal should be allowed, but tragically, Pumfrey LJ died before judgments had been prepared. Sedley LJ gave the leading judgment. He held, without giving any reasons for so doing, that the procedure laid down by rule 353 should have been applied to the further submissions made by ZT. Had that procedure been applied the Secretary of State might have come to a different decision. Accordingly her decision fell to be quashed so that she could consider ZTs renewed application according to rule 353. Buxton LJ agreed with this result but, for his part, said that he would assume that the process engaged rule 353.
12. Three issues arise out of the decision of the Court of Appeal: 1) was the court correct to find that the Secretary of State should have approached ZTs further submissions on the basis that rule 353 applied to them? 2) If so, might it have made a difference to the Secretary of States decision if she had proceeded in accordance with rule 353? 3) Must the case be remitted to the Secretary of State for further consideration?
Did rule 353 apply?
13. Rule 353 applies where a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending. The critical issue relates to the words that I have emphasised. Mr Kovats for the Secretary of State submitted that so long as it remained open to a claimant to bring an appeal it could not be said that an appeal relating to the claim was no longer pending. Those words meant so long as an appeal is not open to the claimant'. Thus rule 353 had no application if a claimant was pursuing an appeal or it was still open to him to pursue an appeal, whether in country or out of country. Because it was still open to ZT to bring an out of country appeal rule 353 did not apply to him.
14. I have two problems with this interpretation of rule 353. The first is that it is in conflict with the definition of a pending appeal in section 104 of the Act. That section provides:
(1) An appeal under section 82(1) is pending during the period
(a) beginning when it is instituted, and
(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99.)
If there is no appeal pending, the qualification and any appeal is no longer pending has no application. Thus, if the wording of rule 353 is read in conjunction with section 104, as I believe that it should be, the procedure that it lays down must be applied if a claim has been refused and no appeal has been instituted.
15. My second problem with the Secretary of States submission is that it does not produce a sensible result. Rule 353 would seem designed to make express provision for the circumstances in which the Secretary of State may be required to consider further submissions. If an appeal is pending within the meaning of section 104 she will be under no obligation to consider further submissions. They can properly be made to the appeal tribunal. Nor in practice will any question arise of the Secretary of State being required to consider further submissions in the very short period (ten days at the most) that will elapse between the delivery of her decision and the institution of, or expiry of the time for bringing, an in country appeal. One of the situations where the Secretary of State will be required to give consideration to further submissions is in a situation such as that with which this appeal is concerned. Where a claimant remains in this country after the refusal of a claim that has been certified under section 94, the obligations of the Refugee Convention and the Human Rights Act leave the Secretary of State no alternative but to consider further submissions. Her response to this point is that she does not need the provisions of rule 353 - she can adopt an appropriate procedure anyway. I do not find this argument persuasive. It seems to me more sensible for rule 353 to apply in this situation just as in the other situations where the Secretary of State is called upon to consider fresh submissions.
16. For these reasons I have reached the conclusion that the Court of Appeal was correct to proceed upon the basis that rule 353 applied to the further submissions that were made by ZT to the Secretary of State.
Might it have made a difference to the Secretary of States decision if she had proceeded in accordance with rule 353?
17. The approach of the Secretary of State, acting through the decision taker, in a case such as this was explained by her counsel to the Court of Appeal and by Mr Kovats to your Lordships. The effect of that explanation is as follows. The Secretary of State accepts that if fresh submissions are made she has to reconsider her certification that the claim is clearly unfounded. The claim may be founded on one ground, or on more than one. The fresh submissions may be directed to bolstering an existing ground or to advancing a fresh ground. In reconsidering her certification the Secretary of State has regard to the entirety of the claim. If there is a single ground, the strength of that ground has to be considered in the light of all the relevant evidence. If there is more than one ground, the strength of each has to be evaluated. If the further submissions persuade the Secretary of State that the claim is a good one, she will allow it; if not she will reject it. In the latter case, she considers whether her certificate that the claim is clearly unfounded should be maintained. If all the grounds are clearly unfounded the certificate stands. If any ground is not clearly unfounded the certificate is lifted and the applicant can pursue all the grounds on an in country appeal. I shall describe this procedure as the section 94 reconsideration in order to compare it with the rule 353 procedure'.
18. The Secretary of State carried out the section 94 reconsideration in the case of ZT and concluded that his claim remained clearly unfounded. Might she have come to a different result had she applied the 353 procedure? That procedure would first have required her to decide whether she accepted or rejected the further submissions. That is precisely what she will have done under the section 94 reconsideration. Thus the first stage of the 353 procedure would have produced the same result. ZTs further submissions would have been rejected. Having rejected the further submissions the 353 procedure would have required the Secretary of State to determine whether they amount to a fresh claim". Rule 353 defines the test. The further submissions will amount to a fresh claim if their content taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection". The 353 procedure would thus have required the Secretary of State to consider ZTs claim as a whole, just as she will have done under the section 94 reconsideration. The section 94 reconsideration led the Secretary of State to conclude that ZTs claim remained clearly unfounded'. Might she have concluded that it had a realistic prospect of success had she applied the rule 353 procedure? Only if the test of whether or not a claim has a realistic prospect of success is more generous to the claimant than the test of whether or not a claim is clearly unfounded'. Plainly it is not. A claim that is clearly unfounded cannot possibly have a reasonable prospect of success. Arguably a claim that has no realistic prospect of success may not be so hopeless as to be deemed clearly unfounded'. If so, in carrying out the section 94 reconsideration the Secretary of State was more generous to ZT than she would have been had she applied the rule 353 procedure. Whichever course was adopted she would have rejected ZTs further submissions and denied him a right of an in country appeal. ZT retains his right of an out of country appeal and will be free to seek to boost the prospects of that appeal by reference to the further submissions. He would have been in precisely the same position had the Secretary of State followed the rule 353 procedure.
19. My conclusions differ from those of Sedley LJ, whose reasoning I did not find persuasive. Buxton LJ thought that adopting a rule 353 approach was unlikely to produce a different result, but that the Secretary of State ought to be required to go through that exercise none the less. I do not agree.
20. It is possible that the Secretary of State does not treat no realistic prospect of success as constituting a test that is quite so extreme as clearly unfounded', so that her decision takers are applying a somewhat less generous approach to a claimant when considering further submissions if the claimant has no in country appeal pending because such appeal has been rejected or never pursued than the approach that they apply where the claimants original claim has been certified under section 94. If so I consider this difference of approach to be unjustified and undesirable. If further submissions advance a sufficiently strong case to justify an in country right of appeal in the one case I cannot see why they should not do so in the other. In short I consider that the Secretary of State should apply the rule 353 procedure in respect of cases that have been certified under section 94 and should, in all cases, treat a claim as having a realistic prospect of success unless it is clearly unfounded.
Must the case be remitted to the Secretary of State for further consideration?
21. Notwithstanding that he might have failed to persuade your Lordships that the Secretary of State had made a material error in procedure, it remained open to Mr Satvinder Juss, who appeared for ZT, to seek to establish that the decision reached by the Secretary of State could not be sustained. In this context there was some debate as to the approach that should be adopted by the court when reviewing the Secretary of States decision. Must the court substitute its own view of whether the claim is clearly unfounded, or has no realistic prospect of success, for that of the Secretary of State or is the approach the now familiar one of judicial review that involves the anxious scrutiny that is required where human rights are in issue. ZT is seeking judicial review and thus I would accept that, as a matter of principle the latter is the correct approach. I consider, however, that in a case such as this, either approach involves the same mental process.
22. The test of whether a claim is clearly unfounded is a black and white test. The result cannot, for instance, depend upon whether the burden of proof is on the claimant or the Secretary of State, albeit that section 94 makes express provision in relation to the burden of proof - in R(L) v Secretary of State for the Home Department  EWCA Civ 25;  1 WLR 1230, paragraphs 56 to 59 I put the matter as follows.
56 Section 115(1) empowersbut does not requirethe Home Secretary to certify any claim which is clearly unfounded'. The test is an objective one; it depends not on the Home Secretarys view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not.
57 How, if at all, does the test in section 115(6) differ in practice from this? It requires the Home Secretary to certify all claims from the listed states unless satisfied that the claim is not clearly unfounded'. It is useful to start with the ordinary process, such as section 115(1) calls for. Here the decision-maker will (i) consider the factual substance and detail of the claim, (ii) consider how it stands with the known background data, (iii) consider whether in the round it is capable of belief, (iv) if not, consider whether some part of it is capable of belief, (v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention. If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not.
58 Assuming that decision-makerswho are ordinarily at the level of executive officersare sensible individuals but not trained logicians, there is no intelligible way of applying section 115(6) except by a similar process of inquiry and reasoning to that described above. In order to decide whether they are satisfied that the claim is not clearly unfounded, they will need to consider the same questions. If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded. If that point is reached, the decision-maker cannot conclude otherwise. He or she will by definition be satisfied that the claim is not clearly unfounded. Miss Carss-Frisk for the Home Secretary has properly accepted that this is the correct approach.
23. Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of States conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of States view was irrational.
24. In the present case Mr Juss did not take us to the facts to seek to persuade us that, on the evidence before her, including that adduced under further submissions, the Secretary of State was irrational to conclude that ZTs claim was clearly unfounded. I have, however, considered the evidence before the Secretary of State and the reasoning of the decision letters. The further submissions added nothing of significance to the claim that was originally certified by the Secretary of State. The decision letter of 2 November 2006 referred to a number of decisions that clearly established the reasoning of the AIT in rejecting claims of persons in equivalent positions to that of ZT. My conclusion is that the Secretary of State was right to conclude that ZTs claim was clearly unfounded, for an appeal to the AIT would have no realistic prospect of success.
25. For these reasons I would allow this appeal.
LORD HOPE OF CRAIGHEAD
26. I have had the advantage of reading in draft the opinions of all my noble and learned friends. I agree with them that this appeal should be allowed. But I regret that I am unable to agree with the reasons that they give for making this order.
27. In my opinion the procedure that rule 353 of the Immigration Rules sets out does not apply in this case. The relevant rule, if a rule is needed, is rule 353A. At first sight the question whether rule 353 applies may seem rather technical and unimportant. That might have been so if the rule was then left to speak for itself. Unfortunately my noble and learned friends do not leave it there. They seek to construe the words which rule 353 uses in the light of the procedure that section 94 of the Nationality, Immigration and Asylum Act 2002 describes. This creates a very real problem, in two respects. First, a careful examination of rule 353 shows that its purpose is to be found in the middle of the rule, not the beginning. It also shows that these two procedures are entirely separate from each other. Second, the test for certifying under section 94 differs from that for determining whether there is a fresh claim under rule 353. This is not just a difference in wording. The section 94 test is, as a decision of this House explains (see para 39), intended to be more rigorous. A finding that there is no material distinction between them risks causing confusion and disrupting the way they are operated in practice. I believe that it is important for the integrity of the system for which they were designed that these procedures should be kept separate. I hope that I may be forgiven for setting out my reasons at some length. The answer to the problem is really quite simple once the true purpose of rule 353 is understood.