|Judgments - Z T (Kosovo) (Respondent) v Secretary of State for the Home Department (Appellant)
49. This issue is not mentioned by Lord Phillips in para 12, but your Lordships have been asked to deal with it in view of the doubts raised by Sir Henry Brookes decision to grant permission to appeal to the Court of Appeal in the light of the decision in R (WM (DRC)) v Secretary of State for the Home Department  EWCA Civ 1495;  Imm AR 337. He did so as he considered it arguable that Collins J, when he refused permission for judicial review of the Secretary of States decision, had not applied the right test. That however was a case where the Secretary of States consideration whether new material produced by failed asylum applicants constituted a fresh claim was under rule 353: see para 1.
50. In para 11 of his judgment in WM Buxton LJ said that the question for the Secretary of State, when considering whether or not a fresh claim had been made, was not whether he himself thinks that the new claim is a good one but whether there was a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant would be exposed to a real risk of persecution on return. If the court could not be satisfied that the Secretary of State had addressed herself to that question it would have to grant an application for review of that decision. He declined to apply the approach that Lord Bingham of Cornhill in R (Razgar) v Secretary of State for the Home Department  UKHL 27;  2 AC 368, para 17, said was appropriate to the question whether a claim was manifestly unfounded in section 94 cases, namely that the reviewing court must ask itself essentially the questions that would have to be answered by an adjudicator. In R (L) v Secretary of State for the Home Department  EWCA Civ 25;  1 WLR 1230, para 56 Lord Phillips of Worth Matravers MR said that the question whether a claim was clearly unfounded was a question which admitted of only one answer: see also Tozlukaya v Secretary of State for the Home Department  EWCA Civ 379,  Imm AR 417, para 44. But Buxton LJ said that this was not necessarily so when the review was informed, as it would need to be in rule 353 cases, by the need for anxious scrutiny. In his view, in borderline cases, there could be more than one answer: para 18.
51. I do not think that it is necessary to consider whether Buxton LJs observations were sound or not in this case, although as at present advised I see no reason to disagree with them as a guide to the approach that should be taken in rule 353 cases. This case, however, is a section 94 case. Nothing that he said was intended to apply to cases of this kind. Indeed the whole purpose of his remarks was to distinguish the situation that applies under section 94 from that which applies where a decision under rule 353 is in issue.
52. The starting point for an examination of the question whether or not a claim is clearly unfounded in terms of section 94 is to be found in R (Yogathas) v Secretary of State for the Home Department  1 AC 920, where it was stressed that the level of scrutiny that was required of the Secretary of State by this phrase sets a high threshold: see paras 14 and 34. The test that was under consideration in that case was whether under section 72(2)(a) of the Immigration and Asylum Act 1999 the claim was manifestly unfounded", but that is in effect the same test as that which section 94 of the 2002 Act lays down. As Lord Hodge observed in FNG, Petitioner  CSOH 22, para 10, the focus of the test in section 94 is primarily on the quality of the claim rather than the prospects of success on an appeal. The prospects of success on an appeal, not the quality of the claim, is the test that rule 353 uses to determine whether there is a fresh claim. Lord Hutton in Yogathas para 74 drew attention to the standard of scrutiny that the court in its turn must apply when it is reviewing the Secretary of States section 94 certificate.
53. For the Secretary of State Mr Kovats submitted that the court should ask itself whether a reasonable Secretary of State could be satisfied that the claim was clearly unfounded, ie was bound to fail on appeal. He suggested that the observation in R (L) v Secretary of State for the Home Department  EWCA Civ 25;  1 WLR 1230, para 56, that the test was an objective one, as a claim was either clearly unfounded or it was not, might require reconsideration in an appropriate case. The process was essentially one of review, and there might be cases where the issue was not so clear cut. Mr Juss for the respondent submitted that what he described as a bland Wednesbury approach was inappropriate in this context. The proper approach was to subject the decision whether the claim was clearly unfounded to anxious scrutiny. He invited your Lordships to endorse Lord Hodges opinion in FNG, Petitioner  CSOH 22, para 14, where he said that a court, in deciding whether the Secretary of State was entitled to be satisfied that a claim was clearly unfounded:
must (i) ask the questions which an immigration judge would ask about the claim and (ii) ask itself whether on any legitimate view of the law and the facts any of those questions might be answered in the claimants favour.
54. In my opinion courts should continue to follow the guidance that the House gave in R (Razgar) v Secretary of State for the Home Department  2 AC 368 as to how section 94 cases should be dealt with. Although the claim in that case was certified under section 72 of the 1999 Act and was on human rights grounds only, the guidance that it provides is just as relevant to cases certified under sections 94(2) and (3) of the 2002 Act and to asylum claims too. The approach that Lord Hodge described in FNG, Petitioner, para 14, is attractive because it encapsulates in a simple formula what Lord Bingham said in Razgar. The key points in Lord Binghams opinion in that case are to be found in para 17 where he said that a reviewing court must consider how an appeal would be likely to fare before an adjudicator as the body responsible for deciding any appeal, and in para 20 where he said that a reviewing court must assess the judgment which would or might be made by an adjudicator on appeal. The questions that a reviewing court must ask itself, which Lord Bingham described in para 17, must be subjected to anxious scrutiny. It may become clear that the quality of the claim is such that the facts of the case admit of only one answer. But the process, as these observations serve to emphasise, is essentially one of review.
55. I would be uneasy about substituting for the guidance that Lord Bingham gave in Razgar the observations of the Court of Appeal in R (L) v Secretary of State for the Home Department  1 WLR 1230, para 56. That case was among those that were cited in argument in Razgar, but it was not referred to by any of their Lordships. They do not sit easily with Lord Binghams analysis in para 18 of the answers that the reviewing court might give to questions that would have to be answered by an adjudicator. It would be better to follow Lord Binghams careful guidance, which allows for the fact that there may perhaps be cases, albeit rarely, where the reviewing court recognises there may be more than one answer. It must be stressed that the court is not an appellate court. Its function throughout is that of review. Its jurisdiction to deal with the case, outside the decision-making scheme laid down by the statute, rests entirely on that principle.
56. This, as it happens, is a case where the facts permit only one answer. They were summarised by Collins J in his judgment, which Sedley LJ quoted in para 4 of his judgment. I think that it is clear that an adjudicator, exercising his judgment on those facts, would be unable to decide an appeal against the Secretary of States decision in the respondents favour. In my opinion Collins J was right to refuse permission for judicial review in this case. I would allow the appeal and affirm the order that he made.
57. I have had the advantage of reading in draft the opinions prepared by your Lordships, and I agree with the conclusion reached by each of you, that the appeal should be allowed. My reasons are not, however, identical with those expressed in varying terms by your Lordships and accordingly I shall set out the course of my own reasoning, as it affects the way in which I think that cases of the present nature should be handled by the Home Office.
58. A formidable power has been conferred upon the Secretary of State by section 94 of the Nationality, Immigration and Asylum Act 2002. If she certifies that a claim is clearly unfounded, the person claiming asylum can be removed at an early date and is not entitled to remain in the United Kingdom to pursue an appeal against the decision to refuse asylum, which has to be brought from outside the United Kingdom. The object is to minimise the possibility that claimants with a groundless application can prolong their stay in the United Kingdom for a substantial period while they traverse the appellate process. Because of the draconian nature of this power, the House expressed the opinion in R (Yogathas) v Secretary of State for the Home Department  UKHL 36,  1 AC 920, in considering the predecessor provision, that in order to justify its exercise the claim must be so clearly lacking in substance that it is bound to fail (para 34, per Lord Hope of Craighead, and cf para 14, per Lord Bingham of Cornhill). It is necessary accordingly that the matter must receive most anxious scrutiny before a certificate is issued, in order to give full weight to the obligations of the United Kingdom under the European Convention on Human Rights (ibid, paras 9, 34).
59. A claimant may seek to adduce further material in support of his claims, which may or may not constitute significant a addition to those which he had earlier submitted without success. To meet this situation rule 353 was made (for the text of rules 353 and 353A see the opinion of my noble and learned friend Lord Phillips of Worth Matravers at para 9). This is relatively straightforward to operate where the Secretary of State has not given a certificate under section 94, its object being to obviate the necessity for her to reconsider every further submission as a fresh claim attracting the full panoply of the appeal process. If she has given a section 94 certificate, but there is an appeal against her refusal of asylum pending - which has had to be brought from outside the United Kingdom -- the further submissions will fall to be considered as part of the material before the appellate tribunal and rule 353 will not come into play. The problem which arises in the present case is how the matter should be dealt with if a section 94 certificate was given but the claimant has not instituted an appeal, though it would be still open to him to do so from outside the United Kingdom. My noble and learned friend Lord Hope of Craighead considers that in such a case rule 353 does not apply and the Secretary of State has merely to consider whether the section 94 decision should still be maintained. The rest of your Lordships take the view, however, that rule 353 does apply in such a case and that the Court of Appeal were right in holding that the Secretary of State had gone down the wrong pathway in reverting to considering it in terms of the continued application of section 94.
60. In my opinion there are indications in the text of rule 353 that it is intended to apply to the present case. In the first place, the word pending ought to bear its ordinary meaning, that an appeal has been instituted but has not yet been disposed of. This accords with the definition in section 104 of the 2002 Act, as to which see para 14 of Lord Phillips opinion. Secondly, I see some significance in the use of the word any". It carries the implication that an appeal has come into existence at some time. The whole phrase and any appeal is no longer pending should therefore be read in parenthesis, referring to a situation where an appeal has been brought and disposed of.
61. If a claimant seeks to adduce further material, the Secretary of State should commence by considering whether the claim has been refused or withdrawn or is treated as having been withdrawn. If so, she then asks if an appeal has been brought and, if so, whether it is still pending or has been disposed of. If it is still pending, rule 353 does not apply, and the further material is dealt with as part of the appeal. If it has been brought but is no longer pending, then rule 353 applies and the Secretary of State applies the criteria which it lays down. If no appeal has been brought, the phrase in parenthesis does not enter into consideration and rule 353 applies.
62. Some of your Lordships take the view that the test of clearly unfounded in section 94 and a realistic prospect of success under rule 353 amount to the same thing, so that it is immaterial which provision is applied. I am not convinced that this is correct. One can envisage situations - though they may be rare - in which the tests would not produce the same result and Lord Hope has illustrated the lack of congruity between the tests in para 46 of his opinion. The possible difference is not, however, a matter of great consequence. The Yogathas decision underlines the importance of preserving the strictness of the clearly unfounded test. Whatever the difference may be, it follows from the strictness of that test that a claimant to whom it is applied could not satisfy the realistic prospect of success test.
63. It may be helpful to set out the sequence of consideration which the Secretary of State should follow in a case such as the present, where a section 94 certificate has been given, which requires the claimant to leave the United Kingdom and to bring any appeal from outside the country, but while still in the United Kingdom he has submitted further material
(i) if she accepts that the further material now gives the claimant a valid claim to asylum, she should reverse the previous refusal, with the consequence that the claimant can remain in the United Kingdom;
(ii) if she considers that the further material still does not give the claimant a valid claim to asylum, but satisfies the criteria for a fresh claim, she should refuse the claim, whereupon the claimant can pursue an appeal from within the United Kingdom against the refusal;
(iii) if she does not accept that the further material satisfies the criteria for a fresh claim, she should reject the submissions as further representations, leaving the section 94 certificate still standing.
64. I agree with your Lordships, however, that in the present case if the Secretary of State had followed the correct procedure of considering the further material under rule 353, she would have reached just the same conclusion. As I have stated, if the claim continued to satisfy the stringent test of being clearly unfounded, it must follow that it could not be said that it had a realistic prospect of success. For that reason I would allow the appeal.
65. I agree with Lord Hopes conclusion on what he has termed the scrutiny issue. The issue is similar to that posed in R v Pendleton  UKHL 66,  1 WLR 72 concerning the way in which the Court of Appeal should review the safety of a criminal conviction. The matter is, as Lord Hope says, essentially one of review and I agree that the concise summary of the process produced by Lord Hodge in FNG, Petitioner  CSOH 22, para 14, encapsulating the observations of Lord Bingham of Cornhill in R (Razgar) v Secretary of State for the Home Department  UKHL 27,  2 AC 368, 389, para 17, forms a useful guide to the reviewing court.
LORD BROWN OF EATON-UNDER-HEYWOOD
66. The real issues raised by this appeal are, to my mind, these: (1) Is there any material distinction between a human rights or asylum claim which has [no] realistic prospect of success and one which is clearly unfounded"?; (2) When determining a judicial review challenge to the Secretary of States characterisation of such a claim as one having no realistic prospect of success or, as the case may be, as being clearly unfounded, is there any material distinction between on the one hand the Court adopting a conventional Wednesbury approach (albeit, in this fundamental rights context, subject to anxious scrutiny), and on the other hand the Court deciding for itself whether the claim should properly have been so characterisedit being common ground between the parties that the correct touchstone for deciding whether a claim is properly to be so characterised is whether it would be bound to fail on appeal to the AIT.
67. If, as I believe, the answer to both those questions is a clear no", ie there is no material distinction in either case, the issues ostensibly raised for your Lordships determination on this appeal lose all significance. It matters not whether, in a case where the Secretary of State has already certified the claim under section 94 of the Nationality, Immigration and Asylum Act 2002 as clearly unfounded", she should be considering further submissions under that provision (so as to decide whether or not to maintain certification), or under rule 353 of the Immigration rules (HC395) so as to decide whether, overall, the claim now has a realistic prospect of success (so as to amount to a fresh claim). Similarly it matters not whether the Court is overtly adopting a conventional judicial review approach to a challenge or rather an approach appropriate to an appellate tribunal.
68. Before turning to what I have called the real issues, I shall nevertheless touch briefly on the two issues as they were presented to us.
Q1. Was the Secretary of State right to have reconsidered this case under section 94 or should she have done so under rule 353?
69. These provisions are to be found in other of your Lordships opinions but it is perhaps convenient to set out their core wording again here:
Section 94(2): A person may not bring an appeal [against a refused human rights or asylum claim] in reliance on section 92(4)(a) if the Secretary of State certifies that the claim or claims . . . is or are clearly unfounded.
Section 92 (4)(a) would otherwise have permitted the appellant to appeal against the refusal of his or her human rights or asylum claim while in the United Kingdom". Section 94 (9): expressly provides for an appeal against a certificated claim from outside the United Kingdom". In short, the effect of certification is to prevent an appeal save from abroad. Rule 353 provides:
When a human rights or asylum claim has been refused . . . 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.
70. As will be seen, rule 353 applies only when any appeal relating to [the refused] claim is no longer pending". Section 104 (1) of the 2002 Act provides that an appeal . . . is pending during the period (a) beginning when it is instituted, and (b) ending when it is finally determined, withdrawn or abandoned . . . . An appeal against a claim which has been both refused and certified under section 94 cannot be pending whilst the claimant remains in the UK since by definition it cannot by then have been instituted. Rule 353 accordingly applies to any further submissions advanced in respect of such a claim.
71. In short, on this issue (or non-issue as I would prefer to regard it) I agree with all that is said by my noble and learned friend Lord Phillips of Worth Matravers at paragraphs 13-16 of his opinion.
Q2. On a judicial review of the section 94 certification or of a refusal to accept that further submissions amount to a fresh claim, what should be the Courts approach?
72. I entertain no doubt that the correct approach is that conventionally adopted on a judicial review challenge: Wednesbury (with, in the present context, anxious scrutiny). It by no means follows, however, that there is any material difference between this approach and that of an appellate court when, as here, the issue ultimately before the court is: could the AIT on appeal possibly have allowed the claim? To that I shall return. So much for this second non-issue.
Q3. Is the test as to whether a claim is clearly unfounded any different from as opposed to the mirror image of the test as to whether it has a realistic prospect of success"?
73. For the life of me I cannot see any logical distinction between the two. It seems to me plain that if one properly says of a case that it is clearly unfounded, one is saying no more and no less than that it has no realistic prospect of success; and vice versa. To try to find room between these two tests is in my opinion to dance on the head of a pin: they are the opposite sides of the same coin.
74. And why, indeed, should they not be the same test? The object of certification under section 94 is to shut out in-country appeals in the case of hopeless claims. The object of rule 353, at the same time as enabling truly fresh claims to be brought and (if rejected) nevertheless to proceed to appeal, is to prevent fresh in-country rights of appeal arising in the case of re-asserted but still hopeless claims. In both cases (i.e. consideration under both section 94 and rule 353) it would be appropriate, even though ex-hypothesi the claims are being rejected by the Secretary of State, to allow them to proceed to an in-country appeal to the AIT if there is any reasonable chance of an appeal being successful, but otherwise not.
Q4. In this particular context is there any material difference between a supervisory and an appellate jurisdiction?
75. As I have said, the critical question for the Courts determination in these cases is: could the AIT possibly allow an appeal against the rejection of the claim or would it be bound to dismiss it (again, the opposite sides of the same coin)? Could the Court ever reach the position of saying: we ourselves do not think that an appeal to the AIT in this case would have been bound to fail but we think that it was reasonable for the Secretary of State to decide that it would? In my opinion it could not. If the Court concludes that an appeal to the AIT might succeed, it must uphold the challenge and allow such an in-country appeal to be brought.
76. It follows that on this issue also I agree with what Lord Phillips says at para 23 of his opinion.
77. On the facts of the present case I think that the Court of Appeal erred in upholding the respondents challenge. In common with all your Lordships I would accordingly allow the Secretary of States appeal and substitute for the Court of Appeals order an order dismissing the judicial review application with costs.
LORD NEUBERGER OF ABBOTSBURY
78. The facts and statutory provisions giving rise to this appeal have been set out by my noble and learned friends, Lord Phillips of Worth Matravers, Lord Hope of Craighead, Lord Carswell, and Lord Brown of Eaton-under-Heywood in their respective opinions which I have had the benefit of reading in draft. As there is a difference of view on some of the points which have been raised, I propose to explain, albeit briefly, why I agree that this appeal must be allowed.
79. I propose to consider the issues in the following order:
(a) Is there any difference of approach required by section 94(2) of the 2002 Act and rule 353 of the Immigration Rules?
(b) What is the proper approach for the court to adopt to a refusal under either provision?
(c) Which of the two provisions applied here?
(d) How should this appeal be disposed of?
80. The first point it is convenient to consider is whether there is any difference in the requirement of rule 353, under which the Secretary of State must be satisfied that a claim has a realistic prospect of success", and section 94(2), under which she must be satisfied that a claim is not clearly unfounded). My initial opinion was that there was no difference between the effects of the two expressions, and that they were in practice mirror images of each other. In other words, it seemed to me that, as a matter of ordinary language, if a claim is clearly unfounded then it has no realistic prospect of success (and vice versa), and if it has a realistic prospect of success then it is not clearly unfounded (and vice versa). This opinion also seemed to me to be supported by the purpose of the two provisions in which the expressions were found. In each case, it is to shut out hopeless applications, but not those which have some potential merit. Whoever is right on the question of which provision applied here, it might appear to be illogical if different standards were applied under the two provisions, given that they are both ultimately concerned with very similar types of situation, types of claim, and types of rights, as Lord Brown says.