England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MR JUSTICE SCOTT-BAKER)

		Royal Courts of Justice Strand London WC2 20 November 2001

1. THE PRESIDENT: I will ask Lord Justice Keene to give the first judgment.
2. LORD JUSTICE KEENE: These are two renewed applications for permission to appeal in asylum cases. They have been dealt with together because the issues in them are largely the same. Mr Kiche is Algerian. He arrived in the United Kingdom via a number of countries, including Greece. The Secretary of State certified under the 1996 Act that, under the Dublin Convention, Greece was the appropriate country to deal substantively with his asylum application.
3. Agim Gashi is a Kosovan Albanian who arrived with his wife and family in the UK via Greece. Again, Greece accepted responsibility for his asylum claim under the Dublin Convention and once again the Secretary of State certified the claim under the 1996 Act on the basis that Mr Gashi could be removed to Greece as a safe third country.
4. Both Mr Kiche and Mr Gashi were refused judicial review by Scott Baker J, despite their contention that Greece was not a safe third country because of its approach to persecution by non-state agents. In both cases the certificate was issued under Section 2 of the Immigration and Asylum Act 1996, before the coming into force of section 11 of the Immigration and Asylum Act 1999 on 2 October 2000.
5. Miss Harrison, who has appeared on behalf of both applicants, has raised a fresh point which she contends justifies adjourning today's applications to await the outcome of the case of Homeini Mohammed, where Turner J has granted permission to seek judicial review. That hearing is due to take place on 11 and 12 December 2001. The issue to be raised in that case is whether section 11 of the 1999 Act is incompatible with Article 3 of the European Convention on Human Rights. That is not an issue which has been raised on the present applications, nor was it raised before Scott Baker J. Nonetheless, Miss Harrison argues that it would be appropriate to await the outcome of that decision because it could affect the situation with respect to section 11, were it to be held by the High Court to be incompatible with the European Convention.
6. We have had the benefit of submissions on behalf of the Secretary of State from Miss Giovannetti. On instructions she has indicated that the Secretary of State would undertake not to remove these applicants, if their present applications were dismissed, until after the High Court decision in Homeini Mohammed. Indeed, it has been confirmed, as one would expect, that the Secretary of State would review the present cases if the issue in respect of section 11 were to go against him in those particular proceedings.
7. Form my part, and bearing in mind that no argument has been raised in these cases specifically about the incompatibility of section 11 with Article 3, the undertaking given by the Secretary of State suffices to justify this court not adjourning this matter, but dealing with the merits of the arguments which have been raised.
8. The main argument which Miss Harrison puts forward concerns what has been described as retrospectivety. Section 11 of the 1999 Act reads:

"In determining whether a person in relation to whom a certificate has been issued under subsection (2) may be removed from the United Kingdom, a member State is to be regarded as-

(a) a place where a person's life and liberty is not threatened by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and

(b) a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention."

9. In effect, therefore, that provision deems member states of the European Community to be safe third countries. Scott Baker J held that, while section 11 did not apply as such to certificates issued by the Secretary of State before 2 October 2000, it would be futile to grant judicial review of such certificates in respect of an EU member state because, if such a certificate were quashed, the Secretary of State would be very likely to issue a fresh certificate which, by virtue of section 11, would not be open to challenge on the basis that the country in question was not a safe third country.
10. It is now said on behalf of the applicants that this would give to the legislation retrospective effect. Miss Harrison contends that to allow the Secretary of State to recertify in a situation such as this, once an initial certificate has been quashed, would be to allow him to deal with the matter where someone had already acquired a vested right. She points out that the Court of Appeal in R v SSHD ex p Zeqiri [2001] EWCA Civ 342 were not as such considering re-certification under section 11. They were merely dealing with the ability of Secretary of State to recertify once an initial certificate had been quashed. It is unnecessary to quote the relevant passages from Zeqiri but, in essence, Lord Phillips, MR, at paragraph 50 and the following paragraphs, said that in accordance with the normal principles of administrative law, if a decision was quashed, the decision maker may, and sometimes must, make a fresh decision. Normally, if a certificate were to be quashed, the Secretary of State undoubtedly could reconsider whether to certify or not. But Miss Harrison contends that the Secretary of State cannot re-certify in cases such as the present ones where the original decision was made under the 1996 Act. That Act has now been repealed and we are dealing with the unique situation which arises under the 1999 Act.
11. As I have indicated, it is contended that this would be to take away vested rights of the applicants. Some reliance is placed upon the decision of the Court of Appeal in R v SSHD ex p Chowdry [1998] INLR 338. I find these arguments wholly unconvincing. It is well-established in the immigration and asylum field that when a decision is re-made, it must normally reflect the up-to-date situation. The decision maker must take account of new facts and new law in the decision which he makes. The argument that the Secretary of State cannot recertify is, Miss Harrison concedes, only applicable where there has been a previous determination. She accepts that it cannot have been Parliament's intention to restrict the operation of section 11 to applications made after 2 October 2000. She only argues that it cannot be intended to apply where an application is both made and determined before 2 October 2000.
12. Consequently, the unusual situation which would arise would be that, unlike the situation before 2 October 2000, where the Secretary of State could recertify when a certificate was quashed, and unlike the situation now where a certificate if quashed would enable the Secretary of State to recertify, one would have a sort of limbo whereby certain certificates, although quashed, would not give rise to a fresh opportunity to recertify.
13. This seems to me to misunderstand the situation. In Chowdry there would have been a vested right of appeal once there had been a determination against the applicant. That is not the situation here. Once the original certificates in the present cases are quashed, there are then simply outstanding applications for asylum. There are no vested rights as such. There might be something which is akin to legitimate expectation, which is Miss Harrison's second point, that the application could be dealt with in a particular way, but there is no vested right which could be taken away by the Secretary of State operating section 11 of the later Act.
14. I cannot see that this situation gives rise to any retrospectivety. It seems to me quite unarguable that the Secretary of State could not take section 11 into account, or that the courts, on any subsequent challenge to a new certificate, could ignore section 11. That is not to give it retrospective effect because section 11 would be in force by the time of the decision, and the process which I have just described would not be interfering with any vested rights of these applicants.
15. The other argument which is raised is one of legitimate expectation. This comes about simply because at one stage in the process of these present applications for judicial review, it was agreed that the claims should be adjourned pending a decision in a case called Kerkeb and Bourheraoua v SSHD. Miss Harrison relies upon that case as giving rise to a legitimate expectation. It is said that these are test cases. She relies on the Secretary of State's conduct in that he left these two present cases adjourned for some time pending the outcome of Kerkeb and Bourheraoua, first in the High Court and then in the Court of Appeal.
16. The crucial question is whether the Secretary of State, by his conduct, led Mr Gashi and/or Mr Kiche to believe that if those cases were decided in favour of the asylum seekers, then their cases would be decided substantively in the UK or, at the very least, they would not be treated otherwise than under the 1996 legislation.
17. The argument seemed to be based on the Court of Appeal's decision in Zeqiri where there was found to be a legitimate expectation of the kind I have described. But, there the Court of Appeal, on looking at the facts of that case, concluded that the Secretary of State had conveyed a clear message to that effect to that applicant. It was a question of fact. I have been through the correspondence carefully in both these cases and I cannot see anything in that correspondence, or anything else in the facts of these cases, which could give rise to such an expectation. Merely to seek to, or to agree to, an adjournment of a case, pending a decision in another, cannot normally be seen as giving rise to an expectation that the outcome of that other case will automatically determine what happens in the adjourned case. All it indicates is that that outcome is expected to be of some significance or some relevance.
18. In this case there was no representation or other conduct conveying a message that, if those two cases were decided against the Secretary of State, then these present applications would be dealt with under the 1996 legislation, which has by now been repealed.
19. In those circumstances, I can see no real prospect of success on these applications were they to be allowed to go to appeal. For my part, I would consequently dismiss them.
20. THE PRESIDENT: I agree.
Order: Applications for permission to appeal dismissed. Public funding certificate.