R v. Secretary of State for the Home Department, Ex parte Shquipe Gecaj and Ors

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte SHQUIPE GECAJ AND ORS

CO/3916/96

14 May 1997

Queen's Bench Division: Hidden J

Asylum-Tribunal had determined that ethnic Albanians from Kosovo were entitled to asylum-Secretary of State requested to expedite outstanding applications from ethnic Albanians from Kosovo-declined to give precedence to such cases - whether refusal unreasonable.

The applicants for judicial review claimed to be ethnic Albanians from Kosovo. In the case of Gashi and anr the Tribunal had concluded that ethnic Albanians from Kosovo were entitled to asylum. Following that decision the representatives of the applicants requested the Secretary of State to expedite decisions in cases where applications for asylum from those claiming to be ethnic Albanians from Kosovo were outstanding and to concede those cases already under appeal. The Secretary of State declined to do so. It was argued that his refusal was unreasonable, and the time many of the applications had been outstanding in itself was unreasonable.

Held:

1. The time had not yet come when it could be said that the applications had been outstanding for so long as to make the failure to determine them unreasonable and unlawful.

2.The refusal of the Secretary of State to give precedence to such cases was not itself unreasonable.

0 Davies for the applicants

I Burnett for the respondent

Cases referred to in the judgment:

R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704: [1984] 1 All ER 983.

CSSU v Minister for the Civil Service [1985] AC 374: [1984] 3 All ER 935.

Pratt v Attorney General for Jamaica [1994] 2 AC 1: [1993] 4 All ER 769.

Boban Lazarevic v Secretary of State for the Home Department sub.nom. Hassan Adan and ors v Secretary of State for the Home Department [1997] Imm AR 251.

Gashi (unreported) (13695).

HIDDEN J: These applications for judicial review are made by seven ethnic Albanians who have come to this country from Kosovo in the Federal Republic of Yugoslavia (FRY). They are all asylum seekers and they have reached different stages along the path to asylum. The applications are all made in the light of the decision of the Immigration Appeal Tribunal in the case of Urim Gashi and Astrit Nikshiqui v Secretary of State for the Home Department given in the middle of last year to which I shall need to refer later in this judgment.

Shquipe Gecaj is a 29-year-old woman who arrived in the United Kingdom on 4 December 1991 and submitted her application on 21 October 1992 which has still not been determined. On 30 September 1996 her solicitor wrote to the Secretary of State seeking expedition of her application and, if necessary, an interview forthwith.

In a letter from the Secretary of State dated 9 October it was stated that:

" her case remained in a queue of work awaiting attention and I am afraid we are not persuaded that sufficiently compelling grounds have been advanced for according her application particular priority at the expense of other applicants in similar circumstances who are likely to be equally deserving. "

She seeks to quash that decision by an order of certiorari and further an order of mandamus to require the Secretary of State to grant her asylum or alternatively to make a decision in her case on her request for asylum.

The other six applicants are all men. Vedat Breznica who is 23 arrived in the United Kingdom on 18 November 1993 and applied for asylum on 17 January 1994. His application form was submitted to the Home Office on 21 June 1994. On 24 July 1995 he was due to attend an interview but failed to appear. He is a draft evader. On 20 September 1995 the Secretary of State refused the application by letter which said:

"12.The Secretary of State understands that draft evasion is widespread in Kosovo and that the authorities do not have the resources to follow up all cases of those who have not responded to call-up papers. He also considers that it is not unreasonable for the authorities to take steps to trace draft evaders and does not consider that such actions constitute persecution under the terms of the 1951 United Nations Convention. He also notes that the authorities do not seem to have taken any action against you to enforce their previous call-ups during your time in Kosovo."

He was released on temporary admission under schedule 2 of the 1971 Immigration Act. He has an appeal pending to the special adjudicator which was due to be heard on 13 August 1997. In the letter of 9 October 1996 the Secretary of State said:

"We have noted what you say about Vedat Breznica's case but we are not disposed to intervene and reverse the decision taken which will be tested before the Appellate Authorities in the light of the current circumstances."

In his application he seeks certiorari to quash the decisions in the two letters of 9 and 22 October, mandamus to require the granting of asylum and mandamus to require the reconsidering of the refusal to grant him asylum.

Since this judgment was prepared in draft, I have been informed that the respondent has, in fact, conceded his appeal and granted him asylum. I shall refer to that later in the judgment.

Mentor and Astrit Zymberi are brothers and are the sons of Isa Zymberi (who is incidentally the Director of the Kosovo Information Centre at Buckingham Palace Road here in London. Their father is part of the Kosovo government in exile and has been granted exceptional leave to remain in the United Kingdom).

Mentor is 25 and arrived in the United Kingdom on 11 August 1991, having received his call-up papers about 10 days previously. He was given leave to enter as a visitor and on 19 June 1992 he applied for asylum. On 6 March 1996 he was interviewed and served with a notice of illegal entry. His application has not yet been determined.

Astrit is 23 and fled his country to avoid military service in June 1991. He arrived in the United Kingdom on 22 July 1994 and was initially granted leave to enter on the strength of a false passport as a visitor. He applied for asylum on 17 September 1994 and his application remains outstanding and unresolved. He was interviewed on 5 March 1996 when he was served with a notice of illegal entry. He is due to be recalled at any time for an interview. Both brothers seek certiorari of the 2 October 1996 decisions and mandamus to require the grant of asylum or, alternatively, the making of a decision in relation to their asylum requests.

Ismet Selmani is 34 and arrived here on 7 April 1993. He applied for asylum on 19 November 1993 and was interviewed by an immigration officer on 14 November 1994. He was required to attend an interview in which he was due to be refused asylum on 15 October 1996 but his solicitor, Mr. Grant, wrote on 27 September 1996 asking that the interview be cancelled and the case be reviewed in view of the decision of the Immigration Appeal Tribunal in the case of Gashi on 16 July 1996, a decision to which I shall have to refer later. In the letter of 9 October, the Secretary of State stated:

"I am afraid that while we have examined the additional material you have submitted in Mr. Selmani's case, we are not persuaded that the interview to which you have referred should be deferred."

On 15 October the applicant appeared for interview but it was cancelled and is due to be rescheduled. He seeks certiorari to quash the decision in the 2 October 1996 letter and mandamus to require the granting of asylum or the making of a decision in respect of his requests for asylum.

Sejdi Hajrizi is 22; he arrived here on 23 April 1994 and made an immediate application for asylum. He was in possession of a passport to which he was not entitled. His application was submitted to the Home Office on 7 June 1994 and he was further interviewed on 15 June 1996. He had failed to report for military service. On 8 August 1996 the Secretary of State refused his application for asylum. The letter, explaining the basis for refusal, made reference to a law passed on 18 June 1996 by the Federal Republic of Yugoslavia granting an amnesty to all conscripts who between 1982 and 14 December 1995 deserted the army. His appeal to the special adjudicator is due to heard on 21 November 1997, He seeks certiorari to quash the decisions in the October letters and mandamus to require the Secretary of State to reconsider the refusal of asylum.

Jeton Sadiku is 24 and within a few days of receiving his call-up papers he flew from Skopje to the United Kingdom arriving on 22 September 1991. He applied for asylum on 17 June 1992, when it became apparent that there would be no change in the political conditions in Kosovo within the foreseeable future. He is a successful businessman here and employs a number of British citizens. On 20 January 1995 his solicitor asked that he be given expedited consideration of his claim because he wished to attend a conference his company organised in Luxembourg. On I February 95, by letter, the application for expedition was refused. On 11 October 1996 his solicitor again wrote to the Secretary of State following the decision in Gashi. The reply of 22 October 1996 declined to make a decision on the application. He seeks an order of certiorari quashing the October decision letters and an order of mandamus to require the Secretary of State to grant asylum or, alternatively, to make decisions in respect of his request for asylum.

All seven applicants also seek an order of certiorari to quash those requirements of their temporary admission which restrict their liberty and their liberty to take up gainful employment.

The Gashi Decision

All seven applications arise following the decision of an Immigration Appeal Tribunal on 22 July 1996 in the case of Gashi. This was an appeal from the decision of two separate adjudicators brought by ethnic Albanians seeking refuge from the Federal Republic of Yugoslavia. The Tribunal was presided over by a Chairman of the Immigration Appeal Tribunal, and had oral submissions made to it on behalf of the UNHCR, who was a party to the proceedings.

The appeal turned on a question of law but was based on a comprehensive assessment of the fear of persecution or apprehension by ethnic Albanians from Kosovo if they were to be returned to the Federal Republic of Yugoslavia. The Tribunal found in particular that:

"We are satisfied from this evidence that the Serbian Government in Belgrade does have a system or policy which targets ethnic Albanians and is directed in the long term to their complete removal: ethnic cleansing is the euphemistic term applying to this evil."

The next sentence reads:

"The fact that the actual chance of an ordinary Albanian being individually targeted or singled out will not, if the actions towards ethnic Albanians is serious enough and both extensive and sustained,"

The text of the judgement is corrupt at this stage. It is clear some words are missing between the words "not" and "if". The judgment goes on:

"Given the background policy of the Serbian Government one can readily conclude that the degree of risk to the ethnic Albanian is sufficient to raise it to the level of serious possibility. In our view the evidence laid before us, from for example Doctor Poulton and Doctor Duijzings admits of no other reasonable conclusion at least on the criteria to establish it in asylum claims."

The Tribunal had also made a finding that the Federal Republic of Yugoslavia was not admitting into the country ethnic Albanians from Kosovo (including the appellants) and concluded its determination with these words:

"It is sufficient to base the decision as we do firstly upon the appellants' inability to return and secondly a fear of the persecution as ethnic Albanians which is objectively well founded and based on the treatment we think there is a serious possibility they may receive."

That decision of the Immigration Appeal Tribunal is, of course, binding on all adjudicators, and is not the subject of appeal. It was by reason of that decision that the applicant's solicitor, Mr. Lawrence Grant, wrote letters in respect of some of the applicants to the Secretary of State on a basis I shall shortly indicate in this judgment. In the challenged replies to those letters of 9 and 22 October 1996 the Secretary of State stated that he was not prepared to concede the ethnic Albanian cases nor to give them any priority over other applicants.

These applications therefore centre upon the effect of the decision in Gashi, and the response of the respondent, the Secretary of State for the Home Department, to that decision. Having digested the effect of Gashi, the applicant's solicitor, Mr. Grant, wrote to Mr. Sarjantson at the Immigration and Nationality Department on 27 September 1996. That letter so far as material says as follows:

"I refer to our telephone conversation yesterday when I informed you that we were writing to Lynn Smart in relation to 4 categories of cases involving our Kosovan clients. We are now forwarding to you copies of the 4 letters which we have written and which cover the following situations:

1.Where the client has been refused asylum and is awaiting an appeal hearing: Verdat Breznica Home Office Ref. B527621

2.Where the client has been refused but has not yet been given a refusal interview: Ismet Selami Home Office Ref. S817122. The interview is scheduled at Status Park on 15 October 1996.

3.Where the client has had an initial interview but no decision has yet been made: Fatos Berisha Home Office Ref. B526093."

[Berisha is not an applicant in this case].

"4. Where the client has not been interviewed but an application for asylum has been made in the years 1992/94: Shqipe Gecaj Home Office Ref. G344193.

In view of the Immigration Appeal Tribunal decision Gashi and Nikshiqui (IAT 13695) we anticipate that we shall be receiving instructions from several hundred clients who fit into one of these categories and who will expect us to write similar or identical letters to you.

We believe it is only right to inform you that we have been asked by a number of clients whether it would be appropriate to seek an order of judicial review of your failure to make decisions in their cases following the Gashi judgment.

We have taken the view that it would be proper first to write to you in the terms set out in the enclosed letters. We do however reserve the right to proceed to a judicial review at any stage which we regard as appropriate.

If you believe it would be useful to meet to discuss matters, no doubt you will let us know."

To that letter, Mr. Sarjantson, the Assistant Director of the Immigration and Nationality Directorate of the Home Office (IND) replied in a letter of 9 October 1996 which reads:

"Thank you for your letter of 27th September about the implications for asylum applicants from Kosovo of the Immigration Appeal Tribunal in the cases of Gashi and Nikshiqui (13695).

We are, of course, well aware that, in the absence of a contrary Tribunal determination, Gashi and Nikshiqui are for the present binding on Special Adjudicators hearing the appeals of ethnic Albanians from Kosovo who assert that they have a well-founded fear of persecution in the Federal Republic of Yugoslavia (FRY) on account of their ethnicity. However, while the Tribunal's determination provides a precedent against which other cases will be assessed, we do not accept that the Secretary of State is similarly bound to follow its conclusions in every case henceforth.

The Tribunal found in Gashi and Nikshiqui that asylum should be granted owing to the treatment it thought there was a serious possibility the appellants may receive, on account of their ethnicity, in the FRY. But the Tribunal's view was based (as it had to be) on its best assessment of the situation in the FRY at the date of its determination (22 July 1996) and in the foreseeable future. As you will appreciate, however, country conditions often change and we are bound to make a fresh appraisal of the Tribunal's findings in the light both of any such change and any new relevant information about the treatment an ethnic Albanian from Kosovo is likely to receive. For example, we know that since the Tribunal hearing there has been an amnesty for draft evaders and deserters and an agreement between the FRY Government and LDK over resumption of education for ethnic Albanians.

As you may be aware, we have granted asylum in a number of cases since the Tribunal determination but we believe that we should continue to examine cases individually in the light of our assessment of the likely risk of persecution for a Convention reason, based on the latest information we have. Where we refuse asylum, it remains open to an aggrieved applicant to challenge the decision before a Special Adjudicator.

Turning to the specific cases you have mentioned, I am afraid that, while we have examined the additional material you have submitted in Mr. Selmani's case (S 817122), we are not persuaded that the interview to which you have referred should be deferred."

The letter goes on:

"We have noted what you say about Vedat Breznica's case (B 527621) but are not disposed to intervene and reverse the decision taken, which will be tested before the appellate authorities in the light of the current circumstances.

As regards Shqipe Gecaj, her case remains in a queue of work awaiting attention and I am afraid that we are not persuaded that sufficiently compelling grounds have been advanced for according her application particular priority at the expense of other applicants in similar circumstances who are likely to be equally anxious to have their claims determined."

There was a further exchange of letters between Mr. Grant and the IND on 11 and 22 October dealing with Jeton Sadiku. The letter of 11 October had crossed with the reply of 9 October. In the letter from IND, dated 22 October 1996, a copy of the letter of 9 October was enclosed. It was said in the final two paragraphs:

"As indicated in that letter, we do not accept that the Secretary of State is bound to follow the conclusions of the Tribunal in Gashi and Nikshiqui in every case. Each case will continue to be considered on its individual merits, taking account of all of the relevant information including the most up-to-date situation in the Federal Republic of Yugoslavia.

Turning specifically to the case of Mr. Sadiku, his application for asylum is currently awaiting consideration in a queue of work. Although we do intend to interview Mr. Sadiku in due course, I am aware of no circumstances which would justify dealing with Mr. Sadiku's application out of turn. "

It was these responses which led to the application for judicial review made in this case.

In his Form 86A Mr. Owen Davies, for the applicants, submits that the decision of the Secretary of State in refusing to grant asylum to those applicants, whose applications remain outstanding, is unlawful in that it is irrational. He says that it is irrational to hold that in respect of any outstanding application for asylum and also in respect of any application refused but not yet subject to appeal that an ethnic Albanian will have any less fear of a well-founded fear of persecution a month after the decision in Gashi than in the considerable period of application before the determination of the Tribunal. The decision of the Secretary of State, therefore, in refusing to reverse or, alternatively, to reconsider the refusal of the asylum claims in the case of Breznica and Selmani is unlawful in that it is irrational. Mr. Davies submits that once the Tribunal has made a determination on the situation in Kosovo, as it effects all ethnic Albanians, the Secretary of State acts unlawfully in failing to give effect to that determination.

In a further or alternative argument, Mr. Davies says that the power vested by Parliament in the Secretary of State, to exercise control over the freedom of movement and liberty to enter gainful employment in respect of an asylum seeker is to be exercised for such a period of time as is reasonably necessary to determine an application. A failure to perform the exercise within such a period makes the continuing exercise of those powers unlawful (see re Hardial Singh [1984] 1 All ER 983 at 987).

He further submits that the fact that an application may take a decision-maker a disproportionate amount of time to determine should not be a factor to rebound upon the applicant, whether the delay can be placed at the door of the decision-maker or even if he is blameless (see Pratt v Attorney-General of Jamaica [1994] 2 AC I at 27 and 29). He submits that this is especially so in consequence of an application for asylum or an adverse decision by the Secretary of State if the applicant for asylum is deprived of the means whereby he can sustain himself and acquire accommodation at the expense of the state as well as being deprived of the opportunity to sustain himself and pay for accommodation from his earnings from gainful employment.

In argument, Mr. Davies' complaint is that the request made by Mr. Grant that all cases falling into the category of ethnic Albanian applicants from Kosovo should have their adverse decisions reconsidered and any outstanding appeals considered as a matter of priority was met by the Secretary of State's refusal and was irrational. He submits that there are three propositions of law involved.

Firstly, the time comes when a determination must be made on an application for asylum. In the case of a first instance decision, a time comes at which the denial of the decision becomes unlawful. This is especially so when an authority of an independent decision of the Immigration Appeal Tribunal has been made as in Gashi. In the case of the relevant applicants, a reasonable period of time has elapsed by which a decision should have been made.

Secondly, any inability of the system to deal with the applications for asylum and/or the appeals from adverse decisions within a reasonable time should not rebound on the applicants. This is especially so, he says, where machinery exists to enable the status of a refugee to be considered and, if necessary, to disentitle an applicant from refugee status.

Thirdly, in the case of an adverse decision subject to appeal and outstanding applications for asylum in an identifiable category of case, it is an abuse of the applicable law further to delay or refuse the grant of asylum for at least a period of time once there has been a decision of the Immigration Appeal Tribunal of normative effect.

Mr. Davies argues that the evaluation of the arguments in the light of the facts is a matter of judgment and draws attention to a number of consequences which will follow if the applicants are wrong in this challenge. He says that it will mean that, in respect of ethnic Albanians from Kosovo, large numbers of genuine asylum seekers will suffer further extended physical and emotional difficulties in awaiting resolution of their cases, large amounts of public money will be disproportionately expended in preparation of individual cases, and unrepresented asylum seekers will be at a great risk of being unable to present their cases.

He says that in each case there has been an unlawful exercise of powers vested in the Secretary of State. He says that account must be taken in judging the reasonableness of the Secretary of State's approach of the adverse effect on other applicants for asylum and of the consequent potential in delay and injustice to them. He argues that the reasons for the state of affairs revealed by the evidence is not an answer to his criticism. He appreciates the task of the Secretary of State is onerous and requires a fair allocation of resources and that the court will not intervene within certain limits of the discretion.

However, he says the policy being applied here is irrational to the point of unlawfulness. He says that the court is not being invited to consider the extent to which there has been a change in the situation on the ground, though independent sources doubt whether there has been such a change. The material submitted only serves to illustrate that there is cause for concern. The arguments of the applicants are that, in the circumstances of these cases, political changes are for consideration on applications for extensions of refugee status and on consideration of the powers under the Convention.

He draws attention to article 1 (c)(5) of the United Nations Convention on the status of refugees which provides:

"This Convention shall cease to apply to any person falling under the terms of Section A if,

...

(5)He can no longer, because of the circumstances in connection with which he has been recognised to be a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality." (The cessation clause).

He points also to the decision in the Court of Appeal (13 February 1997) in Lazarevic, Radivojevic, Adan and Nooh v Secretary of State for the Home Department*[1] in which Simon Brown LJ said (at page 24) that the Secretary of State:

"is, it seems to me, perfectly entitled to give them sanctuary here only for the limited period of their actual need, returning them to their countries of origin once their conflicts end and their borders reopen. Article 1(c)(5) expressly so allows."

Mr. Davies submits that where a power is vested in the Secretary of State which, until it is determined, brings with it not only legal restrictions on a freedom of movement but also very serious additional emotional burdens, the Secretary of State's exercise of his discretion must be exercised within a reasonable time which ended with the Gashi decision. After that decision, Mr. Davies says it is no longer reasonable not to make a decision.

I turn now to the evidence placed before me and in particular to that of the applicant's solicitor, Mr Lawrence Grant. He is very clearly a man eminently well placed to provide the court with the benefit of his knowledge and experience in that he is a partner in the applicant's solicitors firm, having responsibility for a considerable practice in immigration law in which he has practised almost exclusively since 1986. He is co-author of a number of works on immigration law and has amongst other distinctions taught the law and practice of immigration at all levels. He has the conduct of a great many similar applications to those of these applicants and estimated that he was currently dealing with 900 "live cases". He estimates that his firm acts for 25% of all Kosovo cases and the current applicants are only a selection of those in respect of which complaint could be made. These applicants illustrate a number of different features about facts which are representative of the vast majority of his outstanding cases. He points out, and I accept, that the decision of the Immigration Tribunal in Gashi is binding on adjudicators. He deals with the procedure for applying for asylum and draws attention to the dates currently offered for appeal hearings as being a long way in the future.

He draws attention to the effects of delay on applicants in paragraphs 69 to 85 of his first affirmation saying that:

"69.Under the recent changes introduced by the government the asylum applicant's time pending a resolution of his application has been made harsh, if not intolerable. The only factor that might alleviate the wait is if the wait is a short one. In reality the procedures, enquiries and staffing levels mean that most applicants wait years for a decision. None of the delays that have occurred in the cases of the applicants herein are the fault of the applicants but they have to suffer the consequences.

70.There are financial considerations which bear on the applicant for asylum. Broadly speaking this means that applicants will not receive state benefit if they apply for asylum in country rather than at, and on the occasion of, their entry. In the case of ‘third country' applicants, they receive no benefits and can only appeal from abroad against the decision not to allow them to apply for asylum in the United Kingdom. If an applicant is refused asylum, he or she is no longer entitled to receive state benefit. In other words, a person who, for any reason (1) has not applied for asylum at the first available opportunity or (2) is refused asylum but eventually succeeds on appeal has to sustain him or herself for many months if not years or leave the country.

71.This means that the fifth applicant herein and at any stage any other applicant would find themselves without income support and be forced to wait over a year for an appeal which, on the basis of the hierarchical nature of the appellate system, the adjudicator would be bound to allow.

72.1 observe that there is no legal aid for the representation of the appellants before the adjudicator or the Immigration Appeal Tribunal. I observe that there is effectively no provision for an order for costs in favour of a successful appellant, either against the Home Office or against central funds.

73.There are also restrictions on the liberty of asylum seekers. As long as an application is pending, the liberties of the applicant are restricted to a greater or lesser extent. For example, their ability to work, the possibility to travel and the requirement to live in a certain place and report to the police all impose additional practical, financial and emotional burdens on people already suffering the trauma of enforced departure from their homeland and attempting to cope in a strange culture among people speaking a language they have never learnt.

74.It has to stressed that, in a successful case, the applicant who has achieved asylum status may be able to ‘claw back' the funds that would have been owed to him during the period leading up to the grant of asylum. Whether such a person can in fact properly do so is currently subject to an appeal before the Social Security Appeal Tribunal.

75.This application is supported by the grant of a legal aid certificate for some of the applicants. Legal advice and assistance is available-means permitting-to applicants under the ‘Green Form' scheme in the stages leading up to a decision and to the preparation of an appeal against an adverse decision. The scheme will not however provide for representation at the hearing of the appeal.

76.It follows from this that, were the application to succeed there will be a net gain to the legal aid fund, inevitably, the Home Office would be bound to respect a decision of this court in relation to other cases involving ethnic Albanians from Kosovo.

77.Of course, from the lawyer's point of view, a successful outcome to this application is, in a sense, bad for business. I estimate that in my firm the Kosovan caseload would as of today's date provide us with some 50,000 from the Legal Aid Fund for the preparation of cases where we are awaiting full interviews together with a further 40,000 on cases where we are awaiting full interviews together with a further 68,000 for refusal interviews. This makes a total in excess of 50,000. If we estimate that we have a quarter of all Kosovo cases, the cost to the Legal Aid Board is in excess of million. I also believe that a large number of Kosovan appeals will be prepared by the Refugee Legal Centre which, is to a large degree, publicly funded. The Refugee Legal Centre represents Kosovans at the hearing of immigration appeals. Therefore the overall cost to the public purse may well exceed million.

78.However, I submit it is a nonsense for me to process each one of the ethnic Albanian cases emanating from the FRY as though it was the only one and that the fate of my client depended on the state of the evidence in each particular individual case.

79.On one view the only sense in refusing to allow the instant applicants asylum following the decision in Gashi is because of the hope of an improvement in the political situation in the FRY. Because it is the situation at the date of the hearing of an appeal that is determinative in refugee cases it is to the ‘advantage' of an authority to delay the processing of applications.

80.Two examples are given in the decision letter by the Secretary of State. He refers to an amnesty for draft evaders and an agreement between the FRY Government and the Democratic League of Kosovo (LDK), a leading Albanian political party, over the resumption of education for ethnic Albanians. My information on these issues is as follows. There is now produced to me as part of exhibit "LAGI " herein a true copy of a letter from the Kosovan Information Centre dated 30 October 1996. Hardly surprisingly, the applicants doubt the value of guarantees given by a person such as Slobodan Milosevic. For my part, it is inconceivable to imagine that, as a matter of reality the situation on the ground will have changed so dramatically and so quickly. In my experience the political situation in the countries from which my asylum clients have fled does not improve with such speed and such certainty.

81.So far as the amnesty for draft evaders is concerned, it is clear from the Immigration Appeal Tribunal determination in Gashi, that this issue was not central to its decision. In any event, the supposed amnesty is to be regarded with great circumspection. The mere fact that there is alleged to an amnesty does not mean that ethnic Albanians will no longer be persecuted. It is clear from a letter from the Kosovo Information Centre dated 30 October 1996 which I now produce in the bundle marked "LAGI ", that until the political situation in Kosovo has been resolved ethnic Albanians will not serve in what they regard to be ‘occupying army'. There is evidence that, notwithstanding the amnesty, ethnic Albanians continue to be drafted and arrested or imprisoned for evasion or desertion.

82.The effect of the decision in this case is to force disadvantaged and under-resourced and, to a large extent resourceful group, of vulnerable -4: people to keep running up on a down escalator. If the quality of the decision in the case of the applicant is anything to go by, the prospect of a favourable decision in the cases of the other applicants herein is not, in my estimation, good.

83.Whatever the reason advanced by the Home Office for the delay in acting on the Gashi case, the effect has been distress and anxiety and wasteful expense on the part of authorities, the Legal Aid Fund and the asylum seekers.

84.I cannot help wondering what would have happened had the immigration Appeal Tribunal or this court made an adverse ruling on a class of applicants. The ‘third country' category applicants come to mind. In those cases only a cursory investigation is necessary in order to weed out cases which can be refused outright. These cases are then subject to a fast track appeal because of the narrowness of the issue involved.

85.The absurd consequence of the decision to process all ethnic Albanian applications with all the others is that,

(i)so called ‘underserving' cases are delayed giving a whole class of persons a period of unjustified residence in the United Kingdom; and

(ii)other potentially deserving cases requiring genuine investigation are held up."

In his second affirmation he deals with the question of the changing conditions and the cessation clause and says at paragraph 18:

"The conclusion from the aforegoing is that it is not legitimate, after the considerable period of delay in the cases of the applicants, to justify yet further delay in processing their cases on the basis that things may have changed since the decision in Gashi. There must, as a matter of logic, common humanity and the interpretation of the relevant law, be a point after which further delay on the initial application amounts to an abuse of process."

Mr Grant's allegations are met in affidavits of Peter Herman, Senior Executive Officer in the HOIND (Immigration and Nationality Directorate) who observes that circumstances facing ethnic Albanians in Kosovo inevitably change as time goes by. He draws attention to certain changes. He points to two significant recent statutory changes which govern asylum claims, in the coming into force of the Asylum and Immigration Appeals Act 1993 which introduced for the first time a right of appeal in all asylum cases, and the reinstating of the Social Security (Persons from Abroad) Miscellaneous Amendment Regulations 1996 by the Asylum and Immigration Act 1996 which regime applies to decisions made from 5 February 1996.

He points out that, following the passage of the 1993 Act through Parliament, the Government decided to give priority to claims for asylum which were made after the new Act came into force on 26 July 1993 and that since then asylum claims have been split into two categories, front line cases for those after 26 July 1993 and backlog cases from before that time. He sets out the current position in paragraphs 7 to 12 of his affidavit of 5 February 1997:

"7.It may be helpful if I put the ‘Albanian Kosovan' applications in context. The best estimate of such cases outstanding is that there are about 1,400 front-line cases and about 1,200 backlog cases, a total of 2,600 cases. At the end of November 1996 there was a total of about 56,000 outstanding asylum claims being considered within the Home Office. The Kosovans thus represent just over 4.5% of such claims.

8.At the time of Mr Wardle's statement there were 41,000 outstanding applications. In the intervening 3 years the backlog rose as high as very nearly 70,000 in January 1996. To tackle the enormous volume of work involved in considering asylum applications the numbers of civil servants employed in the Asylum Directorate has substantially increased. In January 1993 there were 550 such staff and by January 1994 numbers had increased to 660. Additional staff were assigned during the course of the following year and by January 1996 there was a total of 770 staff. Despite the large numbers of staff committed to making the relevant decisions and the recent inroads made into the backlog, it is regrettable that many asylum applications (especially those which remain outstanding from before July 1993) take a long time to be determined. The officials involved are dedicated and work hard. They become specialists in the countries on which they work. There has been a 14% rise in output per caseworker over the last two years.

9.The Asylum Directorate is divided into "teams" which are themselves organised into ‘modules' which usually comprise 7 or 8 officers. Applications from FRY are dealt with by a team which also considers other claims from within Europe, excluding the former USSR. 5 modules are working on the front-line cases and 2 on the backlog. One of those modules working on the front-line cases deals with all frontline claims from FRY. Although Kosovans make up the bulk of the FRY caseload there are many other FRY nationals awaiting the resolution of their asylum claims.

10.The oldest undetermined cases involving Kosovans date from July 1991. To give an indication of how that compares with other nationalities or races it should be noted that the oldest claim from Zaire was lodged in 1988; from India and Pakistan 1989; from Turkey 1990; from Algeria and Iran 1991. Kosovans have not had to wait for a resolution of their cases for any longer than other nationalities.

11.The general approach of the Home Office is, subject to the division between front-line and backlog cases, to consider asylum applications in turn within the appropriate modules. In respect of almost all asylum claims a case for expedition could be made out. The disadvantages claimed in respect of the Kosovans apply, in so far as they apply at all, to almost all asylum seekers irrespective of their original country of origin. The Home office considers that the interests of fairness suggest that claims should be taken, broadly, in order because to accord priority to any one group of claimants inevitably holds up consideration of other claims. There have been exceptions to that general approach which demonstrates that the Home Office is not rigid in its approach. Requests for expedition are sometimes acceded to where there are exceptional compassionate factors, for example if the asylum seeker was seriously ill and there was a need to determine the claim quickly so that, if granted, a spouse would qualify to join the applicant in the United Kingdom. Claims from those held in detention are also given priority. Operational reasons might cause the queuing to be changed. For example, family or linked applications made on different dates might be considered together, as has happened in the case of the applicant Zymberi brothers. Lastly, policy considerations have occasionally led to a departure from the usual approach, for example in respect of Bosnian claims. The Government announced that Bosnians in the United Kingdom would not for the time being be required to return to Bosnia in view of the war. The Home Office still considered each application individually under the 1951 UN Convention and either granted asylum or gave exceptional leave to remain to any Bosnian asylum seekers whose claims for asylum were rejected. Most of these cases could be considered without interviews since the caseworkers rarely had grounds to suspect that applicants were bogus, pretending to be Bosnian, and there was and there were sufficient other information and evidence available on which to reach a decision. While Bosnian applications have been given a measure of priority within the modules handling such claims, this has not been to the exclusion of the consideration of claims from other nationalities for whom those modules have responsibility.

12.It is regrettably the case that a number of economic migrants from Albania itself have posed as refugees from FRY and been found out at the interview stage. Thus, in contrast to the Bosnian example, the Home Office considers that it would in many cases be necessary to interview the applicants claiming to be ethnic Albanians from Kosovo to weed out those who are in fact from Albania. The interviewing process is being hampered by a shortage of suitable qualified interpreters to conduct interviews in Albanian. There have been, and are, other groups who could make out a claim for collective and speedy treatment. There are some countries where, because of conditions there, many applicants are granted asylum or exceptional leave to remain but each claim is considered individually and applications are refused where appropriate."

Mr Herman deals with the appeals procedure and says at paragraph 15:

"The system for determining asylum applications involves an initial decision by the Respondent with a right of appeal to a Special Adjudicator and often beyond. Following a decision by the Respondent, it is not the usual practice to reconsider the matter in the face of fresh representations, unless significant new evidence has been provided. The appeals process is there to determine whether the decision taken by the Respondent is lawful and reasonable in the light of all the evidence presented in support of the claim. The suggestion made by the applicants whose appeals are in the pipeline that all Kosovan refusals should be reconsidered immediately would require caseworkers to devote time to that exercise at the expense of their ordinary duties. The effect would be to delay the primary consideration of other cases, Kosovan and others, which the Respondent does not consider would be fair. However, in the light of recent events the Secretary of State is reviewing the decisions made in respect of Mr Breznica and Mr Hajrizi. He is also looking again at Mr Selmani's application and will do likewise when requested to do so in other individual cases. The time devoted to reviewing past decisions will inevitably have to be balanced against the time given to determining unresolved applications in the queue so that the latter are not unduly further delayed."

He deals with the question of motivation at paragraph 20:

"The applicant's solicitor suggests that the refusal to accede to the requests for expedition ‘would only make sense' if the Respondent hopes that the circumstances in Kosovo improve sufficiently to overtake the decision of the Tribunal (see paragraph 43 of his affidavit). As this affidavit makes plain, that is not so. The Respondent takes the view that these cases should be dealt with in their turn and is not persuaded that the wholly exceptional course proposed by the applicants is appropriate. The Respondent is not alone in taking that view. The appellate authorities have also declined to accelerate the outstanding appeals. The appellants underestimate the time and work necessary to deal with each of these cases and have, I believe, in focusing on the ethnic Albanians from FRY, overlooked the interests of other asylum seekers."

On behalf of the applicants there was sworn an affidavit by Deborah Winterbourne who is a solicitor and a legal officer at the Refugee Legal Centre who had the conduct of the appeal in the Gashi case. Since that case she has reviewed the cases of ethnic Albanians from Kosovo whose cases have been refused and come up for determination before adjudicators and she produces a list of such cases. She points out, referring to her list that:

"In each case the Home Office conceded the appeal just before it was due to be argued. In some cases this was the night before the day of the hearing and in other cases more time has been given. In respect of each case the date the case was due to be heard and the date on which it was conceded is given. As appears from the list, 22 cases have been thus conceded. In the time since the Gashi decision there have been no cases of ethnic Albanian applicants from Kosovo whose cases have been handled by the Refugee Legal Centre and have been refused and proceeded to a full hearing, let alone cases of this kind that have been lost on appeal. Every appeal to an adjudicator requires a lot of preparation. Ethically speaking, the Centre is under a duty to say on behalf of the client what the client should properly say for himself or herself if the client possessed the requisite skill and knowledge. In practice, this means that we take instructions from a Kosovan client on average for 2-3 hours. Each case then has to be prepared on the basis that the individual adjudicator will have to be provided with proof of the general circumstances in the appropriate region (which is currently around 300 pages of documents) as well as material and oral evidence relating to the individual circumstances of the relevant appellant. Further, the caseworker will have to possess an intimate knowledge of all the documentary evidence in order to effectively present the appeal.

8.As things stand a huge amount of work is being put into cases that are conceded practically at the door of the court and all the work put in to these cases is effort that could be more appropriately applied to other non-ethnic Albanian cases.

9.There are about 55 case workers at the Centre, of whom about 43 argue appeals. We are a charity and are funded by government and UNHCR. At the moment, each case worker is expected to prepare and present two new cases a week. We consider that this is as much as can be expected.

10.The caseload is overwhelming and we are barely able to cope with it. As things stand, we consider that the effort being spent on ethnic Albanian cases is a huge allocation of resources in circumstances which strike us as unjustifiable.

11.It is within my knowledge that many other cases not being handled by the Centre are similarly conceded by the Home Office in circumstances similar to our own. I have not heard of any case that has not been successful before an adjudicator and have heard of only two that have been heard and they were both allowed.

12.1 estimate that there are over 400 cases at the Centre in relation to ethnic Albanians from Kosovo being handled by us. The Centre tends to be approached by many asylum applicants because there is no legal aid available for the presentation of appeals at the hearings."

Miss Winterbourne also produces correspondence to the chief adjudicator requesting that appeals of Kosovan Albanians already listed be listed together for determination without hearings in the appellant's favour under rule 35(l)(e) of the 1996 procedural rules, The letter to Judge Pearl dated 16 October 1996 refers to the decision in Gashi:

"As the RLC have a number of appeals of Kosovan Albanians already listed in the appellate authority...

The letter ends by saying:

"Please note that, although the Secretary of State alleges that there have been two changes in Kosovo (i) amnesty for draft evaders and (ii) resumption of education, it is our opinion that neither change invalidates the basis of the decision in Gashi. In any event, it should be stressed that the purported changes have no relevance to the issue of returnability which the Tribunal found to be sufficient ground in itself to allow the appeal. Further, the apparent resumption of education has been challenged by Mr Duijzings (letter attached) who gave expert evidence in Gashi."

The reply from Judge Pearl, the Chief Adjudicator of immigration appeals dated 6 November 1996 states that:

"We discussed your letter as a specific item in a Regional Adjudicators' meeting. Whilst we fully understand the purpose behind your letter we have decided that applying Rule 35(l)(e) of the 1996 Rules would not be appropriate. We believe that each case must remain as listed, and that adjudicators apply their own discretion to any particular application which is made either by the representative or by the Home Office."

Mr Herman deals with Miss Winterbourne's complaints in paragraphs 13 and 14 of his first affidavit in which he says:

13. The Home Office does not dictate the number of appeals to the Special Adjudicators nor does it have control over the rate at which the Adjudicators determine the appeals. I note that a request was made of Judge David Pearl, the Chief Adjudicator, to accelerate all the outstanding ethnic Albanian FRY appeals on precisely the same grounds that the Respondent was asked to consider in relation to outstanding applications. He and his fellow Adjudicators considered the request and rejected it.

14. Complaint is made that the Home Office, as Respondent in appeals to the Special Adjudicator, is conceding Kosovan appeals very shortly before the date listed for hearing. I do not quibble with the list exhibited to the affidavit of Deborah Winterbourne but would make the following observation. Appeals are conducted by presenting officers who are not the same officers as those who make the original decision. The usual procedure in such appeals is that some weeks before the hearing, the Presenting Officers' Unit will make a request for the appellant's file. In the normal course, it would simply be sent off without further consideration. However, in the case of Kosovan cases, the files are being diverted to the case-working module to be reviewed at that stage and a decision taken whether to concede the appeal. The table produced by Miss Winterbourne shows concessions being made from a day or two before the hearing to as much as five months. The potential impact of the Tribunal decision does not appear to have been recognised in many of those cases when the file was first called for. The system should settle down so that if any concession is to be made, it will happen some weeks before the planned hearing. Similarly, the approach to the making of asylum decisions in respect of ethnic Albanian Kosovans has settled down. The rate of decisions made on asylum applications from those claiming a well-founded fear of persecution in Kosovo both before and after the Tribunal determination was roughly the same. There were, for example, 24 decisions taken in June 1996 and 29 in August. There were 41, 28 and 22 decisions in September, October and November respectively. Of the 37 decisions made in December, 35 applicants were granted asylum and two given exceptional leave to remain. In January 1997 there are 73 grants of asylum and two refusals."

Mr Herman gives further figures of a more recent nature in his second affidavit. Those figures appear in paragraph five thereof. I need not include them in this judgment but I should point out that in submissions before me the total figures were broken down into refusals and grants or any other category. it was significant that there was inevitably a large majority of refusals until the month of December 1996 when the effect of the authority plainly changed the position the other way, there being fifty grants and extensions of leave to remain in three other cases out of the grand total of 53 for the month. That trend, will no doubt, on the effect of accepting the decision in Gashi, be extended. In January 1997 there were 72 grants and 2 refusals.

Mr Burnett, for the Secretary of State, accepts that the respondent has refused to agree that in the case of all claiming to be ethnic Albanians from Kosovo, all outstanding applications should be dealt with forthwith and all outstanding appeal cases to the adjudicator should be collected together and conceded en bloc. He submits that the respondent has put in place a system to try to ensure that such an appeal is considered some weeks before the hearing date so that, if a decision to concede is to be made, it is made in the light of circumstances pertaining at the time and early notification is given to the appellant and the adjudicator. Mr Burnett concedes that the system is not as yet operating perfectly but he says that the issue for determination in this case is whether any reasonable Secretary of State considering the decision in Gashi and the representations made by the applicants could have come to that decision. That, of course, is a pure Wednesbury challenge (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223).

Mr Burnett points out that in paragraph 18 of Mr Grant's second affirmation, he appears to raise for the first time an argument that the age of these claims for asylum would itself justify the intervention of the court. He further points out and I accept that that is not how the case was advanced in Form 86A and that the respondent has not met such a case in its evidence.

Mr Burnett accepts that the decision of the Immigration Appeal Tribunal in Gashi is binding on adjudicators but only as to its ratio. The applicants rely upon factual findings made on the evidence adduced by the Tribunal, which findings no doubt would be repeated by adjudicators if called upon to decide the same factual question on the basis of the same evidence. Mr Burnett points out there is no res judicata or issue estoppel in respect of that finding and that an appeal lies from the Immigration Appeal Tribunal only on a point of law. Asylum decisions have to be taken in the light of evidence available at the time of the decision or hearing of an appeal as the case may be.

Mr Burnett relies on Mr Herman's evidence in his first affidavit as to the approach of the respondent in these cases. He stresses that since the Asylum and Immigration Appeals Act 1993, asylum claims have been split into front line and backlog cases with priority to the backlog. There are about 1,200 backlog cases and 1,400 front line cases in respect of Kosovo, which is about 4.5% of the outstanding asylum claims which number some 56,000. To deal with these matters staff members have been increased and productivity has improved. Mr Herman has described the general approach of taking cases in turn within each module, and Mr Burnett submits that the respondent is right to consider that to be fair because to accord priority to any individual or group would hold up consideration of other claims. That approach has not brought inflexibility into the system since it is clear from the evidence that departures or exceptions are made from the norm in four different types of cases, namely where there are exceptional compassionate circumstances, in detention cases, where there are operational circumstances such as family applications, and where policy considerations dictate, for example in respect of Bosnian claims. Mr Burnett submits, and I accept, that by making an exception once, one does not thereby make a subsequent decision not to make an exception an irrational one. Mr Herman's evidence makes it clear that what distinguishes the Bosnian cases from the Kosovan is that there is a history of Albanians trying to pass themselves off as Kosovans. Thus interviews will often be necessary and there is a shortage of Albanian interpreters.

Mr Burnett argues that, while a case could be made for expedition for any asylum seeker who has been waiting for a decision for a long time, and Mr Grant's evidence shows one approach upon that basis, nevertheless there is room for more than one view. He submits that the refusal of the respondent to expedite the Kosovan claims en bloc is another view, that of the Secretary of State, which is clearly equally validly held and which cannot be stigmatised as irrational in a Wednesbury sense.

He submits that the two cases cited by Mr Davies of ex parte Singh and Pratt v AG for Jamaica do not assist in this case. I accept that submission. Singh is the well-known case concerned with the Secretary of State's power to detain before deportation under schedule 3, paragraph 2(3) of the Immigration Act 1971. Pratt is an equally well-known case dealing with a 14-year delay before contemplated execution as constituting inhuman punishment.

Mr Burnett submits, and I accept his submission, that the appeal system is independent of the respondent and points to the fact that the Refugee Legal Centre had asked the Chief Adjudicator to expedite all relevant appeal on the same ground as the respondent was asked to reconsider the claims. He says that the Chief Adjudicator's decision to refuse the request after consultation with the regional adjudicators was a correct one. He submits that the Chief Adjudicator was right to refuse the request and points out that no complaint is made by the applicants in relation to that decision by the Chief Adjudicator. He complains of the lack of logic in the applicants accepting the decision of the Chief Adjudicator but making this complaint against the respondent.

Mr Burnett submits that Mr Herman's evidence indicates the respondent's approach to those applicants who are appealing to the special adjudicator. There has been a change in the system in that all such claims are unusually being diverted back to the decision-making modules for reconsideration in advance of the hearing. The system will therefore be that any concession

should be made in good time. Further, the Secretary of State is reconsidering the claims of Mr Breznica and Mr Hajrizi and is prepared to reconsider other individual cases when requested to do so.

He points out that Mr Grant relies heavily upon hardship caused by the delays in the asylum system. The answer is that such hardship applies to asylum seekers of all nationalities and does not bite in any special way upon the Kosovans. Again, I have sadly to accept that as a valid and realistic submission.

I appreciate all the difficulties and hardship which Mr Grant has so tellingly pointed out which redound to the disadvantage of such applicants as these. I am satisfied however that the respondent has his own good reasons for declining to act in the way formulated by Mr Grant on behalf of the applicants.

I am satisfied that those reasons include all the matters raised by Mr Herman in his affidavits. They include, in particular, the need to ensure factually that an applicant actually is an ethnic Albanian from Kosovo rather than merely an imposter seeking to sail under false colours. They also include the inevitable task of discharging his many duties in a way which does not adversely effect the applications of all those others who are in the pipeline but who are not ethnic Albanians from Kosovo. They thus include the consideration that in the interests of fairness suggests that claims should be taken, broadly, in order, because to accord priority to any one group of claimants inevitably holds up consideration of other claims. They also include the desire to ensure that each case is considered on its individual's needs and the merits, taking account of all of the relevant information including the most up-to-date situation in the Federal Republic of Yugoslavia.

I am perfectly satisfied that, whatever may be the position in the future, the time has clearly not yet come when it could be said that the Secretary of State's decision to refuse to follow the course suggested by Mr Grant was Wednesbury unreasonable. The decision cannot be said, in the words of Lord Diplock in CCSU v Minister for the Civil Service [1985] AC 374 at 410, to be one "which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it".

That is the test that has to be applied before a decision can be said to be Wednesbury unreasonable. The respondent's decision cannot be so described, and accordingly, these applications must fail.

I would add one further observation. I am grateful to Mr Grant for his formidable affidavits and also for the courtesy of writing to the Chief Clerk to the Crown Office on 9 May which letter was received by the Crown Office on 10 May and was placed before me yesterday. Mr Grant's letter was written in order to draw my attention to the fact that on 7 May the respondent wrote to Mr Breznica's solicitors a letter which they received on 9 May informing them that it had been decided "to concede in your above client's asylum appeal and grant him asylum". I had that information only after the judgment was already in draft. I propose to treat the information as being a matter which perhaps could have been argued to be a point thought to be in favour of either side but not a point which could have affected the final outcome. I have therefore elected to treat it as a neutral matter though of course its effect for Mr Breznica will be of some delight. It follows, however, that Mr Breznica's claim must, on the judgment I have given, still fail since of course, quite apart from the other reasons I have given, the relief sought would be academic. Accordingly, as I have indicated these applications must be dismissed.

Applications dismissed

Solicitors: Simons Muirhead and Burton, London, W1; Treasury Solicitor

---

[1]* See now [1997] Imm AR 251.