Case 1: Ignaoua Case 2: HN Case 3: AA v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley,Mr Justice Irwin |
| Judgment Date | 08 May 2014 |
| Neutral Citation | [2014] EWHC 1382 (Admin) |
| Date | 08 May 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case Nos: Case 1: CO/11280/2010 Case 3: CO/666/2012 |
[2014] EWHC 1382 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Mr Justice Irwin
Case Nos: Case 1: CO/11280/2010
Case 2: CO/8380/2013 &
Case 3: CO/666/2012
THE QUEEN on the application of:
Stephanie Harrison QC and Amanda Weston (instructed by Birnberg Peirce & Partners) for the Claimant, Case 1
Sonali Naik (instructed by Birnberg Peirce & Partners) for the Claimant, Case 2
Amanda Weston (instructed by Birnberg Peirce & Partners) for the Claimant, Case 3
Rory Phillips QC & Julian Blake (instructed by The Treasury Solicitor) for the Defendant
Stephen Cragg QC, Special Advocate (instructed by Special Advocates' Support Office)
Hearing dates: 21st March 2013
The three applications before us require decisions as to how the claims are to proceed in the light of s6 of the Justice and Security Act 2013, which permits Closed Material Procedures, CMP, to be ordered in civil claims including judicial review, and s15 of that Act, which amended the Special Immigration Appeals Commission Act 1997, introducing into it s2C and s2D, which enable the Secretary of State for the Home Department (SSHD) to certify exclusion and citizenship decisions. Such a certificate enables the recipient of the adverse decision to apply to the Commission, SIAC, to have it set aside. SIAC Rules provide for a form of CMP.
Ignaoua — is a Tunisian national who claimed asylum in the UK in 2004, but was extradited to Italy to face trial on terrorist related charges in 2008 before a decision was made on that claim. He was acquitted in 2010. The SSHD excluded him from the UK in October 2010, on the grounds that his return would not be conducive to the public good for reasons of national security. It was alleged that he was involved in facilitation and radicalisation activities for terrorist purposes. The SSHD refused to accept responsibility for determining his claim under Dublin II, and the Italian Government did not respond to that refusal. He brought judicial review proceedings in 2010 challenging the lawfulness of the exclusion decision, the failure to determine his asylum application and to readmit him, and the refusal to accept responsibility under Dublin II.
The question of how the material relied on by the SSHD might be considered, the disclosure of which it was said would breach national security or perhaps some other protected interest, led to a number of delays and hearings while Al Rawi v Security Service [2011] 3 UKSC 34; [2012] 1 AC 531 was resolved, and then its successor decision in AHK and Others v SSHD [2012] EWHC 1117 (Admin).
In those latter four cases concerning the refusals of naturalisation for want of good character, the basis for which was wholly or largely undisclosed but usually included national security reasons, I held that, in the absence of statutory provision, there could be no CMP in judicial review, save to the extent inherent in the PII process, and that, in the absence of the full information upon which the SSHD relied in taking the decision, the Claimant would be bound to fail in showing that her decision was irrational or ignored material considerations. I held that the cases should proceed through the PII process. I affirmed that conclusion after the PII process and yet further argument, in AHK and Others v SSHD [2013] EWHC 14526 (Admin), in June 2013, shortly before the Justice and Security Bill was enacted.
I granted permission to appeal to the Court of Appeal. On 21 February 2014, Richards LJ stayed the appeals pending pursuit by the appellants of the alternative route which the 2013 Act had opened for them of making applications to SIAC, [2104] EWCA Civ 151; see especially paragraphs 37–38. He recognised that his decision would be relevant to other cases in the Administrative court raising similar issues, including specifically that of Ignaoua, paragraph 39, a case with which he was already familiar.
To return to what happened in Ignaoua's own case, an adjourned PII hearing was listed for 18 July 2013; I refused the SSHD's application for its adjournment since the case needed to make progress, but the SSHD issued a certificate under s2C of the 1997 SIAC Act, as amended by s15 of the 2013 Act. This enabled her, she thought, to terminate the Administrative Court proceedings, leaving Ignaoua to pursue his new remedy in SIAC. The PII hearing was adjourned so that the lawfulness of the certificate, to the extent it was said to have that effect, could be challenged. Cranston J upheld its validity; Ignaoua v SSHD [2013] EWHC 2512 (Admin), but the Court of Appeal held that the transitional provisions in paragraph 4 of Schedule 3 to the 2013 Act did not permit the SSHD to make an Order which gave to the certificate which the SSHD was empowered to issue, the effect of terminating judicial review proceedings; [2013] EWCA Civ 1498; now also reported at [2014] 1 WLR 651. Richards LJ with whom Lord Dyson MR and Sullivan LJ agreed. The certificate otherwise remains in force. In effect that challenge is at an end, as was confirmed at an earlier directions hearing on 17 December 2013, an Order to Irwin J dated 24 January 2014 and was reconfirmed before us.
The upshot is that it is now for this Court to decide whether to stay the judicial review proceedings, as the SSHD contends should happen, which would mean that the SIAC remedy would be pursued, or to allow the judicial review proceedings to continue. Mr Phillips QC for the SSHD submitted that it was all but inevitable that this latter course would lead to the invocation of the CMP in s6 of the 2013 Act. Ms Harrison contended that, even if that might be so, nothing should be done, for specific and general reasons, to interfere with the previously intended progress of this case, now long delayed, through the PII procedure, for which all was in readiness and had been since 16 July 2013. It was only after the effectiveness of that had been ascertained that the Claimant should be required to consider whether to accept the SIAC remedy or the s6 CMP, if that had become the regrettably necessary alternative.
HN is a Colombian national whose application for naturalisation was refused on the grounds that the SSHD was not satisfied that he was of good character, because of his alleged membership of the Revolutionary Armed Forces of Colombia, FARC. He commenced judicial review proceedings in July 2013. He refused to agree to a stay of proceedings at least until after the PII process had been concluded in his case. Permission has not yet been granted; it was adjourned to allow consideration of a stay in the expectation that the case would be certified by the SSHD. The SSHD certified the case pursuant to s2D on 17 March 2014. Ms Naik, who appeared for him, adopted Ms Harrison's submissions but was also concerned, on behalf of her privately funded client, about possible differences, in the availability of costs orders in favour of a successful claimant, between SIAC proceedings and judicial review proceedings in the High Court. She was also concerned to limit her client's liability to pay costs were he to fail, through a Protected Costs Order.
AA is an Algerian national who arrived in the UK in 1995, and was granted ILR as a refugee in 2004 on appeal. His naturalisation was refused in 2011 on the basis of a want of good character, but no reasons were given, not even that it was because of national security. In 2003, he had been arrested but was not charged in relation to the "ricin" plot. He was sentenced to 3 months imprisonment for possessing a false passport. His judicial review proceedings, lodged in January 2012, were stayed behind the lead cases of AHK and Others v SSHD. No further material has been served. On 17 March 2014, the decision was certified under s2D of the SIAC Act. AA, who suffers from paranoid schizophrenia, has concluded that it is unlikely that he would benefit from a PII hearing. He supports the submissions made by Ms Harrison, but in his own case, he has accepted that his application for a review should proceed in SIAC. There is nothing more to be said about that case.
The statutory and legal framework
I have described above briefly the somewhat bleak consequences for Claimants of the absence of a CMP in this type of case, if the decision reached in AHK and Others is correct; they are explained and summarised in paragraphs 5–13 of my 2013 judgment. S6, and following, of the Justice and Security Act 2013 provide a solution for such cases which are tried within the High Court.
S6 provides:
"(1) The court seised of relevant civil proceedings may make a declaration that the proceedings are proceedings in which a closed material application may be made to the court.
(2) The court may make such a declaration—
(a) on the application of—
(i) the Secretary of State (whether or not the Secretary of State is a party to the proceedings), or
(ii) any party to the proceedings, or
(b) of its own motion.
(3) The court may make such a declaration if it considers that the following two conditions are met.
(4) The first condition is that—
(a) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or
(b) a party to the proceedings would be required to make such a disclosure were it not for one or more of the following—
(i) the possibility...
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The Secretary of State for the Home Department v The Special Immigration Appeals Commission AHK, as, FM, AM, SN/MA, and Habib Ignaoua (Interested Parties)
...J agreed) when it was observed that "all relevant material would be disclosed to the Special Advocate and to the Commission": see [2014] EWHC 1382 (Admin) at [32]. Ouseley J went on (at [46]) that the closed material procedure was intended to be: "part of a process which enables issues whi......