Hilal Abdul Razzaq Ali Al-jedda v Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Scott Baker,LORD JUSTICE HOOPER |
| Judgment Date | 12 March 2010 |
| Neutral Citation | [2010] EWCA Civ 212,[2008] EWCA Civ 1041 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 2010 |
| Docket Number | Case No: T1/2008/1431,Case No: T1/2009/0898 |
[2008] EWCA Civ 1041
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
(MR JUSTICE MITTING, SENIOR IMMIGRATION JUDGE LANE,
MR JUSTICE MITCHELL)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Scott Baker and
Lord Justice Maurice Kay
Case No: T1/2008/1431
Mr R Hermer (instructed by Public Interest Lawyers) appeared on behalf of the Appellant.
Mr A O'Conner (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
(As Approved By Court)
This case comes before us as an application for permission to appeal a decision of the Special Immigration Appeals Commission. The case, involving Mr Al-Jedda, has quite a history. He is a person of Iraqi origin who came to this country in 1992 and claimed asylum. He was granted refugee status in 1994 and he became a British citizen on 12 June 2000. In October 2004 he was in Iraq and was detained for a significant period by United Kingdom forces in Iraq. That part of the history was the subject of litigation which reached the House of Lords in R (AlJedda) v Secretary of State for Defence (JUSTICE and another intervening) [2007] UKHL 58. Mr Al-Jedda was released from detention in Iraq on 30 December 2007, but he remained in that country, before later moving to Turkey.
In December 2007 the Secretary of State for the Home Department made an order under section 40 of the British Nationality Act 1981 depriving Mr Al-Jedda of his British citizenship on the ground that she was satisfied the deprivation was conducive to the public good. Plainly, if Mr Al-Jedda retains his British citizenship he has a right of return to this country. He appealed against that decision of the Secretary of State, the appeal lying to the Special Immigration Appeals Commission (“SIAC”). By his appeal to SIAC Mr Al-Jedda put forward six grounds of appeal. However, when the matter reached SIAC arrangements were made —they being arrangements in which Mr Al-Jedda was complicit —that a particular point, one of the grounds of appeal, should be determined as a preliminary issue.
It arose in this way: if the consequence of deprivation of British nationality would leave Mr Al-Jedda as a stateless person then the deprivation ought not to have been ordered. It was his case before SIAC that that was precisely the situation. The preliminary issue that was tried by Mitting J and his colleagues was what has become called “the statelessness issue”. However, Mr Al-Jedda lost on that issue in a judgment that was given on 23 May 2008. SIAC was satisfied that Mr Al-Jedda is an Iraqi national and not a stateless person. That resulted in the application for permission to appeal to this court. Permission was refused by SIAC and the application now comes before us. It had not been considered on the papers because I ordered that it be the subject of an oral application specifically on the issue that is now determinative of it.
That issue arises in this way. An appeal from SIAC to this court lies under section 7(1) of the Special Immigration Appeals Commission Act 1997. Section 7(1) reads:
“Where the Special Immigration Appeals Commission has made a final determination of an appeal, any party to the appeal may bring a further appeal to the appropriate appeal court on any question of law material to that determination.”
The point taken by the Secretary of State is that the judgment in SIAC on 23 May was not “a final determination of an appeal”. Directions had been given in SIAC for the hearing of the balance of the appeal being related to the other grounds of appeal to SIAC, which raise various issues of human rights law, EU law and a challenge to the evidential basis of the Secretary of State's decision. As we understand it, the balance of that appeal is listed for hearing in SIAC in January next year. This court is a statutory body which can only hear appeals which are provided for by the governing legislation, in this case section 7(1). What we have to decide is whether, at this point in the proceedings between Mr Al-Jedda and the Secretary of State, there has been a final determination of his appeal so as to provide jurisdiction in this court for the hearing of his appeal.
On behalf of Mr Al-Jedda, Mr Hermer has made succinct submissions today. He submits that section 7 can be read either in the way supported by the Secretary of State or in the contrary way, which would permit jurisdiction to hear an appeal at this stage. He has referred to two authorities: one, Keiko Holmes v Bangladesh Biman Corporation [1988] 2 Lloyd's Reports page 120 was a case in which this court had to consider whether it was appropriate to hear an appeal following the first stage of a split trial or the determination of a preliminary point. However, the context of that case was ungoverned by primary legislation, and indeed the then prevailing rules of the Supreme Court provided very little guidance on the subject. It was an example of this court having to work out a solution in something of a regulatory vacuum. For that reason I find it of no assistance in the present situation.
The second authority is Scribes West Ltd v Relsa Anstalt & Anr [2005] 1 WLR 1839; [2004] EWCA Civ 965. That decision was concerned with the then frequent problem of whether a decision below the level of this court was a “final decision” within the meaning of the Access to Justice Act 1999 Destination of Appeals Order 2000. In the course of his judgment, Brooke LJ referred to the previous provision of Order 59 Rule 1(a) of the Rules of the Supreme Court, which had been introduced in 1993. Once again, the context was specific to the specific regime which had recently been introduced and which directly governed the issue there before the court. In my judgment the present case is totally different. Section 7(1) is a jurisdictional provision. It is the sole basis upon which this court can receive an appeal from SIAC. As I read section 7(1), it is about the final determination “of an appeal”. An appellant to SIAC only has one appeal against the decision of the Secretary of State, albeit it can be advanced on numerous grounds. I, for my part, do not accept Mr Hermer's submission that section 7(1) is susceptible to a reading either in favour of the Secretary of State's contention or the submission on behalf of Mr Al-Jedda. In my judgment the words of section 7(1) are clear and unambiguous. They provide for the possibility of an appeal to this court when (but only when) there has been a final determination of the appeal to SIAC. That stage has not been reached in these proceedings. Mr Hermer is able to point to policy reasons which might favour a different conclusion in the event of ambiguity. He raises the spectre of potential injustice, wasted costs and of the disincentive to have any issue in SIAC dealt with by way of a preliminary issue.
However, the policy issues are not all in one direction. It seems to me that section 7(1) provided for an appeal only after final determination, as I have construed it, because it did not wish the Court of Appeal to become seised of the case until the entire appeal to SIAC had been disposed of one way or the other. Only then would it be known which side ultimately had won and which side ultimately had lost.
As I have said, in my judgment this is not a case of ambiguity, and so the rival policy issues really count for little. It is a case of the clear meaning of words, that meaning being that, at the moment, Mr Al-Jedda has not had a final determination of his appeal to SIAC and so cannot bring a further appeal to this court. Accordingly, considering as I do that that is a clear and inevitable outcome, I would refuse permission to appeal on the basis that such an appeal would have no real prospect of success.
I agree. I think the wording of section 7 is plain. The right of appeal is statutory and Parliament has made it clear that, absent a final determination of an appeal by SIAC, there is no right of further appeal to this court. It does occur to me, since this is being disposed of as a refusal of permission, that ordinarily it would not be appropriate to cite this decision as authority in any further arguments, but that can be got round with the permission of this court and we give that permission.
Order: Application refused
[2010] EWCA Civ 212
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Special Immigration Appeals Commission
Before: Lord Justice Mummery
Lord Justice Maurice Kay
and
Lord Justice Hooper
Case No: T1/2009/0898
Richard Hermer QC and Tom Hickman (instructed by Public Interest Lawyers) for the Appellant
Jonathan Swift and Andrew O'Connor (instructed by Treasury Solicitors) for the Respondent
Hearing date: 3/03/2010
On 14 December 2007 the Secretary of State for the Home Department (“SSHD”) made an order depriving the appellant of his British citizenship.
By virtue of section 40(4) of the British Nationality Act 1981 the SSHD was not entitled to deprive him of his British citizenship if he thereby, on that date, became...
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