LO (Jordan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Rimer |
| Judgment Date | 01 March 2011 |
| Neutral Citation | [2011] EWCA Civ 82,[2011] EWCA Civ 164 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: T2/2010/1717 |
| Date | 01 March 2011 |
[2011] EWCA Civ 164
Before : Lord Justice Maurice Kay (vice President of the Court of Appeal, Civil Division)
and
Lord Justice Rimer
Case No: T2/2010/1717
REF NO: SC732009
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
Mr Edward Grieves (instructed by Messrs Birnberg Peirce) for the Appellant
Mr Neil Sheldon (instructed by Treasury Solicitors) for the Respondent
Hearing date : 15 February 2011
Lord Justice Maurice Kay :
This case is concerned with the jurisdiction of the Court of Appeal in relation to appeals from the Special Immigration Appeals Commission (SIAC) pursuant to section 7 of the Special Immigration Appeals Commission Act 1997. Section 7(1) provides:
"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 appropriate appeal court in England and Wales is the Court of Appeal. Appeals from SIAC to this Court are not uncommon. However, the jurisdiction is limited to the bringing of "a further appeal" when SIAC "has made a final determination of an appeal".
In Al-Jedda v Secretary of State for the Home Department [2008] EWCA Civ 1041 the appellant sought to advance six grounds of appeal before SIAC. One ground, which would have been determinative of the appeal if it had been decided in favour of the appellant, was dealt with by SIAC as a preliminary issue. In the event, it was not resolved in favour of the appellant who was left to pursue the other grounds of appeal at a later date. However, he sought to appeal to this Court pursuant to section 7 in advance of the next stage of the proceedings in SIAC. This Court, comprising Lord Justice Scott Baker and myself, refused permission to appeal on the basis that the Court lacked jurisdiction. I said (at paragraph 7):
"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."
I added (at paragraph 8):
"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 seized of the case until the entire appeal to SIAC had been disposed of one way or the other."
Lord Justice Scott Baker expressed his agreement. Although permission to appeal was refused we directed that the case could be cited as authority in subsequent litigation.
The circumstances of the present case are not precisely the same as those in Al-Jedda. There, the matter proceeded to a further hearing after which the appeal to SIAC was dismissed on all grounds. At that stage, section 7 was undoubtedly engaged. In the present case SIAC resolved one issue against the appellant as a preliminary issue and adjourned the balance of the appeal to a later date. However, the balance of the appeal was never heard because the Secretary of State decided to withdraw the decision to deport LO to Jordan. LO was released from detention and is no longer the subject of a decision to deport. Nevertheless, he seeks permission to appeal to this Court pursuant to section 7 in relation to the adverse decision on the preliminary issue whereby SIAC decided that, on the basis of open and closed material, he posed a risk to national security.
The Procedural History
On 10 March 2009 the Secretary of State decided that it would be conducive to the public good to deport LO to Jordan on national security grounds. On 12 March LO commenced an appeal to SIAC. He disputed that he was a risk to national security and also raised grounds of appeal by reference to Article 8 of the ECHR (he is a married man with seven children) and Article 3 (referring to ill-treatment on return to Jordan). From the outset, the Secretary of State accepted that deportation to Jordan would only be possible if appropriate assurances could be obtained from the Jordanian Government as to LO's treatment on return.
On 30 April 2009 LO applied to SIAC for bail. Following a consideration of open and closed material, the application was refused. SIAC considered that LO posed "very significant" risks to national security and that there was a high risk of his absconding.
The substantive appeal to SIAC was listed to commence on 9 February 2010. However, the Jordanian Government had not yet provided the requisite assurances. SIAC decided that the best course would be to determine the first issue, viz whether LO posed a risk to national security, as a preliminary issue. It anticipated that the obtaining of assurances from Jordan might take some time and that it might become necessary to review LO's bail status. It was considered desirable that any such subsequent review should be based on a thorough and authoritative assessment of the national security evidence rather than on the more summary assessment that had occurred or would occur in the context of a bail application. The hearing of the evidence on the national security issue took place on 9, 10, 22 and 23 February 2010. Judgment was reserved. On 22 February the Secretary of State informed SIAC that the assurances from Jordan had not yet been obtained. SIAC granted the Secretary of State an adjournment to mid/late April. On 4 March SIAC handed down its judgment on the national security issue. As it was adverse to LO, he remained in detention and preparations continued for the determination of the remaining issues at the resumed hearing.
The matter next came back before SIAC on 17 May 2010. The requisite assurances from the Jordanian Government were still not forthcoming. The Secretary of State applied for a further adjournment of four weeks. The application was opposed but SIAC, having heard evidence about the state of negotiations between the British and Jordanian Governments, granted the application and the remainder of the appeal was relisted for 8–9 July 2010. LO made a further application for bail but this was refused on 21 May.
As the finalisation of assurances from the Jordanian Government remained elusive, the Secretary of State decided to withdraw the decision to deport LO. The withdrawal decision was communicated to LO by a letter dated 17 June and LO was released from detention on that day. SIAC was informed of the withdrawal of the decision. On 21 June SIAC formally notified the parties that, in the light of the Secretary of State's decision, there was "no longer an appeal before the Commission". Accordingly, the Article 8 and Article 3 issues were never determined by SIAC.
Further statutory provisions
The procedure governing the withdrawal of an appeal is specifically provided for in Rule 11A of the Special Immigration Appeals Commission (Procedure) Rules. It is in the following terms:
"(1) An appellant may withdraw an appeal –
(a) orally, at a hearing; or
(b) at any time, by filing written notice with the Commission.
(2) An appeal shall be treated as withdrawn if the Secretary of State notifies the Commission that the decision to which the appeal relates has been withdrawn.
(3) If an appeal is withdrawn or treated as withdrawn, the Commission must serve on the parties and on any special advocate a notice that the appeal has been recorded as having been withdrawn."
Accordingly, when the Secretary of State informed SIAC that it had withdrawn the deportation decision against which LO had appealed, his appeal was "treated as withdrawn" pursuant to Rule 11A(2). This was formally recorded pursuant to Rule 11A(3) as related in SIAC's letter to the parties on 21 June 2010.
Subsequent events
LO made an application to SIAC for permission to appeal its national security decision but SIAC refused permission on the basis that, in the circumstances, there had been no "final determination" of the appeal and that, in any event, it had no prospect of success. On 2 June 2010 the Secretary of State wrote to LO's solicitors with notification that LO's existing refugee status was revoked. An application was then made to this Court for permission to appeal but this was refused by Lord Justice Richards on consideration of the papers on 29 October 2010. His refusal was on the basis that this Court lacks jurisdiction but he was also unimpressed by the proposed grounds of appeal. LO then renewed his application for permission and the oral hearing was listed first before me on 19 January 2011. I gave a short judgment [2011] EWCA Civ 82 adjourning the application to be heard by two Lord Justices and on notice to the Secretary of State.
Discussion
On behalf of LO Mr Edward Grieves refers to disadvantages accruing to a person in the position of LO if he has no recourse to this Court to challenge the adverse decision on the national security issue. It has already been used to his detriment in the revocation of his refugee status. Moreover, it is not unlikely that the Secretary of State will continue to seek assurances from the Jordanian Government and, if she is successful in obtaining them, she may serve a fresh notice of deportation. On LO's further appeal to...
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