R (Ignaoua) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Sullivan,The Master of the Rolls |
| Judgment Date | 21 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1498 |
| Docket Number | Case No: T3/2013/2636 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 November 2013 |
[2013] EWCA Civ 1498
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Cranston
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of The Rolls
Lord Justice Richards
and
Lord Justice Sullivan
Case No: T3/2013/2636
Stephanie Harrison QC and Amanda Weston (instructed by Birnberg Peirce and Partners) for the Appellant
Rory Phillips QC and Julian Blake (instructed by The Treasury Solicitor) for the Respondent
Approved Judgment
Hearing date: 11 November 2013
The appellant is the subject of a direction by the Secretary of State of the Home Department excluding him from the United Kingdom on the ground that his presence here would not be conducive to the public good for reasons of national security. He was informed of that direction in July 2010 (a decision to maintain the exclusion was made in March 2011). There was no right of appeal. In October 2010 he brought proceedings against the Secretary of State for judicial review of the direction. Those proceedings were held up by problems arising out of the Secretary of State's reliance on closed evidence. There were still outstanding issues of disclosure when, on 16 July 2013, the Secretary of State certified the direction under section 2C of the Special Immigration Appeals Commission Act 1997 ("the 1997 Act"), as inserted by section 15 of the Justice and Security Act 2013 Act ("the 2013 Act"), which came into force on 25 June 2013.
The certificate opened the way for an application to the Special Immigration Appeals Commission ("SIAC") to challenge the direction, though the procedural rules required for such an application to be progressed within SIAC did not exist at the date of the certificate and are still not in force.
At the same time, by virtue of article 4(3) of the Justice and Security Act 2013 (Commencement, Transitional and Saving Provisions) Order 2013 ("the 2013 Order"), the purported effect of the certificate was to terminate the existing judicial review proceedings.
The appellant wanted to press ahead with the judicial review proceedings. He challenged the lawfulness and effect of the certificate both within the context of those judicial review proceedings and by way of a separate application for judicial review of the certificate. The separate application in respect of the certificate remains on hold. The issues otherwise raised by the appellant came before Cranston J, who held that the intention of Parliament was that, if an exclusion direction is certified by the Secretary of State, a challenge to it must be advanced in SIAC, and existing judicial review proceedings are terminated without any court order or residual jurisdiction in the court: see his judgment at [2013] EWHC 2512 (Admin). The judge granted permission to appeal.
The primary focus of the submissions of Ms Stephanie Harrison QC at the hearing of the appeal was on issues concerning ouster of the court's supervisory jurisdiction and the court's inherent jurisdiction to regulate its own procedures. But Mr Rory Phillips QC for the Secretary of State accepted that, leaving aside the court's undoubted jurisdiction to determine the separate challenge to the lawfulness of the certificate, the court has inherent jurisdiction to consider, in the context of the judicial review proceedings relating to the exclusion direction, whether the Secretary of State had the power under the statute to terminate the proceedings by the issue of a certificate. That concession greatly simplifies matters.
In the event, the central issue in the appeal is whether the Secretary of State's certificate was effective to terminate the judicial review proceedings relating to the exclusion direction.
The facts
The full factual background is set out in Cranston J's judgment and is not repeated here.
In the judicial review proceedings relating to the exclusion direction the Secretary of State had made a public interest immunity ("PII") certificate resisting, on various public interest grounds, disclosure of material relevant to the challenge. A PII hearing listed for 20 May 2013 was adjourned by agreement between the Secretary of State and the special advocate appointed to act in relation to the PII issue. The hearing was re-fixed for 18 July. The Secretary of State then applied for a further adjournment of the hearing, on the ground that the new section 2C of the 1997 Act had come into force on 25 June and the Secretary of State had decided in principle to certify the exclusion direction, so that the appellant would be able to bring a challenge to it in SIAC. The appellant resisted an adjournment, arguing that there was no justification for further delay, there was in truth no substantive case against the appellant, and the interests of justice plainly favoured proceeding with the PII hearing. On 16 July, Ouseley J refused the application for an adjournment. On the same day the Home Office wrote to inform the appellant that the Secretary of State had certified the exclusion direction and that the certificate had the effect of terminating the judicial review proceedings. A letter to similar effect was sent by the Treasury Solicitor to the court on 17 July.
The result of this was that the hearing fixed for 18 July was adjourned to 1 August and converted into an inter partes hearing to consider the appellant's arguments concerning the lawfulness and effect of the certificate. A separate judicial review challenge to the certificate was lodged on 25 July. On 1 August, because of the limited time available on that day, Cranston J ruled that the hearing before him should be confined to "the issue of law as to the power to certify" and that the challenge to the exercise of the discretion to certify should be deferred to the hearing of the separate judicial review challenge to the certificate.
There was, however, some overlap between the matters considered by Cranston J and those that might be thought to fall more appropriately within the separate judicial review challenge. In particular, consideration was given to the implications of the fact that the necessary SIAC procedural rules for proceedings under the new section 2C of the 1997 Act had not been put in place and were not immediately in prospect at the time when the certificate was made: until such rules were in force, there could be no closed material procedure in proceedings under section 2C. The Treasury Solicitor's letter of 17 July to the court stated that the rules were likely to come into force "as soon as possible after the summer recess". At the time of the hearing before Cranston J, it was expected that the rules would be finalised before the end of October. By the hearing before us the draft rules had been laid before Parliament and were expected to be in force by the end of November or in early December if they received affirmative approval.
Following the adverse decision by Cranston J the appellant did make an application under section 2C to SIAC on a protective basis. A directions hearing was held in early October at which the Secretary of State undertook to serve in the SIAC proceedings the evidence already served in the judicial review proceedings, but little more could be done until the relevant rules came into force.
Part of the appellant's complaint about the certificate was that its effect in these circumstances was to leave him in a state of legal limbo, unable to pursue the judicial review proceedings yet without an effective alternative in the form of an application to SIAC.
The legislation
Section 2C of the 1997 Act, as inserted by section 15 of the 2013 Act, reads as follows:
"2C(1) Subsection (2) applies in relation to any direction about the exclusion of a non-EEA national from the United Kingdom which -
(a) is made by the Secretary of State wholly or partly on the ground that the exclusion from the United Kingdom of the non-EEA national is conducive to the public good,
(b) is not subject to a right of appeal, and
(c) is certified by the Secretary of State as a direction that was made wholly or partly in reliance on information which, in the opinion of the Secretary of State, should not be made public —
(i) in the interests of national security,
(ii) in the interests of the relationship between the United Kingdom and another country, or
(iii) otherwise in the public interest.
(2) The non-EEA national to whom the direction relates may apply to the Special Immigration Appeals Commission to set aside the direction.
(3) In determining whether the direction should be set aside, the Commission must apply the principles which would be applied in judicial review proceedings.
(4) If the Commission decides that the direction should be set aside, it may make any such order, or give any such relief, as may be made or given in judicial review proceedings …."
Section 19 concerns consequential and transitional provision:
"19(1) Schedules 2 and 3 (which make consequential and transitional provision) shall have effect.
(2) The Secretary of State may by order made by statutory instrument make such transitional, transitory or saving provision as the Secretary of State considers appropriate in connection with the coming into force of any provision of this Act."
Further detail concerning transitional provision is contained in Schedule 3, in particular in paragraph 4 of that schedule:
"4(1) An order under section 19(2) may, in particular, make provision about...
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