R (Ignaoua) v Secretary of State for the Home Department [QBD]
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 09 August 2013 |
| Neutral Citation | [2013] EWHC 2512 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 August 2013 |
| Docket Number | Case Nos: CO/9832/2013, CO/11280/2010 |
[2013] EWHC 2512 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cranston
Case Nos: CO/9832/2013, CO/11280/2010
Stephanie Harrison QC and Amanda Weston (instructed by Birnberg Peirce and Partners) for the Claimant
Rory Phillips QC and Julian Blake (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 18 July and 1 August 2013
Approved Judgment
Introduction
This claim concerns a certificate issued by the Secretary of State for the Home Department ("the Secretary of State") on 16 July 2013 under a power conferred by the Justice and Security Act 2013. The Secretary of State contends that the certificate has the effect of terminating the judicial review the claimant has had ongoing in this court since 2010, challenging his exclusion from the United Kingdom on national security grounds. On her case there can be no objection to this since the claimant can immediately issue proceedings in the Special Immigration Appeals Commission ("SIAC"), which has all the powers of this court to conduct a judicial review of his exclusion.
The claimant submits that there is no instance previously where there has been a power to terminate existing proceedings for judicial review. In his submission the certificate did not in fact terminate the judicial review. That would be to oust the inherent jurisdiction of the High Court to regulate its own proceedings. What is necessary is for this court to decide that the certificate is lawfully made and not an abuse of process before it can take effect. The claimant points to the fact that as yet there are no procedure rules to conduct this type of proceeding in SIAC. In particular SIAC has no power to hold a closed evidence procedure without the rules. The statutory provisions, says the claimant, cannot be read to enable the Secretary of State to issue a certificate when there are no such rules. So on the claimant's case any proceedings he lodges in SIAC cannot, in practice, continue and will not be able to do so for some considerable time. Compatibly with articles 8 and 13 of the European Convention on Human Rights ("the ECHR" or "the Convention") the claimant must be provided with an effective remedy.
It will be evident that the issues in this case are therefore issues of law as to this court's jurisdiction. The claimant has raised a separate matter of whether the Secretary of State's exercise of discretion to issue the certificate in this case is an abuse of her power, an abuse of the processes of the court, or is otherwise unlawful. In particular it is asserted that, if successful, the Secretary of State's decision to certify means that she has avoided judicial scrutiny of the public interest immunity ("PII") grounds she has claimed for withholding the material basis for the exclusion decision which the claimant has been challenging in his judicial review in this court. It is also said that the Secretary of State has denied the claimant the benefit of the balancing exercise in assessing whether the PII claim should be upheld. However, this separate matter of the lawfulness of the Secretary of State's decision to certify in this case is the subject of new judicial review which the claimant has recently lodged with this court. I need say no more about it in this judgment.
Background
The claimant was born in December 1960 and is a Tunisian national. He arrived in the United Kingdom in early 2004 but was extradited to Italy in 2008 since when he has not been able to return to the United Kingdom for reasons which will become apparent. Members of his family are in the United Kingdom, including his wife, a British citizen, and a son by a previous marriage, also a British citizen. After he arrived here in 2004 he claimed asylum. There was an interview for his asylum claim. Despite letters from his solicitors the Secretary of State failed to make a decision on his application.
Then on 4 June 2007 a judge in the Court in Milan issued a European Arrest Warrant alleging that the claimant, when living in that city, had recruited North Africans to travel to Afghanistan for military training and had used forged currency to fund this activity. There had been a counter-terror operation by Italian police which had drawn in a large number of Tunisian expatriates. The claimant was alleged to be a member of an organisation for the purposes of terrorism. Within a few days the claimant had been arrested in this country under the warrant. There were warrants for the arrest of two other Tunisian nationals, Mohamed Salah Ben Hamadi Khemiri and Ali Ben Zidane Chehidi. An extradition hearing took place before District Judge Evans at the City of Westminster Magistrates Court on 20 May 2008, who ordered extradition of all three Tunisians. An appeal to the Divisional Court (Pill LJ and Rafferty J) was dismissed: [2008] EWHC 1988. The court decided that, on the return of the applicants to Italy, there was no real risk of their onward transmission to Tunisia in breach of Article 3 of the European Convention on Human Rights ("the ECHR" or "the Convention"). An application to the court for a certificate on a point of law of general public importance was dismissed on 30 September 2008.
There had been an application to the European Court of Human Rights under rule 39 of the Rules of Court for an order preventing the extradition of the claimant and the other two to Italy. The ground was that, if extradited, there would be a real risk of onward removal to Tunisia where they would be subjected to treatment contrary to Article 3 of the ECHR. The Serious Organised Crime Agency undertook not to return the applicants to Italy pending the determination of that application. The Strasbourg Court refused the application on 7 October 2008 on the understanding "… that Italy as a Contracting State would abide by its obligations under Articles 3, 13 and 34 of the Convention". Just before midnight on 7 October 2008 King J granted an ex parte without notice injunction preventing the applicants' extradition until determination of habeas corpus applications. These came before a Divisional Court (Keene LJ and Owen J) which on 30 October refused the applications. The court held that a habeas corpus application was not to be used to overturn the extradition order and that the fresh evidence did not meet the requirements for a re-opening of the Divisional Court's previous decision: [2008] EWHC 2619 (Admin).
The claimant and the two other Tunisian nationals were thus extradited to Italy in late 2008. Over two years later, on 8 July 2010, the Italian court acquitted the claimant of the charges for which he had been extradited. On 9 and 21 July 2010 the European Court of Human Right issued Rule 39 interim relief so that the Italian authorities would not deport him to Tunisia. On 8 October 2010 the claimant made an asylum claim in Italy. The following month the Italian authorities requested the Secretary of State to take the claimant back under Article 16 of the Dublin Regulation. Just over a week later, on 30 November 2011, the Secretary of State declined to do this. She explained that in her view the Dublin Regulation did not apply: she had never reached a decision on his asylum claim, and in any event the claimant was in Italy at the request of the Italian authorities. Subsequently, the Italian authorities accepted that they had the responsibility for his asylum claim.
Meanwhile, on 29 July 2010, the Secretary of State had informed the claimant that he had been excluded from the United Kingdom, with no right of appeal, on the ground that his presence in the country would not be conducive to the public good for reasons of national security. The Secretary of State had assessed him as being involved in facilitation and radicalisation activities for terrorist purposes. The claimant's solicitors wrote that under the Dublin Regulation the United Kingdom was the Member State with the responsibility for determining his asylum claim. The Secretary of State responded that in her view the asylum application had lapsed when he was extradited.
The application for judicial review before me was lodged on 28 October 2010, challenging the decision to exclude. The Secretary of State lodged her Acknowledgment of Service on 18 February 2011. On 25 March 2012 Collins J gave directions and made observations. As a result the Treasury Solicitor provided the court with two documents. The first was a copy of the Secretary of State's refusal of the Italian request under the Dublin Regulation and the second, a copy of the letter sent to the claimant's solicitors on 31 March 2011 confirming her decision to exclude him from the United Kingdom. The case was listed for hearing before Collins J on 6 April 2011. At the end of the hearing counsel were requested to agree a form of order. Unfortunately that was not possible and the case was again listed before Collins J, for mention, on 12 July 2011. In the result Collins J confirmed the grant of permission to apply for judicial review; the claimant was ordered to serve amended grounds of claim within 14 days; and the Secretary of State was required to file and serve detailed grounds in response within 35 days. The parties complied with those directions. Essentially the claimant challenged the Secretary of State's decision to exclude him from the United Kingdom on grounds of national security; her failure to determine his asylum...
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MM (unfairness; E & R) Sudan
...the basis that the problem does not arise because of any failure by the Tribunal itself. By way of illustration, in R (Ignaoua) v SSHD [2013] EWHC 2512, at paragraph 26, Cranston J said this: “[26] The third strand of principle is that statutory power, although expressed in general terms, s......
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R (Ignaoua) v Secretary of State for the Home Department
...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. 5 The primary focus of the submissions of Ms Stephanie Harrison QC at the hearing of the appeal was......
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