R R Cart (First Claimant) U (Second Claimant) XC (Third Claimant) The Upper Tribunal (First Defendant) Special Immigration Appeals Commission (Second Defendant) The Secretary of State for Justice (First Interested Party) The Secretary of State for the Home Department (Second Interested Party) Child Maintenance & Enforcement Commission (Third Interested Party) Mrs Wendy Cart (Fourth Interested Party) The Public Law Project (Intervener)

JurisdictionEngland & Wales
JudgeLord Justice Laws,U,Mr Justice Owen
Judgment Date01 December 2009
Neutral Citation[2009] EWHC 3052 (Admin)
Docket NumberCase Nos CO/2336/2009, CO4659/2009 & CO/5705/2009
CourtQueen's Bench Division (Administrative Court)
Date01 December 2009
Between:
The Queen on the Application of Rex Cart
First Claimant
and
U
Second Claimant
and
XC
Third Claimant
and
The Upper Tribunnal
First Defendant
Special Immigration Appeals Commission
Second Defendant
The Secretary of State for Justice
First Interested Party
The Secretary of State for the Home Department
Second Interested Party
Child Maintenance & Enforcement Commission
Third Interested Party
Mrs Wendy Cart
Fourth Interested Party
The Public Law Project
Intervener

[2009] EWHC 3052

Before: lord Justice Laws

Mr Justice Owen

Case Nos CO/2336/2009, CO4659/2009 & CO/5705/2009

IN THE HIGH COURT OF JUSTICE

DIVISIONAL COURT

QUEEN'S BENCH DIVISION

Mr Richard Drabble QC and Mr Charles Banner (instructed by David Burrows)for the 1 st Claimant

Ms Dinah Rose QC and Ms Charlotte Kilroy (instructed by Birnberg Peirce & Partners) for the 2 nd Claimant

Mr Michael Fordham QC and Ms Stephanie Harrison (instructed by Birnberg Peirce & Partners) for the 3 rd Claimant

Mr James Eadie QC and Mr Sam Grodzinski (instructed by The Treasury Solicitor and The Office of the Solicitor) for the 1 st Defendant and 1 st & 2 nd Interested Parties

Mr Robin Tam QC and Mr Jonathan Glasson (instructed by Treasury Solicitors) for the 1 st and 2 nd Interested Parties)

Mr Michael Fordham QC and Mr Tim Buley (instructed by The Public Law Project )for the Intervener

Hearing dates: 21, 22 September & 13 October 2009

Lord Justice Laws

Lord Justice Laws:

I: INTRODUCTION

1

The principal question in these linked cases is whether the supervisory jurisdiction of the High Court, exercisable by way of judicial review, extends to such decisions of the Special Immigration Appeals Commission (SIAC) and the Upper Tribunal (UT) as are not amenable to any form of appeal. The relevant decisions of SIAC are the revocation of bail which had earlier been granted to the claimant U and the refusal of bail to the claimant XC. The decision of the UT which is in issue is the UT's refusal of permission to appeal to itself, on a particular ground, against a decision of the First-tier Tribunal (FTT) relating to child maintenance payable by the claimant Mr Cart.

2

S.1(3) of the Special Immigration Appeals Commission Act 1997 (SIACA) provides:

“[SIAC] shall be a superior court of record.”

S.3(5) of the Tribunals, Courts and Enforcement Act 2007 (TCEA) provides:

“[UT] is to be a superior court of record.”

3

The claimants seek to challenge the legal merits of the impugned decisions by way of judicial review. The Secretary of State for the Home Department, the Secretary of State for Justice, and the Child Maintenance and Enforcement Commission (to whom I will refer collectively as the defendants, although in fact they are named in the proceedings as Interested Parties) respectively contend that by force of the provisions I have just set out SIAC and UT are immune from judicial review. They submit in the alternative that the judicial review jurisdiction is only exercisable vis-à-vis SIAC and UT in rare and exceptional cases, which do not include those before the court. These questions as to the reach of the High Court's jurisdiction have been directed to be heard together as a preliminary issue in all three judicial review claims. I will refer to them compendiously as “the jurisdiction issue”. I should add that the claimants are generally supported by Mr Fordham QC for the Public Law Project, which intervened in the proceedings with my permission.

4

There is a separate question arising only in the cases of U and XC, the SIAC claimants. It is whether the decisions by SIAC to revoke bail (U) and to refuse bail (XC) violated the claimants' rights guaranteed by Article 5(4) of the European Convention on Human Rights (ECHR), on the ground that they were taken solely in reliance on closed material the gist of which had not been disclosed to the claimants. I will call this “the Article 5(4) issue”. It only arises if U and XC are successful on the jurisdiction issue.

II: THE STATUTES

The Special Immigration Appeals Commission Act 1997

5

SIACA was amended by the Anti-Terrorism Crime and Security Act 2001 (the 2001 Act), and as I shall show some of the amendments are important for the purposes of this case. As originally enacted SIACA s.1 provided:

“(1) There shall be a commission, known as the Special Immigration Appeals Commission, for the purpose of exercising the jurisdiction conferred by this Act.

(2) Schedule 1 to this Act shall have effect in relation to the Commission.”

Schedule 1 contains these provisions:

“5 The Commission shall be deemed to be duly constituted if it consists of three members of whom—

(a) at least one holds or has held high judicial office (within the meaning of the Appellate Jurisdiction Act 1876), and

(b) at least one is or has been—

(i) appointed as chief adjudicator under paragraph 1 of Schedule 5 to the Immigration Act 1971, or

(ii) a member of the Immigration Appeal Tribunal qualified as mentioned in paragraph 7 of that Schedule.

6 The chairman or, in his absence, such other member of the Commission as he may nominate, shall preside at sittings of the Commission and report its decisions.”

6

S.2 defines SIAC's jurisdiction. S.2(1) and (2) confer rights of appeal to SIAC in a series of defined circumstances. It is unnecessary to set them all out, but the general effect of s.2(1) in particular is of the first importance. It re-routes the right of appeal from the Asylum and Immigration Tribunal (AIT) to SIAC in cases where the appellant's departure from the United Kingdom is deemed by the Secretary of State to be conducive to the public good. Thus in very many instances – appeals against refusal of leave to enter, or against variation of limited leave or any refusal to vary it, or against a decision to make a deportation order are prime examples – the jurisdiction of the AIT and SIAC is identical, save that the appellant is a suspected terrorist. The orders which SIAC may make on appeal are articulated in the same language as that originally used in s.19 of the Immigration Act 1971 dealing with appeals to the Adjudicator. Thus SIACA s.4(1) provides:

“(1) The Special Immigration Appeals Commission on an appeal to it under this Act—

(a) shall allow the appeal if it considers—

(i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or

(ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently, and

(b) in any other case, shall dismiss the appeal.”

The process of a SIAC appeal, however, was and is very distinct. Rules of procedure facilitate the scrutiny of confidential material on an appellant's behalf by a special advocate, even though for security reasons the material cannot be disclosed to the appellant himself. This signal feature is the substantial justification for the establishment of SIAC and for its jurisdiction in security cases to hear appeals whose analogues in non-security cases are routinely heard by the AIT.

7

SIAC's bail jurisdiction, given by SIACA s.3, applies the bail provisions of Schedule 2 to the Immigration Act 1971 (the 1971 Act) to a person to whom SIACA s.3(2) applies, that is (in summary) a person detained on national security grounds. S.3 thus transfers to SIAC the power given by Schedule 2 paragraph 22(1) of the 1971 Act to admit to bail a person detained pending examination of his case and his potential removal. It also transfers the further power conferred by paragraph 24(3), so that in the case of a person arrested on suspicion (on reasonable grounds) of having broken or being likely to break the conditions of his bail, SIAC –

“(a) if of the opinion that that person has broken or is likely to break any condition on which he was released, may either -

(i) direct that he be detained under the authority of the person by whom he was arrested ; or

(ii) release him, on his original recognizance or on a new recognizance, with or without sureties…; and

(b) if not of that opinion, shall release him on his original recognizance or bail.”

SIAC's Procedure Rules (paragraph 5) allow for applications relating to bail to be heard by a single member, who must be legally qualified but need not be a serving or retired High Court Judge.

8

Some alterations were made to SIAC's appeal jurisdiction by amendments introduced by the 2001 Act. I need not take time with those. However the amendments also included the insertion of s.1( 3). S.35 of the 2001 Act amended SIACA s.1 so as to include these new subsections:

“(3) The Commission shall be a superior court of record.

(4) A decision of the Commission shall be questioned in legal proceedings only in accordance with—

(a) section 7, or

(b) section 30(5)(a) of the Anti-terrorism, Crime and Security Act 2001 (derogation).”

S.30(5)(a) concerned derogations by the United Kingdom from ECHR Article 5(1). SIACA s.7 provides in part:

“(1) 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.

(2) An appeal under this section may be brought only with the leave of the Commission or, if such leave is refused, with the leave of the appropriate appeal court.

(3) In this section 'the appropriate appeal court' means—

(a) in relation to a determination made by the Commission in England and Wales, the Court of Appeal…”

It is common ground that a decision of SIAC to...

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