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)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,U,Mr Justice Owen |
| Judgment Date | 01 December 2009 |
| Neutral Citation | [2009] EWHC 3052 (Admin) |
| Docket Number | Case Nos CO/2336/2009, CO4659/2009 & CO/5705/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 December 2009 |
[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:
I: INTRODUCTION
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.
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.”
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.
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
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.”
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.
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.
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...
To continue reading
Request your trial
-
R Rob Evans v HM Attorney General The Information Commissioner (Interested Party)
...law, we were referred to passages from the judgment of Laws LJ in the Divisional Court in R (Cart) v Upper Tribunal [2011] QB 120; [2009] EWHC 3052 (Admin): passages not in any way affected by the later decision of the Supreme Court in the case. Laws LJ trenchantly stated (in paragraph 36 ......
-
Eba v Advocate General for Scotland [Sup Ct]
...review jurisdiction from the Upper Tribunal, whatever the historic scope of the expression "superior court of record" might be: [2009] EWHC 3052 (Admin), [2011] QB 120, paras 31-32. This was because the supervisory jurisdiction can only be ousted by the most clear and explicit words: R v M......
-
Hunte and Khan v The State (Trinidad and Tobago)
...as a "superior court of record" may be significant in different senses: see the judgment of Laws LJ in R (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin), [2011] QB 120. (When the case reached the Supreme Court, Laws LJ's judgment was described by Lady Hale as "typically subtle and erudit......
-
R (on the Application of Cart) v Upper Tribunal [Sup Ct]
...Divisional Court dismissed his claim for judicial review, holding that this was only available in exceptional circumstances: [2009] EWHC 3052 (Admin), [2010] 2 WLR 1012. In July 2010, the Court of Appeal dismissed his appeal, reaching the same result but by a different route: [2010] EWCA ......
-
Supreme Court for the 'Superior Court'?
...State for the Home Department (2nd IP), The Public Law Project (3rd IP) and Child maintenance and Enforcement Commission (Interveners) [2009] EWHC 3052 and in the Court of Appeal The Queen on the Application of Cart (Appellant) v The Upper Tribunal (D) and Secretary of State for Justice (IP......
-
Appeals
...v The Upper Tribunal [2011] UKSC 28, [2011] 4 All ER 127 at [43]. See also the decision of the Divisional Court in the same case, [2009] EWHC 3052 (Admin), [2010] 1 All ER 908 at [75]. See also Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC), (2010) 11 BMLR 1 at [37 (i)] (qu......
-
Table of Cases
...of State for the Home Department [2014] UKUT 439 (IAC), [2015] INLR 358, [2015] Imm AR 193 6.50 R (Cart) v The Upper Tribunal [2009] EWHC 3052 (Admin), [2010] 2 WLR 1012, [2010] 1 All ER 908, [2010] PTSR 824, DC 6.13, 6.85 R (Cart) v The Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663, [2011......
-
The Constitutional Logic of the Common Law.
...whether or not measures should be imposed that affect the fundamental rights of those in this country."); R (Cart) v. Upper Tribunal [2009] EWHC (Admin) 3052, [39] (Eng.) ("The rule of law requires that statute should be mediated by an authoritative and independent judicial source; and Parl......
-
Covert derogations and judicial deference: redefining liberty and due process rights in counterterrorism law and beyond.
...See RB (Algeria) v Secretary of State for the Home Department, [2009] UKHL 10, [2010] 2 AC 110. (151) See R (Cart) v Upper Tribunal, [2009] EWHC 3052 (Admin), [2010] 2 WLR 1012 (the use of closed evidence in bail proceedings in relation to a deportee breaches art 5(4) (152) See generally Jo......