A v Secretary of State for the Home Department (No. 2)

JurisdictionEngland & Wales
JudgeLord Justice Pill,LORD JUSTICE LAWS,Lord Justice Neuberger
Judgment Date11 August 2004
Neutral Citation[2004] EWCA Civ 1123
Docket NumberCase No: C2/2003/2796 C2/2004/0067
CourtCourt of Appeal (Civil Division)
Date11 August 2004
A,b,c,d,e,f,g,h,mahmoud Abu Rideh
Jamal Ajouaou
Secretary of State for The Home Department

[2004] EWCA Civ 1123


Lord Justice Pill

Lord Justice Laws and

Lord Justice Neuberger

Case No: C2/2003/2796







Royal Courts of Justice

Strand, London, WC2A 2LL

MR B EMMERSON QC & MR R HUSAIN (for all Appellants except C & D)

Mr M GILL & MISS S HARRISON (for Appellants C & D)

MR I BURNETT QC, MR R TAM, MR J SWIFT, MISS L GIOVANNETTI, MR T EICKE, MISS C NEENAN (for the Secretary of State for the Home Department)

Lord Justice Pill

These are appeals, by a number of persons detained pursuant to the certificates, against the refusal of the Special Immigration Appeals Commission ("the Commission") to cancel certificates issued by the Secretary of State for the Home Department ("the Secretary of State") under Section 21 of the Anti-Terrorism, Crime and Security Act 2001 ("the 2001 Act") . Two of the Appellants, Ajouaou and F, had ceased to be detained because they had gone to another country. Their certificates were revoked. They launched fresh appeals from abroad against the original certification. The Commission decided that it had no jurisdiction to hear those appeals, a decision which is challenged in this court.


On 29 October 2003, the Commission, Ouseley J presiding, delivered what has been described as a generic judgment. It included a consideration of general points arising from the legality of the certificates. It also included a detailed summary of the evidence relied on by the parties. A number of individual determinations, one for each of the Appellants, were handed down on the same day. Some bore the name of Ouseley J as Chairman of the Commission and others of Collins J as Chairman. There had been a series of hearings over a period of four months. Collins J presided at some of them and Ouseley J at others.


Apart from the jurisdictional issue, three general issues are raised for the consideration of this court. It is submitted that, on each of them, the Commission has misdirected itself in its approach to the evidence. Mr Emmerson QC, for the Appellants other than C & D, and Mr Gill QC for C & D, submit that if there is a finding in favour of the Appellants on any one of the three issues, remission to the Commission for re-hearing of the cases is required. It is accepted that if the generic points raised fail, there is nothing in the individual cases capable of amounting to a point of law, save as mentioned in the following paragraph.


For the Secretary of State, Mr Burnett QC submitted initially that there could be circumstances in which, in that event, this court could resolve individual cases finally. That submission has not been maintained and, in my view, remission would be necessary to allow the Commission to consider the evidence afresh. A general point is also taken upon the procedure for disclosure of documents by the Respondent and a discrete point is taken, in the case of D, upon the procedure followed before the Commission in his case. A further point is taken in relation to the Refugee Convention.

The statutory background


The United Kingdom is of course party to the European Convention on Human Rights ("the Convention") . Article 5 provides:

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.

A series of cases is specified including, of course, "the lawful detention of a person after conviction by a competent court" (5.(1) (a)) . Another case, at Article 5.1(f) is:

"The lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."

Article 5 (4) provides:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."


Article 6 need not be set out in full. The first sentence provides:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

It has been held in this court that proceedings before the Commission are not criminal proceedings for the purposes of Article 6. The result is that Article 6 (2) and (3) do not apply ( A & Ors v Secretary of State for the Home Department [2004] QB 335 per Lord Woolf CJ at p364A) .


The effect of Sections 1 and 6 (1) of the Human Rights Act 1998 ("the 1998 Act") is that it is unlawful for a court to act in a way which is incompatible with the Convention rights set out in the above Articles unless section 6(2) applies. That provides:

"(2) Subsection (1) does not apply to an act if –

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."


Article 15 permits derogation from obligations under the Convention in limited circumstances:

"1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligation under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law."

By virtue of Article 15 (2) no derogation is permissible from several articles, including Article 3.


Following terrorist attacks in the United States on 11 September 2001 the United Kingdom government formed the view that a public emergency, within the meaning of Article 15 (1) of the Convention, existed in the United Kingdom. A proposed derogation from Article 5 (1) of the Convention was notified to the Secretary General of the Council of Europe under Article 15 (3) of the Convention. The Human Rights Act 1998 (Designated Derogation) Order 2001 ("the 2001 Order") was made on 11 November 2001, having been approved by both Houses of Parliament. Section 14(6) of the 1998 Act permits the making of such a derogation order.


The 2001 Order provides, in Article 2:

"The proposed derogation by the United Kingdom from Article 5(1) of the Convention, set out in the Schedule to this Order, is hereby designated for the purposes of the 1998 Act in anticipation of the making by the United Kingdom of the proposed derogation".


The Schedule to the 2001 Order refers to the terrorist acts in the United States on 11 September 2001 and the resolutions of the United Nations Security Council recognising the attacks as a threat to international peace and security. It states that the threat from international terrorism is a continuing one and that the Security Council in its resolution 1373 (2001) "required all states to take measures to prevent the commission of terrorist attacks, including by denying safe haven for those who finance, plan, support or commit terrorist attacks". The Schedule continues:

"There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom.

As a result, a public emergency, within the meaning of Article 15(1) of the Convention, exists in the United Kingdom."


The provisions of the then proposed 2001 Act are summarised and it is stated that the Act "is a measure which is strictly required by the exigencies of the situation". The Act is described as a "temporary provision" and reference is made to its being subject to annual renewal by Parliament.


Existing powers are described, by reference to authority, and the perceived gap which it was thought necessary to fill by legislation:

"In some cases, where the intention remains to remove or deport a person on national security grounds, continued detention may not be consistent with Article 5(1) (f) as interpreted by the Court in the Chahal [(1996) 23 EHRR 413] case. This may be the case, for example, if the person has established that removal to their own country might result in treatment contrary to Article 3 of the Convention. In such circumstances, irrespective of the gravity of the threat to national security posed by the person concerned, it is well established that Article 3 prevents removal or deportation to a place where there is a real risk that the person will suffer treatment contrary to that article. If no alternative destination is immediately available then removal or deportation may not, for the time being, be possible even though the ultimate intention remains to remove or deport the person once satisfactory arrangements can be made. In addition, it may not be possible to prosecute the person for a criminal offence given the strict rules on the admissibility of evidence in the...

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