Home Secretary's 'certificate' did not terminate judicial review

R (Ignaoua) v Secretary of State for the Home Department [2013] EWCA Civ 1498 (Lord Dyson MR, Richards and Sullivan LJJ) is a most important decision relating to judicial review.   

Lord Justice Richards (delivering the court's unanimous judgment) said - (links to legislation added):

1. 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 ("the 2013 Act"), which came into force on 25 June 2013.


2. 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.


3. 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.


4. 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.


5. 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.


6. 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 Court of Appeal held:  

Conclusion

1. For the reasons given I would allow the appeal, declare that article 4(3) of the 2013 Order is outside the powers conferred by the 2013 Act and that the judicial review proceedings relating to the exclusion direction have not been terminated by the making of the certificate, and remit the case to the Administrative Court to decide on the future of those proceedings. 

Earlier post - 11th August 2013 - Justice and Security Act 2013 - On-going judicial review stopped