In R (Ignaoua) [2013] EWHC 2512, the Administrative Court held that under powers conferred by section 15 Justice and Security Act 2013 the Secretary of State can automatically and unilaterally terminate qualifying judicial review proceedings.  The appeal hearing concerning this controversial ruling is imminent.

The Claimant was a Tunisian national who came to the UK in 2004 and claimed asylum.  In 2008, with a decision on his asylum claim still outstanding, he was extradited to Italy to face charges relating to terrorism.  He was acquitted of all charges on 8 July 2010.  Shortly after his acquittal, the Secretary of State made a decision that he be excluded from the UK because she believed him to be involved in “facilitation and radicalization” activities.

On 28 October 2010, the Claimant applied for judicial review of the Secretary of State’s decision to exclude him from the UK and he was subsequently granted permission.  Following an indication from the Secretary of State that she wished to withhold the material on which the decision was based, directions were made for the Secretary of State to serve a PII certificate and for a PII hearing to be listed.  More than two and a half years later, little progress had been made.  It appears that the delay was (at least in part) due the Secretary of State’s unwillingness to provide even the open material underlying the decision to exclude the Claimant from the UK.  For that reason a PII hearing listed for May 2013 was adjourned.

On 16 July 2013, the Secretary of State applied to adjourn the relisted PII hearing on the basis that the Justice and Security Act 2013 (which had recently come into force) provided the Claimant with alternative remedy by way of an application to the Special Immigration Appeals Commission (SIAC).

On the same day Ouseley J refused to adjourn, the Secretary of State certified her decision to exclude the Claimant under powers introduced by section 15 Justice and Security Act 2013.  The certification purported to be a “trump card” that had the effect of terminating the judicial review proceedings.

The Claimant submitted that the court’s jurisdiction to regulate its own proceedings could not be ousted.  He relied upon fundamental principles of the rule of law and statutory interpretation to argue that:

the legislation could not be read as automatically terminating proceedings for judicial review in this type of case without further order of the court.

In a short judgment, considering the scope of the argument, Cranston J found that the clear Parliamentary intention expressed in section 15 Justice and Security Act 2013 was that certification automatically terminates the judicial review proceedings without further order of the court:

the language of termination in the statute is hard-edged and indicated to me the intention that the court does not retain any residual jurisdiction.

He made it clear that the effect of certification is not to transfer the claim to SIAC; it simply terminates the judicial review proceedings.  He considered that the adequacy and potential effectiveness of the procedures in SIAC meant it was an equivalent alternative means of challenging the direction to exclude the Claimant from the UK.

The Secretary of State’s power to terminate judicial review proceedings in which she is a party regardless of what stage they might be at is, from a rule of law perspective, extremely controversial.  Cranston J was prepared to admit that aspects of the statutory scheme were “troubling”.  He accepted that the lawfulness of the decision to issue the certificate (as distinct from the lawfulness of the underlying exclusion direction) could be challenged in the High Court but only by way of new judicial review proceedings.  That was the only logical outcome of his decision that certification automatically terminates the entirety of the judicial review proceedings at hand.  The result is astonishing: a certification decision subsequently found to be unlawful would nonetheless have succeeded in automatically terminating the claim.

SIAC’s many detractors would point out that it does not provide the Claimant with an equivalent alternative remedy to judicial review.  It extends to the Secretary of State the significant litigation advantage of closed material proceedings.  That was particularly significant given that the Secretary of State’s justification for withholding material was on the brink of being tested by the PII balancing exercise.  Leaving that issue aside, it is unclear how the claimant can be said to have an effective remedy when the procedural rules that would empower SIAC to hear his case are still not in force.  This means that even if the claimant were to commence a claim in the government’s chosen forum of SIAC, it would immediately stall.  Cranston J acknowledged that these “disturbing features” of the scheme’s practical implementation would leave the Claimant in “limbo”.  To issue a certificate that terminates judicial review proceedings in such circumstances is arguably unlawful and, at the very least, deplorable administrative practice by the government.  It is also extremely worrying that the court is prepared to endorse the adequacy and effectiveness of a set of procedural rules not yet in existence.

The Claimant’s appeal was heard by the Court of Appeal on 11 November 2013.