The Court of Appeal has held, overturning the decision of the High Court (see previous blog), that the issue of a certificate under section 15 Justice and Security Act 2013 does not have the effect of terminating existing judicial review proceedings.

The Claimant in Ignaoua 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, and his wife and child still residing in the UK, he was extradited to Italy to face charges relating to terrorism.  He was acquitted of all charges on 8 July 2010 but, shortly after his acquittal, the Secretary of State had made a decision to exclude him from the UK.  This decision was challenged by way of judicial review.  As the Secretary of State had indicated she did not wish to disclose the material upon which the decision was based, the court directed a public interest immunity (‘PII’) process.  On the eve of the PII hearing (presumably, in order to preventing it from proceeding), the Secretary of State issued a certificate under section 15 Justice and Security Act 2013, which purported to have the effect of terminating the judicial review.  In doing so, the Secretary of State relied upon article 4(3) The Justice and Security Act 2013 (Commencement, Transitional and Saving Provisions) Order 2013 (‘2013 Commencement Order’), which had never been subjected to a proper process of Parliamentary scrutiny.

The Court of Appeal noted that the nature of the section 15 Justice and Security Act 2013 power (as expressed in article 4(3) 2013 Commencement Order) appeared “truly remarkable”.  On one view, it appeared to:

[Put] in the hands of the Secretary of State, as a party to (indeed, a defendant to) judicial review proceedings, the power to bring about the termination of those proceedings by her own act and without any intervention of the court; and to do so irrespective of the stage the proceedings have reached, whether at first instance or on appeal.

The Secretary of State accepted that the power was “most unusual” but submitted that Parliament’s intention was clear.  Her submission reflected the decision of Cranston J in the High Court, who had found that “the clear Parliamentary intention expressed in section 15 of the Justice and Security Act 2013” was decisive of the case.  She submitted that while for obvious reasons the passage of the Bill in Parliament had been “hard fought”, “the final result is clear and the courts must accept it”.

The Court of Appeal found that the “very general” language in schedule 3, paragraph 4 Justice and Security Act 2013 was insufficiently clear given the unprecedented power it purportedly conferred:

If it had been intended to empower the making of a provision whereby the Secretary of State, by making a certificate, could cause existing judicial review proceedings against her to terminate automatically and without the jurisdiction of the court I would have expected specific, express language to that effect; and in the absence of such express language I do not think that paragraph 4(2)(b) should be read as conferring on the court so striking a power. 

The court further held that section 15 itself does not reveal a “clear intention” to remove the court’s jurisdiction to consider an application for judicial review of an exclusion decision.  Since judicial review is a remedy of last resort, the possibility of bringing a claim in SIAC may result in permission being refused; crucially, however, this is a “discretionary decision for the court”.  The Court indicated that permission might be granted in circumstances where (as was the case at the time of the decision in Ignaoua) SIAC could not provide an effective remedy because the procedure rules that would enable it to hear the claim were not yet in force.

There’s no question that Ignaoua is a landmark re-affirmation of the court’s inherent power to regulate its procedure.  The Court’s reading of the statute thwarted what was an attempt to oust its inherent supervisory jurisdiction and introduce an unprecedented power for a defendant in public law proceedings to deny a claimant access to the High Court.  Implicit in the judgment is a warning that the government must “make proper allowance for the role of the court” when drafting secondary legislation.

Legal representatives should note that the The Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2013 finally came into force on 28 November 2013.  The court indicated that while it will exercise its discretion in light of the circumstances of the individual case, permission for judicial review of a certified decision to exclude a person from the United Kingdom or refuse registration or naturalisation as a British citizen is likely be refused where SIAC provides an effective alternative remedy.