Judicial review proceedings may not be terminated by the government – Court of Appeal

22 November 2013 by Rosalind English

20100204104618!TerminatorIgnaoua, R (on the application of) v Secretary of State for the Home Department [2013] EWCA Civ 1498  – read judgment

A certificate issued by the Home Secretary under Section 2 C 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”), did not terminate existing judicial review proceedings in relation to an exclusion direction which had been certified.

The appellant appealed against a decision concerning judicial review proceedings he had brought against the respondent secretary of state (see my previous post for the factual background of the case). These proceedings had been terminated by virtue of the 2013 Act. The appellant challenged the certificate, but Cranston J below held that the intention of Parliament was “hard-edged” and left no discretion to the judge, and meant that if an exclusion direction was certified by the secretary of state, any challenge to it had to be advanced to SIAC (the Special Immigration Appeals Commission). The question before the Court of Appeal here was whether the secretary of state’s certificate was effective to terminate the judicial review proceedings relating to the exclusion direction. At the time of the appeal, the procedural rules required for an application to SIAC were not in force.

The secretary of state contended that parliament’s intention that the effect of the certificate to terminate judicial review proceedings was clearly set out in Schedule 3, para 4(2)(b) of the 2013 Act, which meant that where an exclusion direction was certified, a challenge to the direction “must” be advanced to SIAC. It was argued on her behalf that the transitional provisions relating to the termination of judicial review proceedings were a corollary of the intention of Parliament, expressed in section 15 of the 2013 Act, that where an exclusion direction is certified by the Secretary of State, a challenge to the direction must be advanced in SIAC rather than by way of judicial review. This way of putting it was in line with Cranston J’s approach to the matter.

The Court of Appeal allowed the appeal.

Reasoning behind the judgment

The power to make provision for the termination of judicial review proceedings was couched in very general terms but that generality did not assist the Secretary of State. If it had been intended to empower the making of provision whereby the Secretary of State, by making a certificate, could cause existing judicial review proceedings against her to terminate automatically and without the intervention of the court, the Court would have expected specific, express language to that effect; and in the absence of such express language it did not think that Schedule 3, para 4(2)(b) should not be read as conferring upon the secretary of state such a striking power.

The terms of Section 15 of the 2013 Act did not reveal a clear intention of that kind. In Richard LJ’s view

 Section 2C of the 1997 Act, as inserted by section 15, provides in subsection (2) that where a direction is certified “the non-EEA national to whom the direction relates may apply to the Special Immigration Appeals Commission to set aside the direction” (emphasis added). It opens the way to an application to SIAC but it does not provide that an application to set aside the certificate must be made to SIAC rather than to the court. It does not block an application to the court by way of judicial review. [23]

The 2013 Act does not purport to remove the court’s jurisdiction to entertain a judicial review application in relation to an exclusion direction made and certified after the commencement day.  It opened the way to an application to SIAC but it did not provide that application to set aside the certificate had to be made to SIAC rather than to the court. It did not block an application for judicial review. In relation to an exclusion direction made and certified after June 25, 2013, the 2013 Act empowered the secretary of state to effect the automatic termination of existing judicial review proceedings by a certificate made after the commencement day. The statute conferred no such power. It followed that in purporting to provide, by Article 4(3) of the 2013 Order, that a certificate under Section 2C(1)(c) of the 1997 Act in relation to a direction made before 25 June 2013 “terminates any judicial review proceedings, or proceedings on appeal from such proceedings”, the secretary of state was acting outside the powers conferred on her by the 2013 Act:

Article 4(3) of the 2013 Order provides on its face that the effect of a certificate under section 2C(1)(c) of the 1997 Act in respect of an exclusion direction made before 25 June 2013 is automatically to terminate any existing judicial review proceedings which relate to that direction. If that is indeed the legal effect of such a certificate, it is a truly remarkable result, since it puts 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 by the court; and to do so irrespective of the stage that the proceedings have reached, whether at first instance or on appeal

Article 4(3) of the 2013 Order was outside the powers conferred by the 2013 Act. The appellant’s judicial review challenge to the exclusion decision had not been terminated by the making of the certificate.  It was unnecessary to consider what provision the Secretary of State could lawfully have made or could now make by Order for the termination of existing judicial review proceedings, save to note that it followed from the matters set out above that such provision must make “proper allowance for the role of the court” in deciding whether the proceedings are to terminate.

The case would be remitted to the Administrative Court to determine, in the light of up to date information about the procedural position within SIAC, whether the judicial review proceedings should be stayed or allowed to continue. The Court also  declared that article 4(3) of the 2013 Order was outside the powers conferred by the 2013 Act and that the judicial review proceedings relating to the exclusion direction had not been terminated by the making of the certificate.

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