G v Secretary of State for the Home Department (INTERIM DECISION)

For statutory appellate jurisdiction, the Court of Appeal may act only under the relevant statutory provision or an ancillary jurisdiction necessarily implied by it. Under section 7 of the Special Immigration Appeals Commission Act 1997, an appeal lies only from a final determination of an appeal by SIAC and on a question of law material to that determination. A later application for bail under section 24 of the Anti-terrorism, Crime and Security Act 2001 is not itself an appeal. A grant of bail after the certification appeal has been finally determined is not the final determination of that appeal. The majority therefore held that no statutory appeal lay, but left SIAC’s bail jurisdiction and the availability of judicial review open for further argument.

G, an Algerian certified as a suspected international terrorist under section 21(1) of the Anti-terrorism, Crime and Security Act 2001, had been detained since December 2001 pending deportation. SIAC dismissed his appeal against certification on 29 October 2003. G then applied for bail under section 24 of the Act, relying on deterioration in his mental and physical health. On 20 January 2004 SIAC decided in principle that he should be released on bail subject to stringent conditions amounting to house arrest.

The Secretary of State sought permission to appeal. The central issues were whether SIAC had jurisdiction to grant bail when no appeal was pending, whether section 7 of the Special Immigration Appeals Commission Act 1997 conferred a right of appeal against the bail decision, and whether judicial review or a declaration of Convention incompatibility might be available.

Majority decision. Lord Phillips MR and Lord Justice Laws held that the Court of Appeal had no statutory jurisdiction to entertain the Secretary of State’s proposed appeal against SIAC’s bail decision. The application was restored for further argument.

1. The Court of Appeal is a creature of statute. It has no jurisdiction beyond that conferred by statute or jurisdiction necessarily ancillary to a statutory jurisdiction: Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528.
2. Section 7 of the Special Immigration Appeals Commission Act 1997 applies where SIAC has made a final determination of an appeal and the proposed appeal raises a question of law material to that determination. G’s appeal was against certification and had already been dismissed. His later application for bail was not an appeal, and SIAC’s grant of bail was not the final determination of the certification appeal. No statutory right of appeal therefore arose.
3. The court expressed no final view on SIAC’s jurisdiction to grant bail where no appeal was pending, on the permissible scope of conditions under section 24(2) of the Anti-terrorism, Crime and Security Act 2001, or on the merits of SIAC’s decision. The Secretary of State’s limited concession concerning Article 3 was regarded as lacking logic. If incompatibility with the Convention was to be determined, the Crown first had to receive notice and an opportunity to make further submissions.
4. The availability of judicial review of SIAC’s jurisdiction also required fuller examination. Although In re Racal Communications Ltd [1981] AC 375 contained important observations concerning review of errors of law by inferior courts, the majority were not persuaded that those observations necessarily precluded review where a court of very limited jurisdiction purported to exercise a jurisdiction it did not possess. The court contemplated reconstituting itself as the Administrative Court and sought the assistance of an advocate to the court.

Dissent

Lord Justice Pill respectfully dissented on the Court of Appeal’s jurisdiction. He considered certification, detention and bail so interwoven that a contemporaneous grant of bail should be treated as part of SIAC’s final determination under section 7(1). He would not allow the lapse of time, or the fact that G’s medical problems were discovered later, to deprive the court of jurisdiction. He reserved his views on the merits and on the permissible conditions, and otherwise agreed with the proposed course.

1. Court of Appeal (Civil Division): On 9 March 2004, the majority held that section 7 of the Special Immigration Appeals Commission Act 1997 did not confer jurisdiction over the proposed appeal against SIAC’s bail decision. The application was restored for further argument. Lord Justice Pill dissented on that jurisdictional issue.
2. Special Immigration Appeals Commission: On 20 January 2004, SIAC decided in principle that G should be released on bail under section 24 of the Anti-terrorism, Crime and Security Act 2001, subject to stringent conditions.
3. Special Immigration Appeals Commission: On 29 October 2003, SIAC dismissed G’s appeal against his certification under section 21 of the Anti-terrorism, Crime and Security Act 2001.