LO (Jordan) v Secretary of State for the Home Department

The Court of Appeal’s jurisdiction under section 7(1) of the Special Immigration Appeals Commission Act 1997 arises only after SIAC has made a final determination of the appeal. A preliminary ruling on one issue is not such a determination where other grounds remain undecided. Withdrawal of the underlying decision, causing the appeal to be treated as withdrawn under Rule 11A(2) of the Special Immigration Appeals Commission (Procedure) Rules, does not retrospectively create an appellate jurisdiction that did not exist when the preliminary ruling was made. “Final determination” means SIAC’s final decision disposing of the appeal, rather than its last substantive ruling during the proceedings.

The Secretary of State decided to deport LO to Jordan on national security grounds. LO appealed to SIAC, raising the national security issue and claims under Articles 3 and 8 of the ECHR. SIAC determined the national security issue as a preliminary issue, but adjourned the remaining issues while assurances concerning LO’s treatment in Jordan were sought.

The Secretary of State later withdrew the deportation decision. Under Rule 11A(2) of the Special Immigration Appeals Commission (Procedure) Rules, LO’s appeal was treated as withdrawn, and the Article 3 and Article 8 issues were never decided. SIAC refused permission to appeal the preliminary ruling, and LO applied to the Court of Appeal under section 7(1) of the Special Immigration Appeals Commission Act 1997. The central issue was whether the preliminary ruling, followed by withdrawal, amounted to a final determination.

1. Appeal dismissed. The Court granted permission to appeal on the jurisdiction issue, relying on the “some other compelling reason” basis, but held that it lacked jurisdiction to entertain the appeal on its merits.
2. Maurice Kay LJ held that section 7(1) of the Special Immigration Appeals Commission Act 1997 permits a further appeal only where SIAC has made a final determination of an appeal. He adopted the reasoning in Al-Jedda v Secretary of State for the Home Department [2008] EWCA Civ 1041, where a preliminary issue had been decided but the SIAC appeal remained ongoing.
3. The withdrawal of the deportation decision did not convert the earlier preliminary ruling into a final determination. Rule 11A(2) of the Special Immigration Appeals Commission (Procedure) Rules treated the appeal as withdrawn, rather than finally disposed of by a decision determining the appeal.
4. Rimer LJ agreed that “final determination” means SIAC’s final decision disposing of the appeal. It does not mean the last substantive decision made during the proceedings, since that interpretation would make jurisdiction depend on uncertain future events and could produce more than one supposed final determination.
5. The Court observed that issue estoppel and res judicata do not generally apply in public law, and declined to express a view on any possible judicial review remedy. The substantive grounds were not considered.

• Court of Appeal (Civil Division): Permission to appeal was granted on the jurisdiction issue, but the appeal was dismissed. The Court held that section 7(1) of the Special Immigration Appeals Commission Act 1997 was not engaged because SIAC had not made a final determination.
• Court of Appeal (Civil Division): Lord Justice Richards had refused permission on the papers. On renewal, Maurice Kay LJ adjourned the application for determination by two Lord Justices in [2011] EWCA Civ 82.
• Special Immigration Appeals Commission: SIAC determined the national security issue as a preliminary issue, adjourned the remaining grounds, and later treated the appeal as withdrawn under Rule 11A(2) of the Special Immigration Appeals Commission (Procedure) Rules after the deportation decision was withdrawn.