Ignaoua, R (On the Application Of) v Secretary of State for the Home Department

A general transitional power to provide for the termination of judicial review proceedings does not, without specific and express language, authorise a defendant public authority to end those proceedings automatically by issuing its own certificate. Such a result requires proper allowance for the court’s role in deciding whether proceedings should end.

Section 2C of the Special Immigration Appeals Commission Act 1997 permits an application to SIAC following certification of an exclusion direction. It neither makes SIAC the compulsory forum nor removes the High Court’s judicial review jurisdiction. The availability and adequacy of SIAC may instead be relevant to the court’s discretionary decision whether to grant permission, stay proceedings, or allow them to continue.

The appellant challenged an exclusion direction made on national-security grounds. His judicial review proceedings in the Administrative Court were delayed by issues concerning closed material and disclosure.

After section 2C was introduced into the Special Immigration Appeals Commission Act 1997, the Secretary of State certified the direction. Article 4(3) of the transitional Order purported to terminate the pending judicial review automatically. At that time, procedural rules enabling the new SIAC route to progress were not in force.

Cranston J held that certification required any challenge to proceed in SIAC and terminated the judicial review without a court order: [2013] EWHC 2512 (Admin). The appeal concerned whether the certificate lawfully and effectively ended the existing proceedings.

1. Appeal allowed unanimously. Richards LJ, with whom Sullivan LJ and the Master of the Rolls agreed, held that article 4(3) of the Justice and Security Act 2013 (Commencement, Transitional and Saving Provisions) Order 2013 was outside the powers conferred by the Justice and Security Act 2013. It was invalid and had no effect.

2. Paragraph 4(2)(b) of Schedule 3 authorised transitional provision concerning termination of judicial review proceedings. Its general wording did not specifically and expressly empower the Secretary of State, as defendant, to terminate pending proceedings automatically by issuing a certificate, without court intervention. That would be an exceptional interference with the court’s supervisory jurisdiction and procedural control.

3. The comparison with sections 97 to 99 of the Nationality, Immigration and Asylum Act 2002 reinforced that conclusion. Where Parliament intended certification to prevent an appeal being continued or to cause it to lapse, it used express language. Section 2C of the Special Immigration Appeals Commission Act 1997 instead provided that the affected person may apply to SIAC. It opened an alternative route but did not bar judicial review.

4. Accordingly, certification did not terminate existing judicial review proceedings. They remained extant unless and until the court ordered otherwise. Once SIAC procedures were available, the court might consider a stay, or might regard SIAC as an adequate alternative remedy, but that remained a discretionary and case-specific judicial decision.

5. The case was remitted to the Administrative Court to decide, using current information about SIAC procedures and any separate challenge to the certificate, whether the judicial review should be stayed or allowed to continue. The argument that the certificate was invalid because it caused legal limbo fell away once automatic termination was rejected.

• Court of Appeal (Civil Division): Allowed the appeal, declared article 4(3) of the transitional Order invalid and remitted the future conduct of the judicial review proceedings to the Administrative Court: [2013] EWCA Civ 1498.
• High Court, Administrative Court: Cranston J held that certification required the challenge to proceed in SIAC and terminated the judicial review without a court order: [2013] EWHC 2512 (Admin).