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

Where an exclusion direction is certified under the statutory scheme, any existing judicial review proceedings concerning that direction terminate automatically. No further order of the High Court is required.

The scheme does not unlawfully oust judicial supervision. It allocates the challenge to the Special Immigration Appeals Commission, which has the powers and remedies of judicial review and is treated as institutionally equivalent to the High Court for this purpose. Certification is not conditional on procedural rules for the Commission already being in force, although the exercise of the certification power may itself be challenged for abuse or unlawfulness.

The claimant had brought judicial review proceedings challenging his exclusion from the United Kingdom on national security grounds. The proceedings had continued since 2010 and were approaching a hearing concerning public interest immunity.

After the Justice and Security Act 2013 came into force, the Secretary of State certified the exclusion direction under the transitional statutory scheme and informed the claimant that the existing proceedings had terminated. The claimant argued that certification could not automatically end proceedings, that the High Court retained jurisdiction to regulate them, and that the absence of SIAC procedural rules made the alternative remedy ineffective.

The issue was whether the statutory scheme lawfully authorised certification and automatic termination before those procedural rules were in force.

1. Disposition. The claim failed. The certificate terminated the existing judicial review proceedings without the need for a further order of the High Court.
2. Parliamentary intention. Section 15 of the Justice and Security Act 2013 created a route by which a person excluded on public-good grounds, where the decision relied on information that should not be made public for national-security or similar reasons, could challenge the direction in SIAC. Once certified, the challenge had to proceed there.
3. Termination. Schedule 3 paragraph 4 authorised certification of pre-commencement exclusion directions and termination of any judicial review proceedings relating to a certified direction, including proceedings begun before commencement. The statutory language of termination was clear and left no residual jurisdiction in the High Court, although the High Court could deal with ancillary matters such as costs.
4. Alternative forum. The scheme fell within the principle in Farley v Secretary of State for Work and Pensions (No 2) [2006] UKHL 31. SIAC was an institution up to the task of considering the challenge because sections 2C(3) and 2C(4) of the Special Immigration Appeals Commission Act 1997 required it to apply judicial-review principles and gave it the powers and remedies available in judicial review proceedings. High Court judges would hear such cases sitting in SIAC.
5. Procedural rules. Certification was not conditional upon SIAC’s new procedural rules being in force. The claimant could apply to SIAC under section 2C(2), even though the application might not yet be capable of being heard. The position therefore differed from M v Scottish Ministers [2012] UKSC 58.
6. The ouster-clause, access-to-justice and rule-of-law authorities did not alter that conclusion. Any particular exercise of the certification power could separately be challenged for abuse, unfairness, bad faith or unlawfulness, but those issues were not determined in this claim.