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

Where a decision has been certified under the statutory scheme permitting a challenge before SIAC, the Administrative Court should ordinarily stay existing judicial review proceedings if SIAC offers an effective and appropriate alternative remedy. The court must assess the interests of the fair and effective administration of justice, including the statutory scheme, SIAC’s expertise, the treatment of protected material and the avoidance of duplicated proceedings.

A claimant need not first pursue a public interest immunity process before a stay is ordered. The court should not use closed material when deciding whether to stay, because that would introduce a closed procedure without statutory authority. A stay does not terminate the judicial review and may be lifted where a distinct need for interim relief arises.

Three judicial review claims concerned exclusion, naturalisation or citizenship decisions certified under Justice and Security Act 2013, s 15, which amended the Special Immigration Appeals Commission Act 1997 by inserting ss 2C and 2D. The certificates enabled the claimants to apply to SIAC to set aside the decisions on judicial review principles.

The Court of Appeal had held that certification did not terminate existing judicial review proceedings and remitted the question whether they should be stayed. The central issue was whether the claims should proceed in the Administrative Court, potentially under s 6 of the 2013 Act, or be stayed so that the claimants could pursue the alternative SIAC remedy.

1. Stay ordered. The three judicial review claims were stayed so that the claimants could proceed in SIAC. The balance of fairness and effective administration of justice favoured that course.
2. The court gave considerable weight to the legislative scheme. Parliament had created a specific SIAC route for certified exclusion and naturalisation or citizenship decisions. SIAC applied judicial review principles and had established expertise in handling protected material. Its disclosure rules and the procedure under s 6 of the Justice and Security Act 2013 were materially similar in requiring the Secretary of State to justify withholding material by reference to harm to protected interests.
3. SIAC was the more effective forum where the claimant’s prospects depended on the court considering material not disclosed to the claimant. Relevant material would be available to the Commission and special advocate in SIAC. By contrast, the s 6 procedure was confined to national security material and might leave the High Court unable to consider material protected for other interests under the SIAC rules.
4. The Court of Appeal’s guidance in Ignaoua v Secretary of State for the Home Department and AHK and Others v Secretary of State for the Home Department strongly supported treating SIAC as an effective alternative remedy. It was wrong in principle to pursue judicial review as far as possible and use SIAC only as a fallback. The court also rejected waiting for a PII hearing. That would risk duplication, delay and unnecessary cost, and the disclosure process in SIAC or under s 6 would determine whether withholding material was justified.
5. The court should not inspect closed material when deciding the stay. Doing so would create a closed procedure without statutory basis and would involve reasoning unavailable to one party. A stay did not terminate the claims. It could be lifted for a distinct interim-relief issue, although no such issue arose here.
6. The order did not prevent a future High Court challenge to a separate allegedly unlawful act by the Secretary of State while SIAC proceedings were pending.

The Court of Appeal held that the certificate did not lawfully terminate the existing judicial review proceedings and remitted the question whether they should be stayed: [2013] EWCA Civ 1498; [2014] 1 WLR 651. It had also stayed related appeals pending pursuit of the SIAC remedy: [2014] EWCA Civ 151. The Administrative Court then stayed the three claims.