SECRETARY OF STATE FOR THE HOME DEPARTMENT v LISA SMITH

In a statutory appeal, the appellate court is identified by the governing statute. Where the statutory language is prescriptive, the court has no discretion to select the forum with the closest connection or greater local expertise. Under the Special Immigration Appeals Commission Act 1997, a SIAC determination is made in the part of the United Kingdom where the Commission sits pursuant to the Lord Chancellor’s direction. A determination issued at Field House, London, therefore attracts an appeal to the Court of Appeal of England and Wales. The judicial-review approach based on territorial connection does not govern a statutory appeal. An SIAC appellant has no right to appoint a special advocate of choice, so the qualification requirement does not create Article 14 differential treatment based on nationality or other status.

The Secretary of State excluded Ms Smith from the United Kingdom under regulation 23(5) of the Immigration (European Economic Area) Regulations 2016. She appealed to SIAC, challenging the exclusion on human-rights grounds.

Before the substantive appeal, Chamberlain J ruled in SC/169/2020 that the proceedings were proceedings before SIAC in England and Wales and that any special advocate required the relevant qualification for that jurisdiction. SIAC subsequently allowed Ms Smith’s appeal against the exclusion order. The Secretary of State appealed. Ms Smith challenged the jurisdiction of the Court of Appeal of England and Wales, arguing that the appeal belonged in Northern Ireland. The central issue was the meaning of a determination made by SIAC in England and Wales under the Special Immigration Appeals Commission Act 1997.

Jurisdiction confirmed. The Court of Appeal of England and Wales was the appropriate appeal court. The substantive appeal was not determined in this judgment.

1. The phrase appropriate appeal court in section 7 of the Special Immigration Appeals Commission Act 1997 imposed a hard-edged statutory allocation. It did not confer a discretion to choose the court with the closest connection, the place where the effects were felt, or the greater knowledge of local conditions.
2. The reasoning in Tehrani v Secretary of State for the Home Department [2006] UKHL 47 concerned the scope of common-law supervisory jurisdiction in judicial review. It did not govern a statutory appeal. The statutory scheme in Tehrani also differed because the tribunal could sit throughout the United Kingdom.
3. The approach was consistent with Gardi v Secretary of State for the Home Department (No. 2) [2002] 1 WLR 3282 and KP (Pakistan) v Secretary of State for the Home Department [2019] EWCA Civ 556, where prescriptive statutory schemes determined the appellate forum and excluded jurisdiction elsewhere.
4. SIAC could sit only where directed by the Lord Chancellor under Schedule 1 paragraph 4 of the 1997 Act. The only relevant direction required it to sit at Field House, London. The determination was therefore made in England and Wales. Section 7(3)(a) assigned the appeal to this court and not to the Court of Appeal in Northern Ireland.
5. The Article 14 argument also failed. An SIAC appellant has no right to appoint a special advocate of choice; the appellant can only suggest a candidate, with appointment resting with the relevant law officer. The inability to nominate a Northern Ireland-only qualified advocate therefore did not create differential treatment based on nationality or another recognised status. Any effect on Convention rights was very limited.

• Court of Appeal (Civil Division): Under [2022] EWCA Civ 1445, held that the appeal lay to the Court of Appeal of England and Wales.
• Special Immigration Appeals Commission: On 7 May 2021, allowed Ms Smith’s appeal against the exclusion order and refused permission to appeal.
• SIAC, Chamberlain J: On 8 July 2020 in SC/169/2020, held that the proceedings were in England and Wales and that a special advocate required the relevant England and Wales qualification.