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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ignaoua, R (On the Application Of) v The Secretary of State for the Home Department [2014] EWHC 1382 (Admin) (08 May 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/1382.html Cite as: [2014] EWHC 1382 (Admin) |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE IRWIN
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THE QUEEN on the application of: Case 1: IGNAOUA Case 2: HN Case 3: AA |
Claimant Claimant Claimant |
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- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
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Sonali Naik (instructed by Birnberg Peirce & Partners) for the Claimant, Case 2
Amanda Weston (instructed by Birnberg Peirce & Partners) for the Claimant, Case 3
Rory Phillips QC & Julian Blake (instructed by The Treasury Solicitor) for the Defendant
Stephen Cragg QC, Special Advocate (instructed by Special Advocates' Support Office)
Hearing dates: 21st March 2013
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Crown Copyright ©
Mr Justice Ouseley:
The statutory and legal framework
"(1) The court seised of relevant civil proceedings may make a declaration that the proceedings are proceedings in which a closed material application may be made to the court.
(2) The court may make such a declaration—
(a) on the application of—
(i) the Secretary of State (whether or not the Secretary of State is a party to the proceedings), or
(ii) any party to the proceedings, or
(b) of its own motion.
(3) The court may make such a declaration if it considers that the following two conditions are met.
(4) The first condition is that—
(a) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or
(b) a party to the proceedings would be required to make such a disclosure were it not for one or more of the following—
(i) the possibility of a claim for public interest immunity in relation to the material,
(ii) the fact that there would be no requirement to disclose if the party chose not to rely on the material,
(iii) section 17(1) of the Regulation of Investigatory Powers Act 2000 (exclusion for intercept material),
(iv) any other enactment that would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section.
(5) The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration.
(6) The two conditions are met if the court considers that they are met in relation to any material that would be required to be disclosed in the course of the proceedings (and an application under subsection (2)(a) need not be based on all of the material that might meet the conditions or on material that the applicant would be required to disclose).
(7) The court must not consider an application by the Secretary of State under subsection (2)(a) unless it is satisfied that the Secretary of State has, before making the application, considered whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application is based.
(11) "sensitive material" means material the disclosure of which would be damaging to the interests of national security".
"(c) that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security,
(d) that, if permission is given by the court not to disclose material, it must consider requiring the relevant person to provide a summary of the material to every other party to the proceedings (and every other party's legal representative),
(e) that the court is required to ensure that such a summary does not contain material the disclosure of which would be damaging to the interests of national security".
"(1) Subsection (2) applies in relation to any direction about the exclusion of a non-EEA national from the United Kingdom which—
(a) is made by the Secretary of State wholly or partly on the ground that the exclusion from the United Kingdom of the non-EEA national is conducive to the public good,
(b) is not subject to a right of appeal, and
(c) is certified by the Secretary of State as a direction that was made wholly or partly in reliance on information which, in the opinion of the Secretary of State, should not be made public—
(i) in the interests of national security,
(ii) in the interests of the relationship between the United Kingdom and another country, or
(iii) otherwise in the public interest.
(2) The non-EEA national to whom the direction relates may apply to the Special Immigration Appeals Commission to set aside the direction.
(3) In determining whether the direction should be set aside, the Commission must apply the principles which would be applied in judicial review proceedings.
(4) If the Commission decides that the direction should be set aside, it may make any such order, or give any such relief, as may be made or given in judicial review proceedings.
(5) In this section—
"non-EEA national" means any person who is not a national of an EEA state,
and references in this section to the Secretary of State are to the Secretary of State acting in person".
"(1) When exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.
(2) Where these Rules require information not to be disclosed contrary to the public interest, that requirement is to be interpreted in accordance with paragraph (1).
(3) Subject to paragraphs (1) and (2), the Commission must satisfy itself that the material available to it enables it properly to determine proceedings".
Richards LJ said at paragraphs 30 and 31 of that case:
"30. In the absence of lawful provision for termination, the making of a certificate has no effect on existing judicial review proceedings. They continue in being unless and until the court orders otherwise. Once the SIAC procedural rules are in place, I think it likely that the court will decide to stay existing proceedings for much the same reasons as it is likely to refuse permission for a new judicial review application in a post-commencement case (see para [24] above). Again, however, that is a discretionary decision for the court in the light of the circumstances of the individual case.
31. Since the appellant's judicial review challenge to the exclusion decision has not been terminated by the making of a certificate, I would remit the case to the Administrative Court to determine, in the light of up to date information about the procedural position within SIAC, whether the judicial review proceedings should be stayed or be allowed to continue."
"In practice, once the relevant SIAC procedural rules are in force, it is likely that judicial review will be perceived as a less attractive or appropriate option than an application to SIAC under section 2C of the 1997 Act, especially in the light of the observations of Ouseley J in R (AHK) v Secretary of State for the Home Department [2012] EWHC 1117 (Admin), in particular at paras [57]-[64], as to the impossibility or improbability of a claimant succeeding in a judicial review of this kind in the absence of a closed material procedure. In any event, the court itself is likely to refuse permission for judicial review in such a case on the ground that an application to SIAC provides an appropriate alternative remedy. That, however, is a discretionary decision for the court in the light of the circumstances of the individual case".
"33. In my view the appellants' "wait and see" approach in relation to the pursuit of proceedings in SIAC is wrong in principle. I accept Mr Phillips's submission that the provisions of the 2013 Act allowing for the certification of decisions of this kind and the bringing of challenges to them in SIAC are intended to cure the problems identified by Ouseley J and to provide an effective and appropriate alternative to judicial renew for the handling of such cases. It is true that, as the court pointed out in Ignaoua, Parliament left applicants with a choice between SIAC proceedings or judicial review in the Administrative Court, but that does not mean that applicants can properly pursue both routes, and in particular it does not mean that they should be permitted to press ahead with judicial review proceedings as far as they can and only then fall back on SIAC as an alternative remedy. That would involve both delay and a waste of court resources. If the alternative remedy in SIAC is to be pursued it should be pursued expeditiously. Different considerations might arise if the appellants wished to limit themselves to the existing judicial review proceedings and forgo the possibility of an application to SIAC. None of them, however, suggested that they wished to adopt that course.
34. It seems to me that the availability of an alternative remedy in SIAC is also a point of objection to the appellants' pursuit of their challenge to Ouseley J's approach to PII. It means that the legal landscape has changed and that the question whether the judge's approach was correct at the time it was adopted has become academic. The fact that SIAC would now be able to consider all the material in a closed material procedure must be a relevant consideration, tending to reduce the public interest in favour of disclosure in the interests of justice, even in relation to a PII issue arising in the context of judicial review proceedings: judicial review is not to be considered in a vacuum. This also makes it unlikely, in my view, that pursuit of the present appeals could lead to the appellants securing greater disclosure through the ordinary PII process that was allowed by Ouseley J".
"39. This judgment may be relevant not only in relation to similar cases pending in the Court of Appeal but also for judges of the Administrative Court when considering whether to stay judicial review proceedings at first instance (including Ignaoua) raising similar issues. I do not think that there are any restrictions on its citation but for the avoidance of doubt I give permission for it to be cited".
Conclusions
Mr Justice Irwin: