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The certification of an exclusion direction did not have the effect of automatically terminating judicial review proceedings proceeding at that time.
21 November 2013
Court of Appeal
Richards LJ, Sullivan LJ and Master of the Rolls
(1) The Appellant was subject to a direction made in July 2010 by the Secretary of State which excluded him from the UK on the basis that his presence was not conducive to the public good for reasons of national security. There was no right of appeal against that direction.
(2) The Appellant sought judicial review of that decision in October 2010. The case remained outstanding when, on 16 July 2013, the Secretary of State certified the exclusion direction under section 2C of the Special Immigration Appeals Commission Act 1997 (‘the 1997 Act') as inserted by section 15 of the Justice and Security Act 2013 Act (‘the 2013 Act'). The certification meant that the Appellant had a means of appeal to the Special Immigration Appeals Commission (‘SIAC'), although the necessary procedural rules are not yet in force in relation to that route of appeal. The Respondent had determined that the effect of the certification was to terminate the judicial review proceedings.
(3) By way of judicial review, the Appellant challenged the lawfulness and effect of the certification. The central issue was whether the Secretary of State's certificate had the effect of terminating the initial judicial review proceedings. The Appellant complained that the certificate issued by the Secretary of State left him without a remedy, he was unable to pursue judicial review proceedings, but was not able to pursue an alternative remedy in the form of an application to SIAC as the necessary procedural rules had not been put in place.
(4) HELD: Dealing first with the issue of whether the certificate was effective in lawfully terminating the judicial review proceedings, the Court held that in the absence of specific language the Secretary of State could not be viewed as having such an extensive power.
(5) The Court found that where an exclusion direction was certified, the statute did not prevent a judicial review application from being made. The Court recognised that once the SIAC procedural rules are in place, it is likely that judicial review will be a less appropriate course of action. Nonetheless, the 2013 Act did not purport to remove the Court's discretion as to judicial review applications made in relation to exclusion directions that had been certified.
(6) The Court determined that the 2013 Act gave the Secretary of State no power to automatically terminate judicial review proceedings through the issuing of a certificate. Given this, the Court held that the Secretary of State had acted outside her powers.
(7) The Court made clear that this did not prevent the Secretary of State from issuing a certificate merely that it meant that such a certification did not automatically terminate any judicial review proceeding at that time. The Court held that once the SIAC procedural rules were put in place, it was likely that the Court would stay judicial review proceedings, although that would be a matter for the Court at that time.
(8) The case was remitted to the Administrative Court for determination of whether the judicial review proceedings ought to continue or be stayed.
(9) The appeal was thus allowed.
 - No specific power.
 - Not remove discretion.
 - No power to terminate.
 - Outside powers.
 - Power issue certificate.
 - Stay proceedings.
 - Remitted.
 - Legal limbo.
 - Conclusion.
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