9.11.2017
A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004)
adverse effect upon the person's reputation. There is no requirement to give reasons for the revocation
so that the person will not know whether he should never have been certified or whether the revocation
was for another reason. Re-entry to the United Kingdom would be likely to be opposed by the
Secretary of State and the person would, in the absence of a right to appeal to the Commission, be
required to challenge the refusal of leave to enter and a decision to exclude by judicial review. There
are weighty reasons, it is submitted and I agree, why the statute should be construed, if possible, so as
to permit a right of appeal.
144. The impediment is in the provision in Section 25(1) that it is "a suspected international terrorist" who
may appeal and a suspected international terrorist is defined in Section 21 as a person certified under
the section. Upon the revocation of the certificate the person seeking a hearing before the Commission
is no longer a suspected international terrorist.
145. Mr Husain, for the Appellants, has made submissions on the wording of Section 25(1). It refers not to
an appeal against a certificate but an appeal against "certification". The right of appeal in Section 25(1)
is against the "certification" and not against a subsisting certificate.
146. Moreover, when the Commission is deciding whether to cancel a certificate under Section 25(1), it is
entitled, under Section 25(1)(b) to consider whether the certificate should have been issued at all and,
if it is cancelled, the certificate shall be treated as never having been issued (Section 21(4)). A
retrospective assessment of evidence and a retrospective effect following cancellation is thereby
contemplated. Given the presence of that power to consider past events, it is unlikely that the right of
appeal is confined as the Commission found.
147. If it had been intended to remove the right of access in such a serious matter, plainer language would
have been necessary. While the Section 25(1) appeal might have been expressed to be against the
"issue of the certificate" rather than "certification" to put the issue beyond doubt in favour of
jurisdiction, I would have expected a word other than "certification" to have been used in Section
25(1) if it had been intended that the appeal could only be against an existing certificate as distinct
from the act of certification. It is not necessary to remain within the definition of "suspected
international terrorist" to have a right of appeal against certification. I read Section 25(1) as meaning
that a person who has been certified as a suspected international terrorist may appeal against that
certification.
148. If a right of appeal exists, the grounds in Section 25(2)(a) and (b) can be relied on. I see no reason to
make a distinction and limit the right to sub-paragraph (b). If the Commission held otherwise in
paragraph 34, that finding was in my view in error.
149. The Commission should have accepted jurisdiction.
Other issues
150. On the other issues mentioned in paragraph 4 of this judgment I have had the advantage of reading the
judgment of Laws LJ in draft and I agree with his conclusions. There is also to be a closed judgment
following submissions made in closed session. As Mr Burnett said in open court, it does not impinge
on the three general issues considered in this judgment.
151. Save as to jurisdiction in the cases of Ajouaou and F, I would dismiss these appeals. That includes the
appeals of Ajouaou and F which the Commission considered in case it was wrong on the question of
jurisdiction.
LORD JUSTICE LAWS:
INTRODUCTORY
152. These appeals are about executive detention without limit of time. The skeleton argument prepared by
Mr Emmerson QC and his junior, counsel for all the appellants save C and D, cites this observation by
Lord Bingham of Cornhill:
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html
30/113
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