9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) demonstration of actual violations of Article 15 by the United Kingdom. None are demonstrated. That aside, given the outcome in this court of A, X, Y, we must I think proceed on the footing that the Derogation Order was lawful. On that basis I cannot think it right that within the four corners of these appeals we should contemplate, and pass judgment on, a contingent set of circumstances on one view of which the Derogation Order might, after all, turn out not to be lawful. This argument is, I fear, nothing but an attempt to municipalise our obligation under CAT Article 15 and that is something that only the legislature can do. Postscript 274. Before leaving the torture issue, I should notice the fact that Mr Emmerson was at a late stage inclined to advance a submission to the effect that CAT Article 15 expressed a principle of international customary law, and as such was part of the fabric of the common law. That would have required a very substantial enquiry, legal and historical. The ground had not been prepared for it, and we did not permit Mr Emmerson to embark upon it. JURISDICTION 275. As I have shown, this point only arises in the cases of Ajouaou and F. I will not set out the statutory materials again. In my judgment SIAC were right to hold that the revocation of the certificates by the Secretary of State deprived them of jurisdiction to continue to hear the appeals. My reasons are as follows. First, s.25(2)(a) is cast in the present tense. SIAC are thus obliged to look at the case as at the date it comes before them. But if there is then no longer an extant certificate, the exercise simply cannot be performed. Either s.25(2)(a) has to be understood as referring to some other date, or it must be concluded that SIAC is only to consider s.25(2)(b). Such recourses are in my judgment entirely illegitimate because they involve re-writing the statute. (I will come to HRA s.3 shortly.) Secondly, the only person competent to launch an appeal under s.25 is a "suspected international terrorist" as defined in s.21(5): "a person certified under subsection (1)". But of course a person whose certificate is revoked is no longer within the definition. Thirdly, s.26(5)(a), dealing with the review of a certificate, is expressed in just the same language as s.25(2)(a). If s.25(2)(a) bites on a revoked certificate, I should have thought that s.26(5)(a) would do the same. But no one, I think, contends for so eccentric a result. 276. In short the structure of s.25 appeals demonstrates that only an appeal against a live certificate is contemplated. As for HRA s.3, I have to say that in my view the language of s.25 and associated provisions cannot bear the amount of re-writing that would be necessary to permit an appeal against a revoked certificate, without the court legislating for itself. As regards the ECHR rights which might require an appeal against a revoked certificate, I make only two observations. First, a previously certified person who seeks to return to this country would be entitled to have a proper decision made on the merits of his claim to enter. I do not see why the fact of previous certification would entitle or require the Secretary of State to close his ears to anything the applicant might say. Secondly, I am not clearly persuaded that the terms of s.21(9) would necessarily suffice to prevent a later challenge, in the case of a person whose certificate had been revoked, to the legal merits of his past detention under s.23. But we have not heard full argument on the question and I express no concluded view. INVESTIGATION AND DISCLOSURE 277. These are Mr Gill's remaining points. First, I would with respect reject out of hand the suggestion that the Secretary of State is required to undertake positive investigations, in the case of any prospective detainee, as to whether any other country was prepared to receive him before his detention could be justified on that footing that he could not be removed from the United Kingdom. I cannot see any potential legal source of such an obligation. I cannot think that such a prospective obligation could live with the Secretary of State's duty under s.21 which in some cases might require him to act urgently. The submission is not in the real world. 278. As for Mr Gill's broader submissions on investigation and disclosure, SIAC dealt at some length with such concerns as were expressed before it. I must set out what they said in the open generic determination: http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 70/113