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
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