9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) cumbersome in its effect. If SIAC concludes that there are "reasonable grounds", (a) it would be much simpler if the certificate stands, and (b) it would seem rather a waste of time and money if SIAC had to go on to consider whether or not there were "reasonable grounds" at the date of the issue of the certificate. If SIAC concludes that there are not reasonable grounds, consideration of whether there were such grounds is pointless: the certificate would have to be revoked anyway. 347. It is said that the person against whom a certificate has been issued may wish to obtain damages because the certificate should never have been issued. However, in many cases whether the Secretary of State may not have had reasonable grounds, SIAC will decide that no reasonable grounds exist at the date of the hearing; the certificate will then be revoked under s25(2)(a), rendering it unnecessary to consider whether the Secretary of State had reasonable grounds when he issued the certificate. 348. The most powerful argument in favour of SIAC's (and the parties') construction of s25(2)(b), in my view, is that it would be wrong to interpret it in such a way as to prevent a person against whom a certificate has been issued from contending that, even though the certificate may be justified by virtue of subsequent material, the Secretary of State ought never to have issued the certificate in the first place. This is a particularly powerful point bearing in mind the draconian effect of a s21 certificate. 349. In the event, not least because this aspect of the construction of s25(2)(b) was not the subject of argument, I will proceed on the basis that the view taken by SIAC as to the ambit of s25(2)(b) is correct, which it may well be. The rights under s25 of a person whose s21 certificate has been revoked or has lapsed 350. In its generic judgment, SIAC concluded that it was not open to a person in respect of whom a certificate had been issued to mount or pursue an appeal under s25 of the 2001 Act if the certificate had lapsed (eg by the person concerned leaving the UK) or if the Secretary of State revoked the certificate. Accordingly, SIAC concluded that it did not have jurisdiction to entertain the appeals of Mr Ajouaou or F. On this appeal, Mr Ajouaou and F, as well as the Secretary of State, contend that SIAC was wrong on this point. 351. In the absence of s3 of the 1998 Act requiring the 2001 Act to be construed in such a way as to comply with ECHR, I would have been inclined to agree with the conclusion reached by SIAC. The right of appeal granted by s25(1) is to "[a] suspected international terrorist", a term defined in s21(5) as "a person certified under subsection (1)". As a matter of ordinary language it appears to me that this means that the only persons who are given a right to appeal are those in respect of whom a certificate exists. Once the certificate in respect of a person has lapsed or is revoked, he is no longer "a suspected international terrorist" and therefore, it would seem, he would have no right to appeal under s25(1). Furthermore, if it concludes that paragraphs (a) or (b) thereof is satisfied, the primary duty of SIAC is, under subsection 25(2), to "cancel the certificate"; that is a pretty meaningless concept, at least as a matter of ordinary language, if the certificate no longer exists. 352. Nonetheless, it cannot be pretended that (even ignoring s3 of the 1998 Act) there are no arguments to the contrary. It does not involve a great straining of language to read s25(1) as applying to a person who is or was a suspected international terrorist. Furthermore, the tense used in s25(2)(b) - "should not have been issued" - and in s25(4) - "shall be treated as never having been issued" - can be said to give some support to the notion that the legislature intended a person, in respect of whom a certificate had been issued, should be able to contend that, as a matter of law, no certificate had ever been issued in respect of him. That provides a reasonable basis for supposing that the legislature could well have intended a person in respect of whom a certificate had been issued, albeit that it had lapsed or been revoked, should nonetheless be able to mount an appeal under s25. 353. There is another point which somewhat militates against SIAC's conclusion. Given that the Secretary of State can revoke a certificate at any time, it seems to me that there would be nothing to prevent him making a revocation order during the currency of the hearing of a s25 appeal, or even after the appeal had been heard and before SIAC gave its determination. In such a case, SIAC's construction would raise the question as to whether its jurisdiction could effectively be removed by the Secretary of State's unilateral act of revoking the certificate. If such revocation would result in SIAC's jurisdiction coming to an end (as SIAC held), that is unattractive. It would mean that, once an appeal was launched, its http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 82/113