9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) prosecution would effectively be at the mercy of the Secretary of State. While one would not expect him to exercise his revocation powers capriciously, it does not seem desirable that the jurisdiction of a court of record, on so fundamental an issue as the validity of a s21 certificate, could be removed at any time at the behest of the Secretary of State. On the other hand, if SIAC's jurisdiction depended solely on the certificate being effective at the time the s25 appeal was launched, that would seem to be capable of leading to capricious results. If an appellant lodged his appeal the day before his certificate was revoked, then he could maintain it, whereas if he only launched his appeal the day after the certificate was revoked, he would be wholly disabled from bringing an appeal. 354. In these circumstances, even in the absence of s3 of the 1998 Act, I consider that there would be a powerful case for contending that a s25 appeal could be launched and/or maintained by a person in respect of whom a certificate has lapsed or been revoked by the Secretary of State. The factor which convinces me, in agreement with all the parties to the appeal, and in disagreement with SIAC, that this is in fact the correct analysis, is the effect of s3 of the 1998 Act. 355. A person may have grounds for establishing that the certificate should never have been issued, relying on s25(2)(b), and/or he may seek to cancel the certificate under s25(2)(a). In the former case he may have a powerful argument, in the latter case - in light of s25(4) - a real argument, for saying that his imprisonment was unlawful. Further, the fact that a s21 certificate was issued in respect of a person could plainly affect his reputation, and even his treatment, here and overseas. The revocation, or the lapsing, of the certificate may not remove any stigma thereby attaching to him. This would be particularly true where the certificate lapsed as a result of the person going abroad. Even where the certificate was revoked by the Secretary of State, the person concerned may feel that his reputation remains detrimentally affected, not least because the Secretary of State may give no reasons for the revocation. If an appeal can be mounted under s25, and, for instance, satisfy SIAC that there are no reasonable grounds for believing that he is associated with an international terrorist group, that would, to put it at its lowest, assist him in rehabilitating his reputation. 356. In principle, it therefore appears to me that a person who has been certified should be able to challenge the certificate (and at least call into question his consequent imprisonment) in court - see ECHR Article 6(1).) He cannot do so save by an appeal under s25 - see s21(8) and (9) of the 2001 Act. In Fayed -v- The United Kingdom (1994) 18 EHRR 393 at paragraph 58, the European Court of Human Rights ("ECtHR") after mentioning ECHR Article 6(1), referred, with obvious approval, to the fact that the UK "did not dispute the existence and 'civil' character of the right under English law to a good reputation" in light of earlier decisions of the ECtHR. (In that case, the point did not in fact assist the applicants, because, as the ECtHR went on to explain in the succeeding paragraphs of its judgment, the applicants' complaint related to the activities of its inspectors, who carried out an investigative, and not a determinative role.) Accordingly, it appears to me that ECHR Article 6(1) strongly, indeed conclusively, supports the argument mounted by the parties against SIAC's decision on this issue. 357. Having reached the conclusion that a person is not prevented from mounting an appeal under s25 by virtue of the fact that his certificate lapses or is revoked, that is not quite the end of this discussion. SIAC appears to have taken the view that, if this argument was correct, it could not consider the issue raised by s25(2)(a) on an appeal by such a person, and that it was limited to considering his appeal under s25(2)(b). That view is shared by the appellants in these proceedings. 358. I do not consider that that is necessarily right. If, as appears to me to be correct for the reasons I have given, s25(1) applies not merely to a person who is, but also to a person who has been, certified under s21, then no immediately obvious reason why, as a matter of principle or in the light of its language, s25(2)(a) cannot apply to both types of person. On the face of it, SIAC can consider "that there are no reasonable grounds for a belief or suspicion of the kind referred to in s21(1)(a) or (b)" in respect of a person against whom a s21 certificate was issued, but subsequently revoked or allowed to lapse. As with a person against whom a certificate still exists, the question for SIAC is not whether, at the time the certificate was issued, there were such reason grounds; it is whether such reasonable grounds exist when the matter is before SIAC. It may well be that the Secretary of State will stop collecting information in respect of a person, once a certificate lapses or is revoked, but I think it questionable whether it is a strong enough a factor to justify concluding that s25(2)(a) should not be given its natural meaning in relation to an appeal brought by such a person. http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 83/113