9.11.2017
A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004)
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Lord Justice Pill:
1. These are appeals, by a number of persons detained pursuant to the certificates, against the refusal of
the Special Immigration Appeals Commission ("the Commission") to cancel certificates issued by the
Secretary of State for the Home Department ("the Secretary of State") under Section 21 of the AntiTerrorism, Crime and Security Act 2001 ("the 2001 Act"). Two of the Appellants, Ajouaou and F, had
ceased to be detained because they had gone to another country. Their certificates were revoked. They
launched fresh appeals from abroad against the original certification. The Commission decided that it
had no jurisdiction to hear those appeals, a decision which is challenged in this court.
2. On 29 October 2003, the Commission, Ouseley J presiding, delivered what has been described as a
generic judgment. It included a consideration of general points arising from the legality of the
certificates. It also included a detailed summary of the evidence relied on by the parties. A number of
individual determinations, one for each of the Appellants, were handed down on the same day. Some
bore the name of Ouseley J as Chairman of the Commission and others of Collins J as Chairman.
There had been a series of hearings over a period of four months. Collins J presided at some of them
and Ouseley J at others.
3. Apart from the jurisdictional issue, three general issues are raised for the consideration of this court. It
is submitted that, on each of them, the Commission has misdirected itself in its approach to the
evidence. Mr Emmerson QC, for the Appellants other than C & D, and Mr Gill QC for C & D, submit
that if there is a finding in favour of the Appellants on any one of the three issues, remission to the
Commission for re-hearing of the cases is required. It is accepted that if the generic points raised fail,
there is nothing in the individual cases capable of amounting to a point of law, save as mentioned in
the following paragraph.
4. For the Secretary of State, Mr Burnett QC submitted initially that there could be circumstances in
which, in that event, this court could resolve individual cases finally. That submission has not been
maintained and, in my view, remission would be necessary to allow the Commission to consider the
evidence afresh. A general point is also taken upon the procedure for disclosure of documents by the
Respondent and a discrete point is taken, in the case of D, upon the procedure followed before the
Commission in his case. A further point is taken in relation to the Refugee Convention.
The statutory background
5. The United Kingdom is of course party to the European Convention on Human Rights ("the
Convention"). Article 5 provides:
1. Everyone has the right to liberty and security of person. No one shall be deprived of his
liberty save in the following cases and in accordance with a procedure prescribed by law.
A series of cases is specified including, of course, "the lawful detention of a person after conviction by
a competent court" (5.(1)(a)). Another case, at Article 5.1(f) is:
"The lawful arrest or detention of a person to prevent his effecting an unauthorised entry
into the country or of a person against whom action is being taken with a view to
deportation or extradition."
Article 5 (4) provides:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful."
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