Ignaoua, R (On the Application Of) v The Secretary of State for the Home Department [2014] EWHC 1382 (Admin)

[2014] EWHC 1382 (Admin)Case Nos: Case 1: CO/11280/2010Case 2: CO/8380/2013 &Case 3: CO/666/2012
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 8 th May 2014
Before
MR JUSTICE OUSELEYMR JUSTICE IRWIN
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Stephanie Harrison QC and Amanda Weston (instructed by Birnberg Peirce & Partners) for Claimant, Case 1Sonali Naik (instructed by Birnberg Peirce & Partners) for Claimant, Case 2Amanda Weston (instructed by Birnberg Peirce & Partners) for Claimant, Case 3Rory Phillips QC & Julian Blake (instructed by The Treasury Solicitor) for DefendantStephen Cragg QC, Special Advocate (instructed by Special Advocates' Support Office)Hearing Hearing dates: 21st March 2013
Judgment
[1]The three applications before us require decisions as to how the claims are to proceed in the light of s6 of the Justice and Security Act 2013, which permits Closed Material Procedures, CMP, to be ordered in civil claims including judicial review, and s15 of that Act, which amended the Special Immigration Appeals Commission Act 1997, introducing into it s2C and s2D, which enable the Secretary of State for the Home Department (SSHD) to certify exclusion and citizenship decisions. Such a certificate enables the recipient of the adverse decision to apply to the Commission, SIAC, to have it set aside. SIAC Rules provide for a form of CMP.[2]Ignaoua - is a Tunisian national who claimed asylum in the UK in 2004, but was extradited to Italy to face trial on terrorist related charges in 2008 before a decision was made on that claim. He was acquitted in 2010. The SSHD excluded him from the UK in October 2010, on the grounds that his return would not be conducive to the public good for reasons of national security. It was alleged that he was involved in facilitation and radicalisation activities for terrorist purposes. The SSHD refused to accept responsibility for determining his claim under Dublin II, and the Italian Government did not respond to that refusal. He brought judicial review proceedings in 2010 challenging the lawfulness of the exclusion decision, the failure to determine his asylum application and to readmit him, and the refusal to accept responsibility under Dublin II.[3]The question of how the material relied on by the SSHD might be considered, the disclosure of which it was said would breach national security or perhaps some other protected interest, led to a number of delays and hearings while Al Rawi v Security Service [2011] 3 UKSC 34; [2012] 1 AC 531 was resolved, and then its successor decision in AHK and Others v SSHD [2012] EWHC 1117 (Admin).[4]In those latter four cases concerning the refusals of naturalisation for want of good character, the basis for which was wholly or largely undisclosed but usually included national security reasons, I held that, in the absence of statutory provision, there could be no CMP in judicial review, save to the extent inherent in the PII process, and that, in the absence of the full information upon which the SSHD relied in taking the decision, the Claimant would be bound to fail in showing that her decision was irrational or ignored material considerations. I held that the cases should proceed through the PII process. I affirmed that conclusion after the PII process and yet further argument, in AHK and Others v SSHD [2013] EWHC 14526 (Admin), in June 2013, shortly before the Justice and Security Bill was enacted.[5]I granted permission to appeal to the Court of Appeal. On 21 February 2014, Richards LJ stayed the appeals pending pursuit by the appellants of the alternative route which the 2013 Act had opened for them of making applications to SIAC, [2104] EWCA Civ 151; see especially paragraphs 37-38. He recognised that his decision would be relevant to other cases in the Administrative court raising similar issues, including specifically that of Ignaoua, paragraph 39, a case with which he was already familiar.[6]To return to what happened in Ignaoua’s own case, an adjourned PII hearing was listed for 18 July 2013; I refused the SSHD’s application for its adjournment since the case needed to make progress, but the SSHD issued a certificate under s2C of the 1997 SIAC Act, as amended by s15 of the 2013 Act. This enabled her, she thought, to terminate the Administrative Court proceedings, leaving Ignaoua to pursue his new remedy in SIAC. The PII hearing was adjourned so that the lawfulness of the certificate, to the extent it was said to have that effect, could be challenged. Cranston J upheld its validity; Ignaoua v SSHD [2013] EWHC 2512 (Admin), but the Court of Appeal held that the transitional provisions in paragraph 4 of Schedule 3 to the 2013 Act did not permit the SSHD to make an Order which gave to the certificate which the SSHD was empowered to issue, the effect of terminating judicial review proceedings; [2013] EWCA Civ 1498; now also reported at [2014] 1 WLR 651. Richards LJ with whom Lord Dyson MR and Sullivan LJ agreed. The certificate otherwise remains in force. In effect that challenge is at an end, as was confirmed at an earlier directions hearing on 17 December 2013, an Order to Irwin J dated 24 January 2014 and was reconfirmed before us.[7]The upshot is that it is now for this Court to decide whether to stay the judicial review proceedings, as the SSHD contends should happen, which would mean that the SIAC remedy would be pursued, or to allow the judicial review proceedings to continue. Mr Phillips QC for the SSHD submitted that it was all but inevitable that this latter course would lead to the invocation of the CMP in s6 of the 2013 Act. Ms Harrison contended that, even if that might be so, nothing should be done, for specific and general reasons, to interfere with the previously intended progress of this case, now long delayed, through the PII procedure, for which all was in readiness and had been since 16 July 2013. It was only after the effectiveness of that had been ascertained that the Claimant should be required to consider whether to accept the SIAC remedy or the s6 CMP, if that had become the regrettably necessary alternative.[8]HN is a Colombian national whose application for naturalisation was refused on the grounds that the SSHD was not satisfied that he was of good character, because of his alleged membership of the Revolutionary Armed Forces of Colombia, FARC. He commenced judicial review proceedings in July 2013. He refused to agree to a stay of proceedings at least until after the PII process had been concluded in his case. Permission has not yet been granted; it was adjourned to allow consideration of a stay in the expectation that the case would be certified by the SSHD. The SSHD certified the case pursuant to s2D on 17 March 2014. Ms Naik, who appeared for him, adopted Ms Harrison’s submissions but was also concerned, on behalf of her privately funded client, about possible differences, in the availability of costs orders in favour of a successful claimant, between SIAC proceedings and judicial review proceedings in the High Court. She was also concerned to limit her client’s liability to pay costs were he to fail, through a Protected Costs Order.[9]AA is an Algerian national who arrived in the UK in 1995, and was granted ILR as a refugee in 2004 on appeal. His naturalisation was refused in 2011 on the basis of a want of good character, but no reasons were given, not even that it was because of national security. In 2003, he had been arrested but was not charged in relation to the “ricin” plot. He was sentenced to 3 months imprisonment for possessing a false passport. His judicial review proceedings, lodged in January 2012, were stayed behind the lead cases of AHK and Others v SSHD. No further material has been served. On 17 March 2014, the decision was certified under s2D of the SIAC Act. AA, who suffers from paranoid schizophrenia, has concluded that it is unlikely that he would benefit from a PII hearing. He supports the submissions made by Ms Harrison, but in his own case, he has accepted that his application for a review should proceed in SIAC. There is nothing more to be said about that case.

The statutory and legal framework

[10]I have described above briefly the somewhat bleak consequences for Claimants of the absence of a CMP in this type of case, if the decision reached in AHK and Others is correct; they are explained and summarised in paragraphs 5-13 of my 2013 judgment. S6, and following, of the Justice and Security Act 2013 provide a solution for such cases which are tried within the High Court.[11]S6 provides: “(1) The court seised of relevant civil proceedings may make a declaration that the proceedings are proceedings in which a closed material application may be made to the court. (2) The court may make such a declaration—(a) on the application of— (i) the Secretary of State (whether or not the Secretary of State is a party to the proceedings), or (ii) any party to the proceedings, or(b) of its own motion. (3) The court may make such a declaration if it considers that the following two conditions are met. (4) The first condition is that— (a) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or (b) a party to the proceedings would be required to make such a disclosure were it not for one or more of the following— (i) the possibility of a claim for public interest immunity in relation to the material, (ii) the fact that there would be no requirement to disclose if the party chose not to rely on the material, (iii) section 17(1) of the Regulation of Investigatory Powers Act 2000 (exclusion for intercept material), (iv) any other enactment that would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section. (5) The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration. (6) The two conditions are met if the court considers that they are met in relation to any material that would be required to be disclosed in the course of the proceedings (and an application under subsection (2)(a) need not be based on all of the material that might meet the conditions or on material that the applicant would be required to disclose). (7) The court must not consider an application by the Secretary of State under subsection (2)(a) unless it is satisfied that the Secretary of State has, before making the application, considered whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application is based. (11) “sensitive material” means material the disclosure of which would be damaging to the interests of national security”. (i) the Secretary of State (whether or not the Secretary of State is a party to the proceedings), or (ii) any party to the proceedings, or (a) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or (b) a party to the proceedings would be required to make such a disclosure were it not for one or more of the following— (i) the possibility of a claim for public interest immunity in relation to the material, (ii) the fact that there would be no requirement to disclose if the party chose not to rely on the material, (iii) section 17(1) of the Regulation of Investigatory Powers Act 2000 (exclusion for intercept material), (iv) any other enactment that would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section.[12]It is to be noted that the definition of “sensitive material” is confined to that which affects national security. Judicial review proceedings are among the “relevant civil proceedings”.[13]S7 requires the court which has made a declaration under s6(1) to keep that under review so as to see that the second condition, in s6(5), continues to be satisfied. The declaration can be revoked. S8 enables rules to be made which govern how a CMP under a s6 declaration is to be conducted; these are in CPR Part 82. For present purposes, it is sufficient if the scope of the rules is set out; they do in fact set out what the Act requires. The relevant person, here the SSHD, must have the opportunity to apply to the Court for permission not to disclose relevant material, in the absence of the other parties. Then, s8 (1) continues in subsections (c) – (e) that the rules must provide: “(c) that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security, (d) that, if permission is given by the court not to disclose material, it must consider requiring the relevant person to provide a summary of the material to every other party to the proceedings (and every other party’s legal representative), (e) that the court is required to ensure that such a summary does not contain material the disclosure of which would be damaging to the interests of national security”.[14]S15 of the 2013 Act, which deals with the alternative route, amends the SIAC Act 1997 by the addition of s2C and s2D. The first deals with exclusion decisions and the second with certain naturalisation and citizenship decisions.[15]S2C provides: “(1) Subsection (2) applies in relation to any direction about the exclusion of a non-EEA national from the United Kingdom which—(a) is made by the Secretary of State wholly or partly on the ground that the exclusion from the United Kingdom of the non-EEA national is conducive to the public good,(b) is not subject to a right of appeal, and(c) is certified by the Secretary of State as a direction that was made wholly or partly in reliance on information which, in the opinion of the Secretary of State, should not be made public— (i) in the interests of national security, (ii) in the interests of the relationship between the United Kingdom and another country, or (iii) otherwise in the public interest. (2) The non-EEA national to whom the direction relates may apply to the Special Immigration Appeals Commission to set aside the direction. (3) In determining whether the direction should be set aside, the Commission must apply the principles which would be applied in judicial review proceedings. (4) If the Commission decides that the direction should be set aside, it may make any such order, or give any such relief, as may be made or given in judicial review proceedings. (5) In this section— “non-EEA national” means any person who is not a national of an EEA state, and references in this section to the Secretary of State are to the Secretary of State acting in person”. (a) is made by the Secretary of State wholly or partly on the ground that the exclusion from the United Kingdom of the non-EEA national is conducive to the public good, (c) is certified by the Secretary of State as a direction that was made wholly or partly in reliance on information which, in the opinion of the Secretary of State, should not be made public— (i) in the interests of national security, (ii) in the interests of the relationship between the United Kingdom and another country, or (iii) otherwise in the public interest. (ii) in the interests of the relationship between the United Kingdom and another country, or “non-EEA national” means any person who is not a national of an EEA state,[16]S2D is in materially similar terms save that it deals with refusals of naturalisation and citizenship, rather than exclusions.[17]The SIAC Procedure Rules SI 2003 No. 1034 provide in rule 4: “(1) When exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest. (2) Where these Rules require information not to be disclosed contrary to the public interest, that requirement is to be interpreted in accordance with paragraph (1). (3) Subject to paragraphs (1) and (2), the Commission must satisfy itself that the material available to it enables it properly to determine proceedings”.[18]One problem of the more restricted scope of the CMP under s6, restricted as it is to national security issues, was discussed by Irwin J in CF v the Security Service and Others and Mohamed v The Foreign and Commonwealth Office and Others [2013] EWHC 3402 (QB), paragraphs 56 – 58.[19]Schedule 3 paragraph 4 to the 2013 Act permitted a statutory instrument to provide for the application of s15 to any direction or decision of the SSHD made before the commencement date of s15, 25 June 2013. Paragraph 4(2) permitted the order to provide for the SSHD to issue a certificate under s15 in respect of such decisions and to provide for “(b) the termination of any judicial review proceedings, or proceedings on appeal from such proceedings, which relate to a direction or decision which is so certified (whether such proceedings began before, on or after the section 15 commencement day).[20]The Justice and Security Act 2013 (Commencement, Transitional and Saving Provisions) Order SI 2013 No 482, in paragraph 4, provided for certification and that certification had the effect of terminating any judicial review proceedings or proceedings on appeal relating to the certified decision. It was that latter provision which was held to be ultra vires in Ignaoua, above. Richards LJ said at paragraphs 30 and 31 of that case:
“30. In the absence of lawful provision for termination, the making of a certificate has no effect on existing judicial review proceedings. They continue in being unless and until the court orders otherwise. Once the SIAC procedural rules are in place, I think it likely that the court will decide to stay existing proceedings for much the same reasons as it is likely to refuse permission for a new judicial review application in a post-commencement case (see para [24] above). Again, however, that is a discretionary decision for the court in the light of the circumstances of the individual case. 31. Since the appellant’s judicial review challenge to the exclusion decision has not been terminated by the making of a certificate, I would remit the case to the Administrative Court to determine, in the light of up to date information about the procedural position within SIAC, whether the judicial review proceedings should be stayed or be allowed to continue.”
[21]Accordingly that is how the matter comes before us. The decisions remain certified. No application has yet been made for a s6 declaration since it is the SSHD’s case that these proceedings should be stayed by the Court, leaving the Claimants to pursue their remedy in SIAC. An application for a s6 declaration would be certain, in my view, should the stay be refused. The parties agreed before us that the question of stay or no should be measured against the test of whether a stay was “in the interests of the fair and effective administration of justice”, adapting the words of s6(5), albeit that they are not directly applicable.[22]This Court has the benefit of guidance from the Court of Appeal. First, it appears in the judgment in Ignaoua, at paragraph 24: “In practice, once the relevant SIAC procedural rules are in force, it is likely that judicial review will be perceived as a less attractive or appropriate option than an application to SIAC under section 2C of the 1997 Act, especially in the light of the observations of Ouseley J in R (AHK) v Secretary of State for the Home Department [2012] EWHC 1117 (Admin), in particular at paras [57]-[64], as to the impossibility or improbability of a claimant succeeding in a judicial review of this kind in the absence of a closed material procedure. In any event, the court itself is likely to refuse permission for judicial review in such a case on the ground that an application to SIAC provides an appropriate alternative remedy. That, however, is a discretionary decision for the court in the light of the circumstances of the individual case”.[23]Second it comes from the judgment of Richards LJ staying the appeals in AHK and Others. This decision enabled them to pursue reviews in SIAC, where the relevant material would be produced to the Special Advocates, even if it would not have been disclosed to the Claimant as a result of PII hearings, affording such opportunities of success as that then gave them, instead of their losing without any examination of the true strength of undisclosed material, if my decisions were right.[24]Richards LJ, paragraph 1, described the central issue before him as being “whether the appeals should be stayed pending pursuit by the appellants of an alternative remedy now available to them by way of applications to SIAC.”[25]In paragraph 33-34, Richards LJ said: “33. In my view the appellants’ “wait and see” approach in relation to the pursuit of proceedings in SIAC is wrong in principle. I accept Mr Phillips’s submission that the provisions of the 2013 Act allowing for the certification of decisions of this kind and the bringing of challenges to them in SIAC are intended to cure the problems identified by Ouseley J and to provide an effective and appropriate alternative to judicial renew for the handling of such cases. It is true that, as the court pointed out in Ignaoua, Parliament left applicants with a choice between SIAC proceedings or judicial review in the Administrative Court, but that does not mean that applicants can properly pursue both routes, and in particular it does not mean that they should be permitted to press ahead with judicial review proceedings as far as they can and only then fall back on SIAC as an alternative remedy. That would involve both delay and a waste of court resources. If the alternative remedy in SIAC is to be pursued it should be pursued expeditiously. Different considerations might arise if the appellants wished to limit themselves to the existing judicial review proceedings and forgo the possibility of an application to SIAC. None of them, however, suggested that they wished to adopt that course. 34. It seems to me that the availability of an alternative remedy in SIAC is also a point of objection to the appellants’ pursuit of their challenge to Ouseley J’s approach to PII. It means that the legal landscape has changed and that the question whether the judge’s approach was correct at the time it was adopted has become academic. The fact that SIAC would now be able to consider all the material in a closed material procedure must be a relevant consideration, tending to reduce the public interest in favour of disclosure in the interests of justice, even in relation to a PII issue arising in the context of judicial review proceedings: judicial review is not to be considered in a vacuum. This also makes it unlikely, in my view, that pursuit of the present appeals could lead to the appellants securing greater disclosure through the ordinary PII process that was allowed by Ouseley J”.[26]He rejected an argument that the appeal should continue since it might later strengthen the appellants’ hands in SIAC. Finally he added: “39. This judgment may be relevant not only in relation to similar cases pending in the Court of Appeal but also for judges of the Administrative Court when considering whether to stay judicial review proceedings at first instance (including Ignaoua) raising similar issues. I do not think that there are any restrictions on its citation but for the avoidance of doubt I give permission for it to be cited”.[27]In my judgment, parties and the Court must give very considerable weight to that guidance.

Conclusions

[28]In reality, the decision comes down to quite narrow issues. As it is only sensible to suppose that the SSHD would seek a declaration under s6 if the cases were not stayed, and it is difficult to see a basis upon which that could be refused, the first question is whether these cases should follow the s6 route or the SIAC route.[29]First, the legislative steer is of some weight: a specific provision was made enabling this type of case to go to SIAC, rather than to stay in the Administrative Court. The subject matter is very much within SIAC’s remit. Indeed, the legislative steer envisages that existing proceedings would be terminated by some test or mechanism, as yet lawfully to be devised.[30]Second, the expectation of the Court of Appeal in Ignaoua and the more so its guidance in AHK and Others points to the suitability of SIAC as an alternative remedy and hence to the application of the principle that judicial review in the Administrative Court should not be pursued instead. At times the Claimants’ arguments seemed to border on a back door challenge to the reasons for the stays ordered by the Court of Appeal.[31]Third, there are advantages to the SIAC route in its experience and expertise in establishing whether material should be protected or not, and in handling the material if it is. The tests for disclosure as between SIAC rule 4 and s8 of the 2013 Act and Part 82 are not different; neither contains a requirement for the disclosure of a gist or summary notwithstanding the risk to the protected interest that would create; neither permits a balance to be struck between fairness to a Claimant in seeing undisclosed material and the avoidance of harm to the protected interest. If the justification put forward by the SSHD for withholding material from the Claimant is not made out in terms of the protected interest, it will be disclosed as it would be under the s6 procedure. To the extent that the justification is made out and so material is not disclosed, then it will be considered by the Commission as it would be by the High Court under s6. The SIAC constitution is strengthened however by the presence of the expert lay member for that purpose, and by the presence of the UTIAC Judge, for this area of law.[32]Paradoxically, where it is the Claimant who needs the Court to see all the relevant material to have a chance of success in the review, the restrictions on s6 work to the Claimant’s disadvantage, and the greater the protection or opportunity for the Claimant in SIAC. In SIAC, all relevant material would be disclosed to the Special Advocate and to the Commission; judicial review in effect by SIAC based on all the relevant material would follow. In the s6 closed procedure, as Irwin J discussed in CF and Mohamed, the Court would not see PII protected material if it were protected from disclosure for reasons other than national security, that is for the protection of the other interests protected under the SIAC rules. This would mean that the Court could not take that material into account, and the Claimants would still suffer inevitable defeat as the Court would still lack the full material necessary to review the decision.[33]I should mention at this point that both Mr Phillips and Mr Cragg QC, who appeared as Special Advocate, though there was no closed hearing, submitted that the Court should not consider the closed material in deciding whether or not to order a stay of Administrative Court proceedings. Ms Harrison was inclined to the opposite view. However, I am satisfied that the Court should not consider closed material as part of its decision on whether a stay should be ordered. That would be to introduce a CMP for part of a case without a statutory basis; it could be material to the decision, but one party would not know the full reasoning of the judge.[34]Fourth, it is difficult to see what disadvantages there are to SIAC dealing with the claims. They will continue to be presided over by a High Court Judge. Sections 2C and D make it clear that it is judicial review principles which will apply.[35]I see no reason to suppose that cases would proceed more quickly in the Administrative Court than in SIAC, or that transfer of existing cases would put them back in a SIAC queue, adding to the delays experienced thus far. I add that s6 and Part 82 have yet to be worked through in an actual case, and appear more complex than SIAC, and SIAC is well used to dealing with its own procedures, established and worked through. I do not see any real duplication of costs since the work done thus far needed to be done, whichever route the cases took in the future. What would probably add time and cost is to pursue the suggestion that the cases go through a PII process for a stay then to be considered, with the probability that there would be some duplication of that work in SIAC or under s6.[36]Ms Harrison points out that a case which enters the s6 CMP procedure may come out of it under s7, whereas once a case enters SIAC, it is the duty of SIAC to see it through to the end. I am not clear as to what practical drawback that creates. If there is significant closed material to be considered in a s6 procedure, it is difficult to see in what circumstances, the procedure would sensibly be revoked. It is particularly difficult to see why that would happen in a case in which the procedure was necessary for the Claimants to succeed. But if there were to be no or no significant closed material in a case in SIAC, no or no significant part would take place in closed. The open procedure would be the same.[37]Although there is no procedure for interim relief in SIAC, that is of no consequence. If the SSHD proposes to act unlawfully while proceedings are being taken in the High Court, perhaps for reasons unconnected with the proceedings themselves, a challenge can be brought in the High Court. It may or may not need to be brought in new proceedings, but it is not difficult to envisage circumstances in which it would be more satisfactorily brought in fresh proceedings. Likewise, if interim relief were required while SIAC proceedings were pending, whether because of them or not, it would be because of some arguably unlawful act on the part of the SSHD other than making the decision being challenged in SIAC. Fresh proceedings to challenge that further act of unlawfulness could be brought in the High Court; the stay on these proceedings would not affect that. And as the stay does not terminate proceedings, it could be lifted for that limited purpose were that necessary. If a case did require consideration of interim relief directly related to the subject matter of the proceedings, that might be a reason for refusing a stay or refusing one until after that issue had been concluded, or even for lifting the stay temporarily. But that is not the position here.[38]Indeed, there is an advantage for a losing Claimant, particularly privately funded as is HN. S2C provides only for relief to be given if the direction is set aside. This enables a successful claimant to claim costs from the SSHD, as would be the case in the High Court. But it does not work the other way round. SIAC has no jurisdiction to award costs, as all before us agreed, in favour of a successful SSHD against an unsuccessful Claimant. That put at rest the concerns raised by Ms Naik. It also dealt with the question of whether the absence of provision in SIAC for a PCO favoured continuation in the High Court, where it might be ordered – though I am not at all clear that this is a case for a PCO anyway. However, all that said, the advantages of the SIAC route cannot be very large, since the exclusion of a case involving an EEA national from s2C, means that such a case would be governed by the s6 route in the High Court, if the relevant conditions were satisfied.[39]Accordingly, I conclude that the cases should be stayed, so that they can proceed in SIAC. The balance of advantage, in fairness and in the effective administration of justice lies in that course of action.[40]I do not accept that, if these cases are to be stayed, they should only be stayed after the PII process. Ms Harrison expressed concern that Ignaoua had been very close to a PII hearing, that it had been delayed by a certificate which unlawfully purported to terminate proceedings, and that it was unfair for him to have to start again, as it were, in SIAC, when a hearing date for the PII could be quickly arranged in the Administrative Court. I am satisfied that the relevant hearing could, and that either of us would direct that it should, be brought on quickly wherever the case proceeds; I have sympathy with the point that the transfer should not lengthen the wait, at least not unduly. But in this case, as the PII material is ready, the hearing into what should be disclosed can proceed quickly regardless of venue.[41]Ms Harrison’s point was also more general: Claimants should be allowed to invoke the common law procedure of PII before in effect being transferred. I do not read Al Rawi as requiring PII before any CMP, if the CMP process itself includes the procedure for testing the SSHD’s assertion that the disclosure of a particular item of evidence would harm a protected interest. I see no value in it either. What is important is that under both s6 and SIAC procedure, the SSHD has to justify withholding material from the Claimant on the grounds of the harm which its disclosure would do. That is an important part of the PII process. It is the same as the s6/SIAC procedure in that respect. Although they differ in the next stage in that principles of PII, unlike those in s6 and SIAC, involve striking a balance between harm to the protected interest and the interests of fair litigation, and what I said in AHK and Others, 2012, and what Irwin J said in CF and Mohamed are in harmony, it is very difficult to see that cases in which that balance will favour harming national security will be other than very rare, in the absence of some wrongdoing which would otherwise be concealed. That largely theoretical difference does not warrant waiting until after the PII process before deciding on a stay.[42]The fact that the Minister considers the documents and signs the certificate, taking personal responsibility for it, in a PII case, is not without some significance, but the process is not undertaken on a cursory and general basis in SIAC, but on a carefully reasoned and structured basis, which has developed over the years. It would be a waste of time and money for a case to go though PII, and then through a SIAC or even s6 disclosure process. A PII process does not have to have a Special Advocate although it is clearly an advantage for there to be one.[43]I do not accept that it is only after the case has gone through a PII process that the parties can tell whether a CMP is necessary. There is plainly to be a contest about the material which the SSHD seeks to withhold. The disclosure process in SIAC or under s6 will resolve the issue of whether the SSHD has made out her claim that disclosure would harm the protected interests. If it turns out that all the material is disclosed, which might be surprising, the case will proceed in SIAC completely in the open; nothing would be lost.[44]I repeat what Irwin J said in CF and Mohamed paragraph 36 about the availability of a declaration under s6 without any PII claim being determined. This also accords with the comments of Richards LJ, in AHK who gave guidance of wider application than the four cases in front of him. Its application included Ignaoua’s case, which had not been through the PII process as he would have been aware; in paragraph 39. The SIAC procedure is seen in his judgment as an effective alternative and nothing presented to us persuaded me that it was not.[45]True it is that Richards LJ did not have any exclusion cases before him, and my decision in AHK and Others was not directed to exclusions but to refusals of naturalisation, but Richards LJ made specific inclusion in his comments on Ignaoua, which he would have known was an exclusion case. I am not persuaded that the differences between the two, but in respect of both of which Parliament has legislated for a specific SIAC route, means that a distinction for these purposes should be drawn between them.[46]I did not find help in general references to principles in Bank Mellat v HM Treasury [2013] UKSC 38. Such general references if applied in this case would be likelier to undermine the intention of Parliament. This Court is not deciding as an appellate court whether to devise a means of considering evidence which a lower court has heard in closed hearing. It is deciding which of two means of proceeding with a CMP, each established by statute, is the likelier to produce justice, given that to proceed with neither is in my view likelier than other routes to judgment to produce substantial injustice, in these cases to Claimants. It is not a device for putting material into the closed hearing which would otherwise have been available to a claimant. This is not part of a slippery slope to injustice; that would be a misconception of the role of s6 and s15. It is part of a process which enables issues which would not otherwise have been fairly triable, to be reviewed or decided by judges. This advances rather than restricts judicial oversight of the lawfulness of executive acts.[47]For those reasons, I conclude that these three cases should be stayed. This judgment should be regarded as giving general guidance as to how the Court will approach stays in certified directions and decisions which can proceed in SIAC. It can be cited, even though it is an interlocutory judgment.[48]I have accepted for the time being that HN and AA should be anonymised.[49]I agree.

Cited in 3 later judgments