Neutral Citation Number: [2017] EWCA Civ 133
Case No: T2/2015/1323 and T2/2015/1323(C)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
SC/63/2007, [2015] UKSIAC SC_63_2007
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 09/03/2017
Before :

LORD JUSTICE GROSS
LORD JUSTICE SIMON
and
LORD JUSTICE FLAUX
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Between :

	ZZ	Respondent	
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	Secretary of State for the Home Department	Appellant	

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Steven Kovats QC (instructed by the Government Legal Department) for the Appellant
Hugh Southey QC and Nick Armstrong (instructed by the Public Law Project) for the Respondent
Ashley Underwood QC and Martin Goudie QC (instructed by the Special Advocate’s Support Office) for the Special Advocate 

Hearing dates : 08 February, 2017
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Judgment Approved
Lord Justice Gross : 
INTRODUCTION
1.	This case has a long history of which a short summary will suffice. 
2.	The matter comes before this Court by way of an appeal from a judgment of SIAC dated 1st April, 2015 (“the 2015 SIAC judgment”). The Appellant (“the Secretary of State”) raises a single point as to the true construction of s.85(4) of the Nationality, Immigration and Asylum Act 2002 (“the NIAA”), submitting that SIAC erred in taking into account up to date information post-dating the decision under appeal.  The Respondent (“ZZ”) cross-appeals, contending (inter alia) that the essence of the case against ZZ had not been disclosed to him.  For our own part, the Court raised with the parties its strong and, ultimately, decisive concern that the appeal was academic, given that ZZ was re-admitted to the United Kingdom on the 18th August, 2015.  
3.	To explain the background, the starting point must be the regulations and statute in issue.  These are the Immigration (European Economic Area) Regulations 2006/1003 (“the 2006 Regulations”) and the NIAA. 
4.	The version of the 2006 Regulations, in force at the material times, provided by regulation 11(1) that a European Economic Area (“EEA”) national must be admitted to the United Kingdom if he produces on arrival a valid national identity card or passport issued by an EEA State.  However, by regulation 19(1):
“ A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if his exclusion is justified on grounds of public policy, public security or public health in accordance with regulation 21.”
Regulation 21 was in these terms:
“ (1) In this regulation a ‘relevant decision’ means an EEA decision taken on the grounds of public policy, public security or public health.
(5) Where a relevant decision is taken on grounds of public policy or public security it shall ….be taken in accordance with the following principles – 
(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;”
5.	At the material times, the NIAA provided in s.85(4) that, on an appeal from various immigration decisions, SIAC “…may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.”
6.	ZZ had dual Algerian and French nationality; he had also acquired indefinite leave to remain in the United Kingdom.  As Richards LJ observed, when giving the lead judgment of this Court dated 29th July, 2015, [2015] EWCA Civ 987, granting the Secretary of State permission to appeal to this Court, at [2]: 
 “ …ZZ previously had leave to remain in the United Kingdom and had the benefit of an EU residence card.   In August 2005, when he was out of the country, the Secretary of State cancelled his leave to remain and made an order excluding him from the United Kingdom.  That decision was not appealable. But in September 2006, when ZZ arrived in the United Kingdom from Algeria, he was refused admission and was removed to Algeria.  The refusal of admission was appealable and ZZ did indeed appeal to SIAC against it.  In 2008 SIAC dismissed the appeal.”
7.	The Open judgment of SIAC on that occasion, dated 30th July, 2008 (“the 2008 SIAC judgment”) was given by Mitting J.  At [20] – [21] of the 2008 SIAC judgment, Mitting J expressed SIAC’s central conclusions as follows:
“ 20. ….for reasons which are explained only in the closed Judgment, we are satisfied that the personal conduct of ZZ represents a genuine present and sufficiently serious threat which affects a fundamental interest of society namely its public security and that it outweighs his and their [i.e., ZZ’s wife and family’s] right to enjoy family life in the UK…..
21. For reasons which are given in the open and closed Judgments, read together, we are satisfied that the imperative grounds of public security which we have identified in the closed Judgment outweigh the compelling family circumstances of ZZ’s family so as to justify the Secretary of State’s decision to exclude him from the United Kingdom… ”
8.	Subsequently, on the 19th April, 2011, a different constitution of this Court ([2011] EWCA Civ 440) referred a question concerning procedural fairness and disclosure to the Court of Justice of the European Union (“the CJEU”).  
9.	By its judgment dated 4th June, 2013, ZZ (France) v Secretary of State for the Home Department (Case C-300/11); [2013] QB 1136, the CJEU (Grand Chamber), at [70], departing substantially from the Conclusion of the Advocate General (at [115] of his Opinion), answered the question referred to it as follows:
“  Articles 30(2) and 31 of Parliament and Council Directive 2004/38/EC, read in the light of article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as requiring the national court with jurisdiction to ensure that failure by the competent national authority to disclose to the person concerned, precisely and in full, the grounds on which a decision taken under article 27 of that Directive is based and to disclose the related evidence to him is limited to that which is strictly necessary, and that he is informed, in any event, of the essence of those grounds in a manner which takes due account of the necessary confidentiality of the evidence.”
10.	Thereafter, the matter returned to this Court ([2014] EWCA Civ 7; [2014] QB 820), which considered the CJEU judgment and summarised its meaning in the head note:
“ …in accordance with a straightforward reading of the judgment of …[the CJEU]…as a whole, the essence of the grounds on which a decision to exclude a person from a member state had always to be disclosed to that person, and such a course was a minimum requirement which could not yield to the demands of national security; that a distinction was drawn between the grounds and the related evidence on the basis of which a decision to exclude was taken, so that, where national security stood in the way of full disclosure, in order to strike an appropriate balance between the requirements flowing from national security and the requirements of the right to effective judicial protection, the manner in which the essence of the grounds was disclosed had to take due account of the necessary confidentiality of the evidence, and the evidence itself might be withheld from disclosure for reasons of national security; that the procedure had to ensure to the greatest possible extent that the adversarial principle was complied with so as to enable the person to put forward an effective defence; that the applicant had not therefore been given the minimum level of disclosure required under European Union law in the commission proceedings; and that, accordingly, the case would be remitted for a fresh determination by the commission applying the principles set out in the judgment of the Court of Justice…. ”
11.	On that occasion, in observations which, with respect, strike me as having great force, Christopher Clarke LJ said (at [41]):
“ … As Richards LJ observes the Court of Justice does not say in terms what is to happen if the essence of the grounds cannot be disclosed without also disclosing the confidential evidence.  Moreover, whilst it contemplates….that in certain cases disclosure of the evidence is liable to compromise state security in a specific manner, it does not ….consider the position if disclosure of the essence might have that effect, which appears to me a possible circumstance.”
Doubtless, these unresolved difficulties, arising from the CJEU judgment, will need to be addressed but they are for another day and not for this case.
12.	The matter was thus remitted to SIAC.  By the 2015 SIAC judgment, given by Irwin J (as he then was), SIAC allowed ZZ’s appeal.   As made clear in its judgment, SIAC considered the up to date evidence, both as to the risk ZZ posed to national security and as to his Art. 8 rights:
“ 31.  Our approach has been as follows.  Both the level of risk to national security represented by the Appellant and the degree or extent of incursion on his Article 8 rights evidently lie at the heart of this decision, and after-coming evidence on these issues affect the ‘substance’ of that decision. Moreover, in assessing whether exclusion is proportionate, we must balance the risk to national security against the impact on the Article 8 rights. It is hard to see how that could be done rationally by looking at the historic evidence as to national security and the up-to-date evidence on Article 8. That is particularly so here, given the effect of the decision of the CJEU. 
34. As all agree, we have …borne in mind the evidence as to his family life since 2006.”
13.	This approach led to the following conclusions in the 2015 SIAC judgment:
“ 93. We are confident that the Appellant was actively involved in the GIA [an Algerian extremist group], and was so involved well into 1996.  He had broad contacts with GIA extremists in Europe. His accounts as to his trips to Europe are untrue. We conclude that his trips to the Continent were as a GIA activist. He was not frank about this.
95. Until at least 1996, the Appellant maintained an association with Abu Qatada, including reasonably close contact, and at least some sympathy of ideas. He was not frank about this. 
96. We conclude, in the CLOSED case, that the Appellant was on more than one occasion in a position to obtain weapons, which would have been obtained for use in an Islamist extremist context. 
97. There is no evidence of further Islamist activity on the part of the Appellant. The absence of evidence is not conclusive evidence of the absence of such activity.  However, we consider the Appellant’s age and history over the last decades. We consider it unlikely he has been active in any Islamist organisation since 1996.
98. There is no need to repeat our findings as to the Appellant’s family. [SIAC had already concluded that ZZ’s family ties in the United Kingdom were such that they could only be outweighed by imperative considerations of national security.]
99. Despite our findings adverse to the Appellant, the passage of time, taken together with the evidence before us, both CLOSED and OPEN, means that we cannot conclude (in contrast to the previous constitution of SIAC sitting in 2008) that it is now imperative for national security that the Appellant should be excluded from the United Kingdom. ”
14.	On the 29th July, 2015, the Secretary of State obtained permission to appeal from the 2015 SIAC judgment to this Court, on the ground that SIAC erred in looking at evidence subsequent to the Secretary of State’s decision of 19th September, 2006 to refuse ZZ admission to the United Kingdom.  The ground of appeal continued:
“ …This error meant that SIAC looked at the factual position in 2015 instead of the factual position in 2006. This error caused SIAC to take account of post 2006 evidence, whereas such evidence was irrelevant to the decision under appeal. ”
15.	Following the grant of permission to the Secretary of State to appeal to this Court, ZZ, on the 6th August, 2015, sought permission to cross-appeal on two grounds.  First, that the proceedings before SIAC, culminating in the 2015 SIAC judgment, “were procedurally unfair in that ZZ was denied access to the ‘essence of the grounds’ against him.”   Permission was subsequently granted on this ground.
16.	Secondly, that the SIAC proceedings were unfair and an abuse of process “in that the Secretary of State intercepted and/or read and/or used (to assist in investigations) and/or relied on evidence wholly or partly derived from material subject to ZZ’s legal professional privilege….”.  Permission to appeal was refused on this ground, though ZZ was given permission to renew this application at the hearing before us. 
17.	In the event, as earlier recounted, on the 18th August, 2015, ZZ was re-admitted to the United Kingdom. 
AN ACADEMIC APPEAL
18.	At the very outset of the appeal, the Court raised the question that the appeal appeared to be academic, by reason of ZZ’s re-admission to the United Kingdom.  We accordingly invited submissions as to whether the appeal should be summarily dismissed on that ground, without a consideration of the merits. 
19.	In Hamnett v Essex County Council [2017] EWCA Civ 6, at [32] and following, the Court referred to a number of authorities:  R v Home Secretary, Ex p Salem [1999] 1 AC 450;  R (Bushell) v Newcastle Licensing Justices [2006] UKHL 7; [2006] 1 WLR 496; and Hutcheson v Popdog Ltd [2011] EWCA Civ 1580; [2012] 1 WLR 782 (Practice Note).  At [37], I said this:
“ Pulling the threads together, I do not, respectfully, read these authorities as suggesting any inflexible rule as regards proceedings with an appeal which has become academic between the parties. Instead, in such a case, they point to the court having a narrow discretion to proceed, to be exercised with caution – even when a point of public law of some general importance is involved.  If the only extant issue goes to costs, the Court is likely to be still more cautious before deciding to hear the appeal.”
It may be noted that in Salem (supra), Lord Slynn of Hadley had put the matter this way (at p.457):
“ … appeals which are academic should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.”
20.	All concerned responded on this topic with commendable realism.  Mr Kovats QC, for the Secretary of State, highlighted that the point in issue on the appeal went to the correctness of the approach adopted in the 2015 SIAC judgment and thus turned on the true construction of s.85(4) of the NIAA.  This was a discrete point of statutory construction and all parties were ready to proceed; indeed, Mr Kovats, as he put it, was ready to defend his corner. Those matters might be regarded as pointers in favour of proceeding.  However and very fairly, Mr Kovats acknowledged the factors pointing against the appeal proceeding. First, the appeal, whatever its outcome, would make no difference to ZZ on the facts.  He was now in the United Kingdom and there was no present intention to remove him.  Secondly, insofar as the Secretary of State was seeking a declaration as to the true construction of s.85(4), there was an open question as to whether this Court had jurisdiction to grant such declaratory relief in an appeal from SIAC.  Thirdly, both the 2006 Regulations and the NIAA had since been amended; no other case on the provisions as they applied in the present case was either known or likely.
21.	For ZZ, Mr Southey QC said that he too had been conscious of the potentially academic nature of the appeal.  In his judgment granting the Secretary of State permission to appeal, Richards LJ had himself flagged the point by observing (at [12]) that whether the 2006 decision “should stand or be set aside may on one view be of limited practical significance”.   Mr Southey underlined that the cross-appeal had only been launched in the light of permission to appeal having been granted to the Secretary of State.  That said, Mr Southey maintained that ZZ was entitled to “vindication”.  He wished it to be recorded that he did not accept that the historic findings had been taken in a manner which was lawful.  His concern went both to ZZ’s reputation and his potential claim for damages.  Mr Southey also alluded to the difficulties posed by “closed” submissions for the “open” representatives of someone in ZZ’s position.
22.	For the Special Advocates, Mr Underwood QC noted that this had been a “celebrated” case.  He raised for consideration whether it should be given “life support”.  He recognised that if the appeal was summarily dismissed as academic, then the Closed hearing would fall away; if, however, the matter proceeded, then he intended to argue in the Closed hearing that ZZ was denied access to the essence of the case against him. 
23.	For my part and in accordance with Hamnett (supra) and the authorities there cited, I have no doubt that in the exercise of our discretion, this appeal should be dismissed, summarily, as academic.  It follows that the cross-appeal must likewise be dismissed and there will be no need for a Closed hearing.  My reasons follow.
24.	First, although the question is one of statutory construction and, possibly, of some public importance, it is plain that no other cases will hinge upon it. That conclusion flows inevitably from the amendments to the NIAA and the 2006 Regulations, to which Mr Kovats drew our attention (and into which we need not delve). 
25.	Secondly, the outcome of the appeal – either way – will have no practical consequences for the parties.  ZZ is now in the United Kingdom; if the appeal fails on the merits, he is no better off.  If, conversely, the appeal succeeded, as Mr Kovats made plain, there was no present intention to remove ZZ from the United Kingdom.  
26.	Thirdly, the question of construction raised by the appeal is not altogether straightforward.  On the one hand, there is something curious about deciding the correctness of a 2006 decision by reference to the facts known in 2015 (and not available to the decision-taker in 2006).  On the other hand, the common sense of the 2015 SIAC judgment is, with respect, readily apparent:  the rival national security and Art. 8 cases need to be weighed; how can it be right to do so with reference to the facts as known in 2015 in respect of the Art. 8 case but to ignore the change in the national security case (as SIAC found there had been) between 2006 and 2015?   Issues of this nature are best resolved in cases where they are necessary for the decision and the decision is not academic.  Moreover, any such decisions in the future will be based upon an amended legislative framework.  So too, as to the argument/s sought to be raised on the cross-appeal. 
27.	Fourthly, all that remains are questions as to costs – but, as is clear from Hamnett and the authorities there cited, if the Court was otherwise disposed to dismiss the appeal as academic, it would be still more cautious to proceed with the appeal merely because the outcome might affect the incidence of costs.  Suffice to say that we have not been swayed by considerations as to costs to proceed with the appeal in this matter.
COSTS
28.	Mr Kovats submitted that the correct order as to costs was (as he attractively put it) a “no score draw”.  It had not been improper to seek to correct an error of law.  There had been no reluctance to argue the Secretary of State’s case.  The outcome did not reflect a “win” for ZZ.
29.	Mr Southey contended that costs should follow the event – i.e., the dismissal of the appeal.  He urged upon us the importance of ensuring the proper remuneration of publicly funded lawyers, so that a pool of reputable solicitors was and remained available to undertake such work:  In re appeals by Governing Body of JFS [2009] UKSC 1; [2009] 1 WLR 2353, at [25].  Furthermore, Mr Southey underlined the difficulties facing ZZ’s “open” legal representatives, given the existence and continuation of “closed” proceedings: see, Begg v HM Treasury [2016] EWCA 568; [2016] 1 WLR 4113.  
30.	In my judgment, Mr Southey’s argument is well-founded as to the costs of the appeal.  As the Secretary of State pursued the appeal, those representing ZZ had no option but to continue working on it, all the more so as they were necessarily in the dark as to the closed proceedings.  That the appeal was dismissed as academic does not justify a departure from the usual rule of costs following the event – and here, the event was the dismissal of the appeal.  ZZ ought to recover his costs in that regard.
31.	As it seems to me, however, the position as to the cross-appeal is different.  While it is right that the cross-appeal was not launched until the Secretary of State was granted permission to appeal, the cross-appeal was, in substance, independent of the appeal.  Pursuit of the cross-appeal was not in any sense necessary in order to resist the appeal.  In these circumstances, in my judgment, the correct order as to the cross-appeal is no order for costs.  
32.	The Court would be grateful for the assistance of counsel in drawing up an order so as to reflect these decisions.  
Lord Justice Simon :
33.	I agree.
Lord Justice Flaux :
34.	I also agree.