The case of Habib Ignaoua shows the government’s unconcern about the collateral damage to families and the rule of law caused by its determination to keep ‘undesirables’ out.
53-year-old Ignaoua fled Tunisia in 1994. He came to Britain in 2004 and sought asylum, claiming detention and torture by the Tunisian authorities, whose military courts had by then convicted him in his absence and sentenced him to lengthy imprisonment. His asylum claim was still being processed when in 2007 the Italian government sought his extradition on a European arrest warrant which claimed that while living in Italy he had recruited north Africans for military training in Afghanistan and used forged currency. In late 2008 Ignaoua was extradited to Italy, leaving his British wife, and a British son from a previous marriage, behind.
In due course, in July 2010, Ignaoua was acquitted of the charges – and it was then that his troubles with the UK authorities began. The same month, the Home Office issued an order forbidding his return to the UK, claiming that his exclusion was ‘conducive to the public good’ on the grounds of ‘national security’. Despite his acquittal, the Home Office maintained that Ignaoua was involved in facilitation and radicalisation for terrorist purposes. There was no right of appeal against the exclusion order. Having got him out, it did not want him back at any cost – never mind his ongoing asylum claim, or the impact of his exclusion on his British wife and child, or the known propensity of the Italian government to defy the European human rights court and deport unwanted Tunisians back to detention and torture.
Cat and mouse
Ignaoua’s UK lawyers launched a judicial review of the exclusion, but the proceedings were delayed for three years by the Home Office insistence on secrecy for their detailed allegations and evidence, and the hearings needed to establish a procedure for this. (Of course, Ignaoua’s exclusion remained – and remains – in force during the legal challenges.) Then, as the lawyers were preparing for a hearing of Ignaoua’s legal challenge in July 2013, the Home Office sought a further adjournment, saying that the Justice and Security Act, which had come into force in June, allowed Ignaoua to apply to the Special Immigration Appeals Commission to set aside the exclusion order. The fact that no procedures had yet been created for such an application to be made appeared irrelevant; there was, the Home Office claimed, an alternative remedy, so the judicial review was no longer necessary. On 16 July, the judge refused the Home Office application, seeing no need or point in further delays.
Contempt of court
On the same day, the Home Office issued a certificate under the Justice and Security Act which, its lawyers claimed, had the effect of automatically putting an end to the judicial review proceedings. In effect, the minister’s position was that of a losing player who overturns the board: if the judge rules against her she’ll stop the game. Only it is not a game, but a legal challenge to exclusion of the husband and father of a British citizen, in front of robust and independent High Court judges. She offers instead the distant prospect of a hearing in a national security court far more attuned to the government’s concerns.
This is not the first time by any means that Home Office ministers have shown a woeful lack of understanding of the relationship between the executive and the other branches of government – the courts and the legislature. Ministers in both the coalition government and its predecessor have a habit of believing themselves to be sole rulers, able to ride roughshod over court judgments and to bypass parliamentary scrutiny. And this tendency seems to manifest itself most strongly in cases involving immigrants – whether in the unilateral and illegal detention of Algerians and Jordanians following judges’ refusal to revoke bail in February 2009, or the issuing of new rules for international students in the same year, or an interim cap on migrant numbers the following year, without bothering with parliamentary scrutiny.
To its shame, the High Court accepted in August that the certificate put an end to the judicial review and told Ignaoua he would have to wait in limbo for procedural rules to be drafted before he could apply to SIAC to have the exclusion order set aside. But its decision was happily reversed in November by the Court of Appeal. Judicial review, the judges said, was far too important a remedy to be automatically terminated by ministerial certificate, all the more so when the minister was one of the parties to the litigation which it sought to bring to a premature end. The law the minister said he was applying simply could not have that effect unless parliament had spelled it out in crystal clear terms. Besides, as the court observed, the procedure rules enabling applicants in Ignaoua’s position to apply to SIAC had still not been issued, adding to the manifest unfairness at being left without an effective remedy for exclusion from the country.
So there is some sort of justice for Habib Ignaoua, who can at least continue with the judicial review of his exclusion. But it’s a pretty weak solution of justice, given that he can’t attend the hearing, can’t know the substance of the allegations or the evidence against him and, not being resident in the UK, will soon lose the right to legal aid to pursue his challenge.
Read an IRR briefing paper: ‘Europe’s pariah state? The future of human rights in Britain‘