IR (Sri Lanka) and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Thomas,Lady Justice Black |
| Judgment Date | 21 June 2011 |
| Neutral Citation | [2011] EWCA Civ 704 |
| Date | 21 June 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: T2/2009/2455, T2/2010/1180, T2/2010/1460, T2/2010/1437 |
[2011] EWCA Civ 704
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
THE IMMIGRATION APPEAL TRIBUNAL
REF: SC702008
Royal Courts of Justice
Strand, London, WC2A 2LL
REF: SC702008, BAILII: [2009] UKSIAC SC_70/2008
Lord Justice Maurice Kay,
Vice President of the Court of Appeal, Civil Division
Lord Justice Thomas
and
Lady Justice Black
Case No: T2/2009/2455, T2/2010/1180, T2/2010/1460, T2/2010/1437
Mr Hugh Southey QC and Amanda Weston (instructed by Birnberg Peirce & Ptnrs) for IR
Ms Stephanie Harrison and Mr Edward Grieves (instructed by Tyndallwoods) for GT
Ms Stephanie Harrison (instructed by Birnberg Peirce & Ptnrs) for AN
Mr Tim Owen QC and Mr Edward Grieves (instructed by Birnberg Peirce & Ptnrs) for AK
Mr Robin Tam QC, Mr Robert PalmerandMr Steven Gray (instructed by Treasury Solicitors) for the Respondent
Hearing dates: 11, 12 April 2011
These four appeals raise a generic point of principle concerning the requirements of procedural fairness when the Special Immigration Appeals Commission (SIAC) is considering cases concerning the removal or exclusion of foreign nationals on national security grounds. The procedure is governed by statute – the Special Immigration Appeals Commission Act 1997 – and by rules made pursuant to it (the SIAC Procedure Rules 2003). It adopts the now familiar special advocate role. There have been a number of attempts to expand the requirements of procedural fairness, particularly in relation to disclosure, but they have met with little success. The common law does not assist because the procedure is statutory: W (Algeria) v Secretary of State for the Home Department [2010] EWCA Civ 898; Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) does not avail the appellants because it is well settled that it does not apply in circumstances such as this: Maaouia v France (2001) 33 EHRR 1037; RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110. Where the person concerned is a national of a European Economic Area state, he may have additional procedural protection under European Union law: ZZ v Secretary of State for the Home Department [2011] EWCA Civ 440, in which this Court has referred a question to the CJEU. However, the appellants in the present appeals are not EEA nationals. The point of principle is whether they can derive procedural protection akin to that which arises under Articles 5(4) and 6 of the ECHR by invoking Article 8 which is concerned with the right to respect for private and family life.
Although I have referred to "these four appellants", only IR and GT currently have permission to appeal. However, it seems appropriate that AK and AN should also be granted permission. I do not propose to set out the facts of the individual cases at this stage but I shall briefly describe the immigration history of the four appellants before turning to the point of principle.
IR is a Sri Lankan citizen. He arrived in the United Kingdom on 24 February 2001 on a student visa. He received further grants of leave to remain, the final one being dated 14 July 2008. During its currency, he travelled to Sri Lanka but on his arrival there he was informed by an official of the British High Commission that his leave to remain was cancelled on the ground that his presence in this country is not conducive to the public good for reasons of national security. He is a single man who was aged 28 when SIAC dismissed his appeal on 30 October 2009 (SC/70/2008, BAILII: [2009] UKSIAC SC_70/2008).
GT is a Libyan who married a British citizen in Libya on 20 December 2003. She became pregnant in 2004 and wanted to have her child in this country. She arrived here on 14 February 2005. She gave birth to a son on 15 May 2005. Although GT was initially refused a visa, he was later granted one and entered the United Kingdom on 19 October 2005. He later obtained a visa extension until April 2006. He returned to Libya on 9 July 2006, intending to apply for entry clearance as a spouse so as to return. However, on 26 August 2006 and 13 January 2008 the Secretary of State made decisions excluding him on national security grounds. On 21 December 2009 his appeal was dismissed (SC/68/2008, BAILII: [2009] UKSIAC 68/2008).
AN and AK are young single men from Pakistan. AN arrived in the United Kingdom on 5 September 2006 on a student visa which was valid until 31 October 2009. He attended a university for a week but withdrew and later commenced a diploma course at the Manchester College of Professional Studies. He returned to Pakistan for periods of time in 2007 and 2008. However, he was arrested in Manchester on 8 April 2009. He was released without charge but transferred into immigration detention on 22 April when the Secretary of State served notice of intention to deport on public good/national security grounds. In October 2009, AN made a further application for leave to remain but this was refused on 8 January 2010. He appealed against both decisions. AK also arrived in this country on a student visa in September 2006 and commenced a degree course at the same university but he too withdrew and may have transferred to the Manchester College of Professional Studies. However, he returned to the university in September 2008. He was also arrested on 8 April 2009 and was served with a notice of intention to deport on public good/national security grounds on 22 April. His extended visa expired on 31 December 2009 but shortly before that he made a further application for leave to remain which was refused on 22 February 2010. He appealed against both decisions. The appeals of AN and AK were heard together, along with those of three others. The case for the Secretary of State against all five was that they were parties to a plot to carry out a mass-casualty attack in the North West in April 2009. The appeals of AN and AK failed on the national security issue which is in issue here but succeeded by reference to Article 3 on the basis that they could not be safely returned to Pakistan. However, they retain an interest in the appeals to this Court by reference to the dismissal by SIAC of their appeals against refusals of applications for further leave to remain. The Secretary of State concedes that they are eligible appellants on that basis.
The approach of SIAC
On each occasion, the presiding judge in SIAC was Mitting J. In essence, he rejected submissions that, in national security deportation and exclusion cases, appellants are entitled to a standard of procedural fairness which embraces disclosure at the "irreducible minimum" level required in Article 5(4) and 6 cases in the light of Secretary of State for the Home Department v AF (No.3) [2009] UKHL 28 [2010] 2 AC 269. He held that the entitlement is to that contained in the SIAC Procedure Rules, neither more nor less. By way of example, he accepted that GT
"has not been able to give instructions to the special advocates about the essential features of the Secretary of State's case which, save for the most general words, is entirely contained in the closed case."
Rather more was apparent from the open cases in IR, AN and AK, but the point remained. The argument based on the procedural requirements of Article 8 was advanced most specifically in IR but it was roundly rejected (Open judgment, paragraph 8).
Article 8: the point of principle
It is common ground that, where Article 6 is not engaged, Article 8 may impose procedural obligations. An example far removed from the present appeals is McMichael v United Kingdom (1995) 20 EHRR 205 where the Strasbourg Court was concerned with access to confidential documents in the context of parental rights in a child care case. It said (at paragraph 87):
"Whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8."
Similarly, in P, C and S v United Kingdom (2002) 35 EHRR 1075, the Court said (at paragraph 120):
"It is essential that a parent be placed in a position where he or she may obtain access to information which is relied on by the authorities in taking measures of protective care or in taking decisions relevant to the care and custody of a child. Otherwise the parent will be unable to participate effectively in the decision-making or put forward in a fair or adequate manner those matters militating in favour of his or her ability to provide the child with proper care and protection."
I have emphasised the words which permeate the subsequent and more relevant jurisprudence.
Counsel have taken us through the line of authority which considers this principle in the context of immigration and national security. It is unnecessary to revisit all the cases in detail. They manifest a clear and consistent approach.
In Al-Nashif v Bulgaria (2003) 36 EHRR 37, the Court said (at paragraphs 119 and 123):
"… there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by the Convention …
Even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information."
In Turek v Slovakia (2007) 44 EHRR 43, the Court was concerned to ensure that procedural...
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