M v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice |
| Judgment Date | 18 March 2004 |
| Neutral Citation | [2004] EWCA Civ 324 |
| Docket Number | Case No: C2/2004/0516 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 March 2004 |
[2004] EWCA Civ 324
The Lord Chief Justice of England and Wales
Lord Justice Potter and
Lord Justice Clarke
Case No: C2/2004/0516
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION
APPEALS COMMISSION
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Wyn William QC and Miss Lisa Giovannetti (instructed by Treasury Solicitors) for the Secretary of State for the Home Department
Mr Ben Emmerson QC and Mr Raza Husain (instructed by Birnberg Solicitors) for the "M"
Mr Angus McCullough and Mr Martin Chamberlain acted as Special Advocates
This is the judgment of the Court.
Introduction
This is an application for permission to appeal on behalf of the Secretary of State for the Home Department. His application relates to a decision of the 8 March 2004 of the Special Immigration Appeals Commission ("SIAC"). SIAC was established by the Special Immigration Appeals Commission Act 1997 ("the 1997 Act") in response to a decision of the European Court of Human Rights in Chahal v UK 23 ECHR 413 in relation to the procedures which then existed where an individual was to be deported on the grounds that the deportation would be "conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for reasons of a political nature".
SIAC is a superior court of record. Its members are appointed by the Lord Chancellor. To be properly constituted to hear an appeal it must consist of three members, one of whom is to be a judge who holds or who has held high judicial office, one of whom has to be either the Chief Adjudicator or a Member of the Immigration Appeal Tribunal and one of whom it is intended should have experience of national security matters (as we understand was the position of this case) although this is not a statutory requirement (see Schedule 1 para 5 of the 1997 Act and Hansard HC vol 299, Col 1055).
The Anti Terrorism, Crime and Security Act 2001 ("2001 Act") was a response by Parliament to the increased threat of terrorist activity. The 2001 Act gave the Secretary of State a power to issue a certificate in respect of a person if the Secretary of State reasonably:
i) believes that persons presence in the United Kingdom is a risk to national security, and
ii) suspects that the person is a terrorist. (section 21(1) of the 2001 Act).
While a person who would otherwise be detained is free to leave this country the 2001 Act provides that a suspected international terrorist may be detained despite the fact that his safe removal or departure from the United Kingdom is not practical. (section 23(1) of the 2001 Act). An individual who is detained has a right to appeal to SIAC against his certification under section 21.
On 8 March 2004 SIAC (the members being Mr Justice Collins, Mr J Barnes and Mr M James) after a hearing lasting three days allowed an appeal against the Secretary of State's Certificate under Section 21 and his decision to make a deportation order in relation to a Libyan national, who for the purposes of these proceedings, is known as "M". SIAC's decision in relation to "M" is the first occasion upon which SIAC has allowed an appeal of an individual detained under the 2001 Act. This is therefore the first occasion upon which the Secretary of State has attempted to appeal to this Court against a decision of SIAC. There have however been a number of appeals in relation to the decisions of SIAC that dismissed appeals by those who have been detained. On 29 October 2003, SIAC, presided over by Mr Justice Ouseley, sitting with Mr Ockleton and Mr Chester, considered 5 appeals (Ajouaou and A B C and D v The Secretary of State for the Home Department SC/1/6/7/9/10 2002; 29 October 2003). In relation to those appeals, SIAC gave a judgment dealing with a number of general issues as to the interpretation and application of the 2001 Act. That judgment is known as the generic judgment. The generic judgment is itself subject to appeal to this Court.
The Legislative Provisions
In determining the present application for permission to appeal, the relevant statutory provisions are important.
We have already referred to section 21(1). However, it is helpful to set out the relevant provisions of that section in full. They are as follows:
"(1) The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably –
(a) believes that the person's presence in the United Kingdom is a risk to national security, and
(b) suspects that the person is a terrorist.
(2) In subsection (1) (b) "terrorist" means a person who-
….
….
has links with an international terrorist group.
(3) A group is an international terrorist group for the purposes of subsection (2) (b) and (c) if –
it is subject to the control or influence of persons outside the United Kingdom and
the Secretary of State suspects that it is concerned in the commission, preparation or instigation of acts of international terrorism.
(4) For the purposes of subsection (2) (c) a person has links with an international terrorist group only if he supports or assists it.
(5) In this Part-
"Terrorism" has the meaning given by section 1 of the Terrorism Act 2000 (c.11), and
"suspected international terrorist" means a person certified under subsection (1)."
It is to be noted that the power of the Secretary of State to certify, contained in section 21(1), refers to the Secretary of State's reasonable belief and suspicion. That section has to be contrasted with section 25 of the 2001 Act which deals with the right of the person who is the subject of a certificate to appeal. Section 25 provides, so far as relevant, as follows:
"(1) A suspected international terrorist may appeal to the Special Immigration Appeals Commission against his certification under section 21.
(2) On an appeal the Commission must cancel the certificate if-
it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1) (a) or (b), or
it considers that for some other reason the certificate should not have been issued.
(3) If the Commission determines not to cancel a certificate it must dismiss the appeal.
(4) Where a certificate is cancelled under subsection (2) it shall be treated as never having been issued.""
It will be observed that section 25 refers to what the Commission considers the position to be. If the Commission considers that "there are no reasonable grounds for a belief or suspicion" then the Commission must cancel the certificate. Similarly, it must do so if it considers that the certificate should not have been issued.
The Appeal to this Court is governed by section 7 of the 1997 Act. Section 7(1) provides:
"Where the Special Immigration Appeals Commission has made a final determination of an appeal, any party to an appeal may bring a further appeal to the appropriate appeal court on any question of law material to that determination."
This is the only way in which a decision of SIAC can be questioned in legal proceedings. (Section 1 of the 1997 Act as amended by section 35 of the 2001 Act.)
Although the definition of a terrorist in section 21 of the 2001 Act is in general terms it is common ground that the Secretary of State's powers under the 2001 Act are limited by the terms of the Human Rights Act 1998 (Designated Derogation) Order 2001, by which the United Kingdom derogated from Article 5 of the ECHR. Accordingly, those powers cannot be exercised (except in accordance with the derogation) in respect of someone whom he does not reasonably suspect or believe to be a risk to national security because of his connection to the public emergency threatening the life of the nation – namely the threat posed by Al Qa'ida and it's associated networks. Thus it is not enough that the person detained may have had connections with a terrorist organisation. It must be a terrorist organisation which has links with Al Qa'ida.
Section 5 of the 1997 Act contains a wide power for the Lord Chancellor to make rules. Those rules are required to provide that an appellant has the right to be legally represented. Section 6 of that Act also provides that a law officer "may appoint a person to represent the interests of an appellant in any proceedings before the Special Immigration Appeals Commission from which the appellant and any legal representative of his are excluded". A person so appointed is usually known as a special advocate. This provision reflects the fact that it was appreciated that in many of the appeals which are heard by SIAC, it is necessary for evidence to be given in closed session without the appellant or his lawyers being informed of the nature of the evidence.
In this situation individuals who appeal to SIAC are undoubtedly under a grave disadvantage. So far as it is possible this disadvantage should be avoided or if it cannot be avoided minimised. However, the unfairness involved can be necessary because of the interests of national security. The involvement of a special advocate is intended to reduce (it cannot wholly eliminate) the unfairness which follows from the fact that an appellant will be unaware at least as to part of the case against him. Unlike the appellant's own lawyers, the special advocate is under no duty to inform the appellant of secret information. That is why he can be provided with closed material and attend closed hearings. As this appeal illustrates, a special advocate can play an important role in protecting...
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