R (BB) v Special Immigration Appeals Commission

JurisdictionEngland & Wales
JudgeLord Justice Richards,Mr Justice Sweeney
Judgment Date02 August 2011
Neutral Citation[2011] EWHC 336 (Admin)
Docket NumberCase No: CO/8044/2009
CourtQueen's Bench Division (Administrative Court)
Date02 August 2011

[2011] EWHC 336 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Before: Lord Justice Richards

and

Mr Justice Sweeney

Case No: CO/8044/2009

Between
The Queen (on The Application Of Bb)
Claimant
and
Special Immigration Appeals Commission
Defendant
and
Secretary Of State For The Home Department
Interested Party

Hugh Southey QC and Simon Cox (instructed by Fisher Meredith LLP) for the Claimant

Robin Tam QC and James Strachan (instructed by The Treasury Solicitor) for the Secretary of State

The Defendant did not appear and was not represented

Hearing date: 24 January 2011

Lord Justice Richards

Lord Justice Richards :

1

This case concerns bail proceedings in the context of appeals to the Special Immigration Appeals Commission ("SIAC") under the Special Immigration Appeals Commission Act 1997 ("the 1997 Act") against decisions to deport persons on grounds of national security. Such proceedings are subject to article 5(4) ECHR and its implicit procedural requirements. In R (Cart) v Upper Tribunal, R (U) and (XC) v Special Immigration Appeals Commission [2009] EWHC 3052 (Admin), [2010] 2 WLR 1012 (to which I will refer as "Cart") the Divisional Court held that the standard of disclosure thereby required is the same as that laid down by the European Court of Human Rights in A v United Kingdom (2009) 49 EHRR 29 for challenges to detention under the Anti-Terrorism, Crime and Security Act 200The issue in the present case is whether a different approach applies when SIAC has already reached findings in the deportation appeal that the appellant is a danger to national security. In particular, where those findings are contained in a closed judgment or are based on closed material, is SIAC entitled to rely on them in subsequent bail proceedings without disclosure of the underlying material in accordance with the article 5(4) standard laid down in A v United Kingdom and Cart?

Factual background

2

The claimant, BB, is an Algerian national who has lived in the United Kingdom since 1995. In 1999 he claimed asylum on grounds of fear of the Algerian state authorities. In September 2005 he was arrested and served with a decision to deport him to Algeria on grounds of national security; and his earlier asylum claim was refused. He appealed to SIAC, on asylum and human rights grounds, against the deportation decision.

3

BB's appeal was one of a number of related cases considered by SIAC and, on further appeal, by the Court of Appeal and the House of Lords. In the reports of the cases BB is sometimes referred to as RB. Other appellants included U and Y (who is also referred to in the reports as MT).

4

On 5 December 2006 SIAC dismissed BB's appeal, concluding inter alia that he was a danger to national security and that it would be in the public good for him to be deported. The open judgment on this point stated that the reasons for the conclusion were set out in the closed judgment and could only be discerned from the closed judgment. Appeals in the related cases were also dismissed.

5

On 30 July 2007 the Court of Appeal gave judgment in appeals by BB, U and Y against SIAC's decisions. The judgment is reported under the title MT (Algeria) v Secretary of State for the Home Department [2007] EWCA Civ 808, [2008] QB 533. The court upheld the principle of use of closed material by SIAC in a deportation appeal and rejected BB's appeal against SIAC's decision that he was a danger to national security, but remitted the matter on a point of form (relating to the fact that SIAC's open judgment had merely recorded the closed decision without further elaboration) and for reasons given in a closed judgment. The cases of U and Y were also remitted to SIAC.

6

BB and U appealed to the House of Lords against the Court of Appeal's judgment of 30 July 2007 on the issues of principle concerning the use of closed material in deportation appeals. Those further appeals were dismissed on 18 February 2009, in a judgment reported under the title RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110.

7

In the meantime, SIAC heard BB's appeal as remitted to it by the Court of Appeal. In a judgment of 2 November 2007 it again dismissed the appeal, but opened parts of the previously closed judgment on the national security issue. The opened parts, amounting to some two pages, referred to the fact that BB had been a regular attender at Finsbury Park Mosque and had sided with the faction of worshippers at the mosque of which the leader or figure-head was Abu Hamza; stated that SIAC was satisfied that he had enjoyed ready access to Islamist extremists at times when they were active in the United Kingdom which could not be explained away as unfortunate coincidences; and gave details of material revealed on a search of BB's home which had assisted SIAC to determine the nature of his activities. Among the items recovered were a DHDS stamp (DHDS was listed by the UN in November 2003 as having terrorist links), the most likely explanation for possession of it being that BB himself used it for DHDS purposes or held it for others to use; and a laptop on which certain programs, called the Eraser and History Kill programs, had been installed and deleted almost without trace.

8

SIAC's decision of 2 November 2007 dismissing BB's remitted appeal was the subject of a further appeal, on limited grounds, to the Court of Appeal, but that appeal was dismissed on 29 July 2010 in a judgment also dealing with several linked cases: see W (Algeria) v Secretary of State for the Home Department [2010] EWCA Civ 89 An application for permission to appeal to the Supreme Court against that decision is pending.

9

In addition, an application has already been lodged with the European Court of Human Rights on a precautionary basis, contending that BB's deportation appeal proceedings have been in breach of the ECHR. That application is stood out pending conclusion of the domestic proceedings.

10

That is the history of the substantive appeal proceedings. I turn to consider BB's bail position. The question of bail has become increasingly important with the lapse of time pending conclusion of the domestic proceedings and the "practical certainty", as SIAC expressed it in one of its bail decisions, that the European Court of Human Rights will thereafter give an indication under Article 39 requesting the United Kingdom not to deport BB until it has determined his application to that Court.

11

BB was held in immigration detention from 15 September 2005 to 22 April 2008. During that period applications for bail were refused on three occasions, in December 2005, February 2007 and August 2007, essentially on grounds of the (undisclosed) national security case against him. In April 2008 the Secretary of State withdrew objections to bail but sought a strict curfew on grounds of the (undisclosed) national security case and the risk of absconding. Bail was granted on the basis of a 20 hour curfew. The period of the curfew was reduced in November 2008 to 18 hours.

12

In March 2009 SIAC heard an application by the Secretary of State to revoke the bail of BB, among others, on the ground that the judgment of the House of Lords in RB (Algeria) (see above) led to an increased risk of absconding. In its judgment of 20 March 2009 SIAC held that the Secretary of State was entitled to rely on closed material for the purposes of the bail proceedings. It refused the Secretary of State's application in relation to BB, holding that as long as legal proceedings remained in being it was unlikely that BB would abscond and that the risk posed by him to national security had not changed. The application was granted in the case of U.

13

U sought judicial review of SIAC's revocation of his bail. In its judgment of 1 December 2009 in Cart (see above) the Divisional Court held that bail decisions by SIAC were amenable to judicial review and, for reasons discussed further below, that the procedural requirements of article 5(4) were such that SIAC had erred in basing its decision in respect of U wholly on closed evidence. The revocation of U's bail was quashed.

14

Thereafter, for reasons given in a judgment dated 21 December 2009, SIAC acceded to a fresh application by the Secretary of State for the revocation of U's bail. The reasons referred to SIAC's assessment in an earlier open judgment of the threat to national security posed by U, stating that of all SIAC appellants he was the one who posed the greatest risk to national security if he were to abscond; and there was a real risk in current circumstances that he would abscond if re-admitted to bail. An application for judicial review of that decision was dismissed by the Divisional Court on 27 April 2010: see R (U) v Special Immigration Appeals Commission [2010] EWHC 813 (Admin). The court held that SIAC had remained loyal to the judgment in Cart and that its decision to revoke bail did not rely on, and was uninfluenced and unaffected by, closed material.

15

Meanwhile, in May 2009, BB applied to SIAC to vary his bail, principally to reduce the curfew from 18 hours to 14 hours a day. In a decision of 24 June 2009 SIAC made minor changes to his bail but maintained the 18 hour curfew, save for a reduction to 16 hours on Saturdays. There has subsequently been some further relaxation of the curfew, in bail conditions imposed on 2 November 2010, but the curfew is still stricter than sought by BB.

16

On 24 July 2009 BB applied for permission to apply for judicial review of SIAC's bail decision of 24 June. The claim was stayed pending the...

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