W (Algeria) & others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir David Keene,Lord Justice Sullivan,Lord Justice Jacob |
| Judgment Date | 29 July 2010 |
| Neutral Citation | [2010] EWCA Civ 898 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: T2/2007/9507,T2/2007/9509,T2/2007/9710,T2/2007/9511, |
| Date | 29 July 2010 |
[2010] EWCA Civ 898
IN COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SPECIAL IMMIGRATION APPEALS COMMISSION
Before: Lord Justice Jacob
Lord Justice Sullivan
and
Sir David Keene
Case No: T2/2007/9507,T2/2007/9509,T2/2007/9710,T2/2007/9511,
T2/2007/9512,T2/2007/9513,T1/2007/9514,T2/2007/9517
Michael Fordham QC and Hugh Southey QC (instructed by Fisher Meredith) for the Appellant W and BB
Michael Fordham QC and Hugh Southey QC (instructed by Birnberg Peirce & Partners) for the Appellants Z and U
Michael Fordham QC and Charlotte Kilroy (instructed by Birnberg Peirce & Partners) for the Appellants G and Y
Patrick O'Connor QC and Stephanie Harrison (instructed by Tyndallwoods) for the Appellants VV and PP
Robin Tam QC and Robert Palmer (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 16 TH & 17 TH June 2010
Sir David Keene:
Introduction
These are eight appeals from decisions of the Special Immigration Appeals Commission (“SIAC”) which in each case upheld a decision by the Secretary of State for the Home Department to deport the appellant on grounds of national security. Seven of the appellants are Algerian nationals, the eighth, VV, being Jordanian. Each claimed that he would be at risk of treatment contrary to Article 3 of the European Convention on Human rights (“ECHR”), were he to be deported. Many of the cases have a considerable procedural history before SIAC and the courts, but the issues now before this court are limited by the terms of the permission to appeal granted by Maurice Kay L.J. He granted permission in respect of two issues: first, in proceedings before SIAC, is an appellant and his prospective witness or witnesses entitled to any procedural protection akin to the “closed evidence” procedure available to the Secretary of State's witnesses? This was described as the “reverse closed evidence” issue, and permission to pursue it has been granted to all the appellants except VV.
Secondly, in appeals before SIAC in cases of deportation decisions on grounds of national security, is there an irreducible minimum of information about the risk presented by the appellant to national security which the Secretary of State is bound to provide to the appellant in the interests of procedural fairness? Permission on this ground has been granted to six of the appellants, namely all except PP and W, though it should be noted that three of them, Z, G and U, formally waived their right before SIAC to contest the Secretary of State's evidence as to the risk they presented to national security. This was done on the express basis that they did not believe that they could obtain a fair hearing on the national security issue and because they wished to have the issue of their safety on return to their originating country determined as soon as possible.
The two issues raised are essentially matters of principle, which do not require an extensive description of the facts of each case, though it will be helpful to illustrate the issues from time to time with some factual material. In particular, the lead appellant on the first issue is Z and it will be necessary to summarise what happened at the relevant SIAC hearing when this issue was dealt with. Similarly, on the second issue VV is the lead appellant and the SIAC decision in his case helps to illuminate the arguments on that issue.
The Statutory Context
SIAC was established by and derived its jurisdiction from the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”). Before the passage of that statute, deportation decisions made on the basis that deportation would be conducive to the public good as being in the interests of national security were excluded from the system of appeals to an adjudicator and beyond. Instead of a right of appeal, there was a non-statutory procedure in existence, under which a prospective deportee in such cases could have his case considered by an advisory panel, before which he could not be legally represented. The panel's advice to the Secretary of State was not disclosed and the Secretary of State was not obliged to follow it.
As is well-known, this system was found by the European Court of Human Rights in Chahal v United Kingdom [1996] 23 EHRR 413 not to meet the requirements of Article 5 (4) of the ECHR in a case where the complainant was held in detention pending deportation. The advisory panel was not a “court” within the meaning of Article 5 (4). The Strasbourg Court acknowledged that the use of confidential material might be unavoidable where national security was at stake, but it pointed to the form of judicial control developed in Canada, which showed that there could be techniques which
“both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice.” (paragraph 131)
One of the features of the Canadian system referred to by the Court was that of a security-cleared counsel to test the strength of the State's case in respect of material which could not be disclosed to the applicant or his representative for security reasons. The court also made the point that, where Article 3 issues arose in expulsion cases, the notion of an effective remedy under Article 13 required independent scrutiny of the claim that there were substantial grounds for fearing a breach of Article 3, but it added (at paragraph 152) that such scrutiny need not be provided by a judicial authority.
The 1997 Act was then passed to remedy the deficiencies in the advisory panel system and to produce a system which reconciled, so far as possible, the interests of national security in such cases and the interests of the individual. SIAC is thus a creature of statute. Appeals which would otherwise be brought under section 82 (1) or 83 (2) of the Nationality, Immigration and Asylum Act 2002 to an immigration judge are precluded by section 97 of that Act where the Secretary of State's decision was made wholly or partly on grounds of national security. Instead an appeal lies under section 2 (1) of the 1997 Act to SIAC.
Section 5 of the 1997 Act gives the Lord Chancellor the power to make rules prescribing the practice and procedure in SIAC. That power is exercisable by statutory instrument and the rules have to be approved by an affirmative resolution of both Houses of Parliament: section 5 (8) and (9). Section 5 (3) of the 1997 Act is of importance. It provides:
“(3) Rules under this section may, in particular—
a) make provision enabling proceedings before the Commission to take place without the appellant being given full particulars of the reasons for the decision which is the subject of the appeal,
b) make provision enabling the Commission to hold proceedings in the absence of any person, including the appellant and any legal representative appointed by him,
c) make provision about the functions in proceedings before the Commission of persons appointed under section 6 below, and
d) make provision enabling the Commission to give the appellant a summary of any evidence taken in his absence.”
Section 5 (6) states as follows:
“(6) In making rules under this section, the Lord Chancellor shall have regard, in particular, to –
(a) the need to secure that decisions which are the subject of appeals are properly reviewed, and
(b) the need to secure that information is not disclosed contrary to the public interest.”
Section 6 gave a power to the relevant law officer, in England and Wales the Attorney General, to appoint a person to represent the interests of an appellant in any proceedings before SIAC from which he and any legal representative of his were excluded. Subsection (4) of that section provided that such a person was not responsible to the appellant. This section thus gave rise to the institution of the special advocate, intended to replicate the security-cleared counsel to be found in the Canadian system.
The Lord Chancellor has made the Special Immigration Appeals Commission (Procedure) Rules 2003 pursuant to section 5. These rules (“the SIAC Procedure Rules”) have been amended as from dates in 2007, in particular so as to provide by Rule 10A for the Secretary of State to disclose material which adversely affects her case or supports the appellant's case (“exculpatory material”), following a reasonable search for such material, save where disclosure would harm the public interest. That amendment was not in force at the time of some of the SIAC decisions now under appeal, but the Secretary of State's practice under the SIAC Procedure Rules as they originally stood was, we have been told, identical to that now provided for.
Rule 4 deals with the general duty of the Commission. It states:
“(1) When exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.
(2) Where these Rules require information not to be disclosed contrary to the public interest, that requirement is to be interpreted in accordance with paragraph (1).
(3) Subject to paragraphs (1) and (2), the Commission must satisfy itself that the material available to it enables it properly to determine proceedings.”
It is to be observed that...
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