Z & Ors v Secretary of State for the Home Dept

These eight cases have a long and complex procedural history both in SIAC and in this Court. Seven of the applicants are Algerian nationals. The eighth, VV, is Jordanian. In each case they are seeking to challenge decisions of the Secretary of State to deport them on grounds of national security. In each case there is an extant decision of SIAC in favour of the Secretary of State. The reason why the cases are longstanding is that, in one way or another, and at different times, they have been stood out to await pending appellate decisions which were expected to impact upon them. However, the time has now come to consider them as applications for permission to appeal to this Court. Because of the many overlapping issues, I directed that they be listed together as oral applications on notice. On 19 October I heard oral submissions. I thank all counsel for their assistance and the clear way in which they took me through the diffuse material. I do not propose to give a lengthy judgment. For reasons that will become apparent, a short one will suffice.

There are two points of principle to which I should first refer. One was argued primarily by Mr Fordham QC, the other by Mr O’Connor QC.

This point is raised by Mr Fordham on behalf of his five clients: Y, G, Z, U and BB. The lead applicant in relation to it is identified as Z. It is well-known that SIAC procedures permit the Secretary of State to adduce “closed evidence” which is not disclosed to the appellant or received in his presence. His interests are represented by a special advocate. The point now raised concerns the situation where it is the appellant who wishes to adduce closed evidence before SIAC. For example, he wishes to rely on a witness from his own country but claims that the witness in question would be put at risk of ill-treatment by the security services in that country if they came to know that he had given evidence to SIAC. The question arises: are the appellant and the prospective witness provided with any procedural protection akin to the protection provided to the Secretary of State’s witnesses? SIAC is a creature of statute and its procedures are governed by Procedure Rules made pursuant to statute. It seems to me that the principle of reciprocity for which Mr Fordham contends receives no support from the statute or the Rules. Indeed, there is cogent reason to conclude, as SIAC has, that the Rules do not permit the principle. On behalf of the Secretary of State, Mr Tam submits that the Rules, whilst not permitting closed evidence from which the Secretary of State is excluded, nevertheless permit a sufficient degree of protection because Rule 43(2) provides for the possibility of a hearing in private (although not in the enforced absence of a party) and Rule 39(5)(h) provides for witness anonymity.

In Z’s case, Mitting J explained why he took the view that he had no power to sanction “reverse closed evidence”. However, in another case (U), he granted permission to appeal on the point. In the event, the Court of Appeal did not consider the point on U’s appeal. It is a difficult point but an important one. Mr Fordham has persuaded me that there is enough in it for permission to appeal to be granted. This will also enable full consideration to be given to the actual application that was made to SIAC in Z’s case and the way in which counsel then appearing for the Secretary of State responded to it. This grant of permission avails all five of Mr Fordham’s clients.

This point was advanced primarily by Mr O’Connor on behalf of VV. However, if it is a good point, it also avails Mr Fordham’s clients. The question is: what is the irreducible minimum of fairness which applies to a national security deportation case as regards the disclosure of material relied upon by the Secretary of State? In control order cases, the position is now governed by the recent authorities of A v United Kingdom (ECtHR, 19 February 2009) and SSHD v AF(No.3) [2009] UKHL 28, both of which moved the law in that context in favour of the controlees. Mr O’Connor accepts that in national security deportation cases (to which Article 6 of the ECHR does not apply), there is no scope for further argument about disclosure in relation to the issue of safety on return. However, he submits that the authorities to that effect do not preclude a requirement of disclosure as a matter of procedural fairness on the prior issue of whether the person in question poses a threat to national security in this country. I confess that I did not expect to be moved by this submission. I had in mind the case of BY [2009] EWCA Civ 950, in which I refused permission to appeal. However, I am now persuaded that (1) the context and submissions were different in that case, which concerned not deportation but a refusal of entry and, more importantly, (2) there is material in AF(No.3), particularly in the speech of Lord Brown, sufficient to permit an argument that domestic law may yet impose an obligation of disclosure as a matter of procedural fairness on the issue of whether the appellant is a risk to national security in this country. Again, the argument is not an easy one, but I have concluded that it merits permission to appeal, which accrues to the benefit of VV and all five of Mr Fordham’s clients.

All eight applicants seek to rely on additional grounds of appeal. Having considered the careful submissions in support of them, and Mr Tam’s equally careful submissions in reply, I am convinced that none of them satisfies the criteria for permission to appeal. To the extent that they relate to factual and evidential matters, they do not raise arguable points of law. None comes close to establishing an arguable case of perversity, nor is there any arguable insufficiency of reasoning. In the latter regard, I accept Mr Tam’s submission that it is appropriate to consider an individual SIAC judgment in the context of the Commission’s other judgments on a cognate issue – the “building blocks” approach, previously sanctioned by this Court. I do not consider that criticism of the treatment of the expert evidence can be made good. In PP’s case, Mr O’Connor has advanced trenchant criticisms of the reliance placed by SIAC on the judgment of a French court in a related case. His criticisms include an attack on the fairness of the French proceedings. However, I do not consider it arguable that it was wrong in law for SIAC to have any regard to the French case, which is essentially what Mr O’Connor would have to establish. There is no record of any appeal in France or application to Strasbourg arising out of the proceedings. So far as W is concerned, Mr Oliver made a number of submissions. However, they relate almost entirely to factual matters and do not give rise to any arguable points of law.

It follows from what I have said that I grant permission to Y, G, Z, U, BB and VV to appeal, but only on the grounds to which I have referred as raising points of general principle – “reverse closed evidence” and procedural fairness. As I understand it, neither PP nor W seeks to advance those grounds. It follows that PP and W are refused permission to appeal. If my understanding about that is wrong, Mr O’Connor and Mr Oliver should inform me in writing, with copies to Mr Tam.

In view of the long but unavoidable delays in these cases, I direct expedition for the hearing of the appeals, with a time estimate of 2 days. The limited nature of the permissions to appeal and the present state of the documentation necessitate these further directions:

I draw the attention of all counsel and solicitors to the wording of the confidentiality requirement which precedes this judgment.