BY v Secretary of State for the Home Department

There is before the court an application for permission to appeal a decision of SIAC, whereby the applicant’s appeal to SIAC was dismissed. He is of Indian nationality. His father is the leader of an extremist Sikh organisation known as the BK, which is a proscribed organisation in this country. It is common ground that the applicant is a member of that organisation, although he lives in Germany, and his case before SIAC is that he was and is an inactive member of that organisation.

His personal circumstances are that he is married to a British citizen. There is no doubt as to the genuineness of that marriage. The applicant and his British wife live in Germany, in which country the applicant has refugee status. In July 2006 he applied for leave to enter this country with a view to settlement as the spouse of a British citizen but that resulted in his application being refused, effectively on the grounds that his exclusion was conducive to the public good under paragraph 320(6) of the Immigration Rules. That was later further explained by a reference to national security, “because of membership of and involvement with BK”. On 29 July 2008 the applicant applied for an EEA family permit under Regulations 9 and 12 of the Immigration (European Economic Area) Regulations 2006 as the spouse of an EEA national.

That application was also refused. Those refusals were the decisions sought to be challenged by the appeal to SIAC. The proceedings in SIAC generated both an open and a closed judgment. It is apparent from the open judgment that Mitting J and, I think, the parties took the view that if the matter was considered by reference to the EU Directive, that would be determinative of all issues because no greater protection existed if it were dealt with on a domestic or ECHR basis. The reason for that is that within Directive 2004/38/EC the rights of entry and residence may be restricted on grounds of public policy and public security or public health – see Article 27. Article 27.2 requires measures taken on grounds of public policy or public security to comply with the principle of proportionality and to be based exclusively on the personal conduct of the individual concerned. It adds that the personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention are not acceptable. Article 30 provides that the persons concerned shall be notified in writing of any decision taken under Article 27.1 in such a way that they are able to comprehend its content and the implications for them. Article 30.2 then adds:

“The persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of State security.”

The decision of SIAC was that this is an Article 27 case and that it is and was proportionate for the Secretary of State to refuse entry on grounds of national security.

The grounds of appeal to this court as originally formulated concentrated on three proposed issues. First, it was said that SIAC had erred in law when deciding that its procedure was not governed by Article 6 of the ECHR under either its criminal or its civil limb. Secondly, it was asserted that SIAC had failed to apply the criminal standard of proof in making findings of fact. Thirdly, it was said that SIAC had erred in law in finding the decision of the Secretary of State to exclude the applicant to be proportionate.

More recently, Mr de Mello has reformulated his proposed appeal. He has not abandoned any of those three points, but he now places at the forefront of his proposed appeal a submission to the effect that in the light of the developing jurisprudence, some of the developments having occurred since the decision in SIAC, the procedure followed in SIAC was an unfair procedure and fell short of what is required by EU law. He seeks to support that argument by reference to the decision of the Strasbourg Court in A v United Kingdom (Application No. 3455/05) which was handed down on 19 February this year. Essentially his submission is that the SIAC procedure is unfair because it denies to a person in the position of the applicant notice, even in gisted form, of the controversial allegations against him.

I say at once that in my judgment the grounds of appeal as originally formulated do not merit a grant of permission to appeal. It seems to me that there is now clear authority supporting the view of SIAC that Article 6 is not engaged in a SIAC deportation case – see RB (Algeria) and others v SSHD [2009] UKHL 10. That authority establishes the non-application of Article 6 and indeed is authority for the proposition that SIAC procedures, which are governed by specific rules of procedure, are themselves fair. Moreover, the decision was made in a deportation case. If they are sufficiently fair for that, it seems to me it is axiomatic that they are sufficiently fair in the present context of a refusal of entry on national security grounds. So I consider RB (Algeria) to be fatal to the first of the original proposed grounds of appeal.

Similarly, it seems to me that the second original proposed ground, based on the standard of proof, is without a real prospect of success. SIAC has previously held that the appropriate standard of proof is the civil standard – see ZZ v SSHD [2008] UKSIAC 63. In that case Mitting J explained why the criminal standard was being rejected as inappropriate. It is sufficient for me to say that the reasons he gave seem to me to be utterly unassailable, and I am unimpressed by Mr de Mello’s attempted resort to recent authorities in relation to ASBOs and family proceedings which seem to me ultimately not to help his case at all.

The third of the original grounds, attacking the decision as to the proportionality, seems to me to be without any prospect of success, it being plain from the open judgment that it was reached taking into account findings that were made in the closed judgment, and Mr Cragg, who appeared as one of the special advocates below and who appears as a special advocate today, makes it clear that there is no basis for an appeal against the findings in the closed judgment.

It follows that in my judgment the appeal as originally formulated would not bear a real prospect of success, nor would there be any other compelling reason for granting permission, and I refuse permission on the original grounds. The final question is whether the applicant has any greater prospect or whether there is any more compelling reason to grant permission in relation to what I have described as Mr de Mello’s newly formulated ground of appeal in this case.

In my judgment he can fare no better there than in the original grounds of appeal. The starting point remains the decision of the House of Lords in RB (Algeria) giving a clean bill of health to SIAC procedures in deportation cases. It seems to me that that was right. It applies a fortiori to a refusal of entry case. Mr de Mello seeks to circumnavigate that by his submission that EU law requires a higher level of protection. However, it is clear from Article 30(2) of the Directive that the obligation of disclosure is modified where such disclosure is “contrary to the interests of state security”. It seems to me that, far from being in conflict with that provision, the SIAC procedures, and specifically Rule 4 of the SIAC Procedural Rules, are a reflection of it. In my judgment the appeal to EU law in fact takes this case no further. To the extent that it seeks to draw on the Strasbourg case of A v United Kingdom, it is highly material that that case was concerned with a serious breach of Article 5, concerning as it did detention of unspecified duration without trial. As we are in a territory in which Strasbourg law seems to me not to bite and EU law seems to reflect SIAC’s own procedures as expressed in Rule 4, and as we are concerned with the lesser interference of a refusal of entry, I do not think that Mr de Mello’s reformulated case has any real prospect of success.

I have considered whether there is anything arising from another case in which the judgment of this court is to be handed down next Thursday which might impact on or improve the applicant’s prospects in the present case. Mr de Mello knows something of that case because he was involved in it, although he has not yet had the opportunity to read the draft judgment which I think went out yesterday. It seems to me, however, that it is not really in point so far as the present case is concerned. Its concern was with whether or not a special advocate should be appointed, not in SIAC but in the High Court in a case where the issue is the refusal of British nationality on national security grounds. That seems to me to be a different context uncovered by specific rules of the kind that exist in SIAC which, as I have said, have received a clean bill of health from the House of Lords and which I do not consider to be at risk from either the terms of the Directive or the decision of A v United Kingdom.

For all those reasons, therefore, I refuse permission to appeal.