IR (Sri Lanka) & Ors v Secretary of State for the Home Department

These four appeals raise a generic point of principle concerning the requirements of procedural fairness when the Special Immigration Appeals Commission (SIAC) is considering cases concerning the removal or exclusion of foreign nationals on national security grounds. The procedure is governed by statute – the Special Immigration Appeals Commission Act 1997 – and by rules made pursuant to it (the SIAC Procedure Rules 2003). It adopts the now familiar special advocate role. There have been a number of attempts to expand the requirements of procedural fairness, particularly in relation to disclosure, but they have met with little success. The common law does not assist because the procedure is statutory: W (Algeria) v Secretary of State for the Home Department [2010] EWCA Civ 898; Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) does not avail the appellants because it is well settled that it does not apply in circumstances such as this: Maaouia v France (2001) 33 EHRR 1037; RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110. Where the person concerned is a national of a European Economic Area state, he may have additional procedural protection under European Union law: ZZ v Secretary of State for the Home Department [2011] EWCA Civ 440, in which this Court has referred a question to the CJEU. However, the appellants in the present appeals are not EEA nationals. The point of principle is whether they can derive procedural protection akin to that which arises under Articles 5(4) and 6 of the ECHR by invoking Article 8 which is concerned with the right to respect for private and family life.

Although I have referred to “these four appellants”, only IR and GT currently have permission to appeal. However, it seems appropriate that AK and AN should also be granted permission. I do not propose to set out the facts of the individual cases at this stage but I shall briefly describe the immigration history of the four appellants before turning to the point of principle.

IR is a Sri Lankan citizen. He arrived in the United Kingdom on 24 February 2001 on a student visa. He received further grants of leave to remain, the final one being dated 14 July 2008. During its currency, he travelled to Sri Lanka but on his arrival there he was informed by an official of the British High Commission that his leave to remain was cancelled on the ground that his presence in this country is not conducive to the public good for reasons of national security. He is a single man who was aged 28 when SIAC dismissed his appeal on 30 October 2009 (SC/70/2008).

GT is a Libyan who married a British citizen in Libya on 20 December 2003. She became pregnant in 2004 and wanted to have her child in this country. She arrived here on 14 February 2005. She gave birth to a son on 15 May 2005. Although GT was initially refused a visa, he was later granted one and entered the United Kingdom on 19 October 2005. He later obtained a visa extension until April 2006. He returned to Libya on 9 July 2006, intending to apply for entry clearance as a spouse so as to return. However, on 26 August 2006 and 13 January 2008 the Secretary of State made decisions excluding him on national security grounds. On 21 December 2009 his appeal was dismissed (SC/68/2008).

AN and AK are young single men from Pakistan. AN arrived in the United Kingdom on 5 September 2006 on a student visa which was valid until 31 October 2009. He attended a university for a week but withdrew and later commenced a diploma course at the Manchester College of Professional Studies. He returned to Pakistan for periods of time in 2007 and 2008. However, he was arrested in Manchester on 8 April 2009. He was released without charge but transferred into immigration detention on 22 April when the Secretary of State served notice of intention to deport on public good/national security grounds. In October 2009, AN made a further application for leave to remain but this was refused on 8 January 2010. He appealed against both decisions. AK also arrived in this country on a student visa in September 2006 and commenced a degree course at the same university but he too withdrew and may have transferred to the Manchester College of Professional Studies. However, he returned to the university in September 2008. He was also arrested on 8 April 2009 and was served with a notice of intention to deport on public good/national security grounds on 22 April. His extended visa expired on 31 December 2009 but shortly before that he made a further application for leave to remain which was refused on 22 February 2010. He appealed against both decisions. The appeals of AN and AK were heard together, along with those of three others. The case for the Secretary of State against all five was that they were parties to a plot to carry out a mass-casualty attack in the North West in April 2009. The appeals of AN and AK failed on the national security issue which is in issue here but succeeded by reference to Article 3 on the basis that they could not be safely returned to Pakistan. However, they retain an interest in the appeals to this Court by reference to the dismissal by SIAC of their appeals against refusals of applications for further leave to remain. The Secretary of State concedes that they are eligible appellants on that basis.

On each occasion, the presiding judge in SIAC was Mitting J. In essence, he rejected submissions that, in national security deportation and exclusion cases, appellants are entitled to a standard of procedural fairness which embraces disclosure at the “irreducible minimum” level required in Article 5(4) and 6 cases in the light of Secretary of State for the Home Department v AF(No.3) [2009] UKHL 28 [2010] 2 AC 269. He held that the entitlement is to that contained in the SIAC Procedure Rules, neither more nor less. By way of example, he accepted that GT

“has not been able to give instructions to the special advocates about the essential features of the Secretary of State’s case which, save for the most general words, is entirely contained in the closed case.”

Rather more was apparent from the open cases in IR, AN and AK, but the point remained. The argument based on the procedural requirements of Article 8 was advanced most specifically in IR but it was roundly rejected (Open judgment, paragraph 8).

It is common ground that, where Article 6 is not engaged, Article 8 may impose procedural obligations. An example far removed from the present appeals is McMichael v United Kingdom (1995) 20 EHRR 205 where the Strasbourg Court was concerned with access to confidential documents in the context of parental rights in a child care case. It said (at paragraph 87):

“Whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8.”

Similarly, in P, C and S v United Kingdom (2002) 35 EHRR 1075, the Court said (at paragraph 120):

“It is essential that a parent be placed in a position where he or she may obtain access to information which is relied on by the authorities in taking measures of protective care or in taking decisions relevant to the care and custody of a child. Otherwise the parent will be unable to participate effectively in the decision-making or put forward in a fair or adequate manner those matters militating in favour of his or her ability to provide the child with proper care and protection.”

I have emphasised the words which permeate the subsequent and more relevant jurisprudence.

Counsel have taken us through the line of authority which considers this principle in the context of immigration and national security. It is unnecessary to revisit all the cases in detail. They manifest a clear and consistent approach.

In Al-Nashif v Bulgaria (2003) 36 EHRR 37, the Court said (at paragraphs 119 and 123):

“… there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by the Convention …

Even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information.”

In Turek v Slovakia (2007) 44 EHRR 43, the Court was concerned to ensure that procedural protection is “practical and effective” (paragraph 113).

These concepts of “effectiveness” and “guarantees against arbitrariness”, coupled with “the benefit of adversarial proceedings” were reiterated in Lapsa v Romania (2008) 46 EHRR 36 (paragraphs 34-38); Liu v Russia (2008) 47 EHRR 33 (paragraphs 59-62); and CG v Bulgaria (2008) 47 EHRR 51 (paragraph 40). Equally, they all acknowledge that, in cases concerned with national security, there may need to be “appropriate procedural limitations on the use of classified information”.

Essentially, the submission on behalf of the appellants is that this approach should now be reassessed in the light of A v United Kingdom (2009) 49 EHHR 29 and Secretary of State for the Home Department v AF (No.3) [2010] 2 AC 269. The ratio of AF (No.3) is to be found in the speech of Lord Phillips who said (at paragraph 65):

“The Grand Chamber [in A] has now made clear that non-disclosure cannot go so far as to deny a party knowledge of the essence of the case against him, at least where he is at risk of consequences as severe as those normally imposed under a control order.”

Lord Hope added (at paragraph 81):

“The controlled person must be given sufficient information about the allegations against him to give effective instructions to the special advocate. This is the bottom line, or the core irreducible minimum … that cannot be shifted.”

These cases were ones in which the procedural rights under the Convention were those under Articles 5(4) and 6. They have been applied in subsequent cases where Article 6 is engaged such as Tariq v Home Office [2010] EWCA Civ 462 and Bank Mellat v HM Treasury [2010] 1 WLR 1090. All this emboldens counsel to refer to the establishment of a “universal principle”.

In my judgment, these recent authorities on Articles 5(4) and 6 do not call into question the Al-Nashif line of authority. It is, as I have said, well-settled and there is no reason to suppose that it will or should now be developed in the manner for which the appellants’ counsel contend. So far as this Court is concerned, that would involve marching ahead of what Strasbourg jurisprudence has established. In R (Ullah) v Special Adjudicator [2004] 2 AC 323, Lord Bingham said (at paragraph 20):

“The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”

In Al-Skeini v Secretary of State for Defence [2007] UKHL 26 [2008] 1 AC 153 Lord Brown suggested (at paragraph 106) that the wording might well have ended “no less but certainly no more”, not least because a member state cannot take its case to Strasbourg after a national court has construed a Convention right too generously. In these circumstances, I conclude that the relevant Strasbourg principles in the context of Article 8 remain those propounded in the Al-Nashif line of authority.

The question now, therefore, is whether the procedure deployed by SIAC in these cases complies with that line of authority. I am entirely satisfied that it does. In RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110, the House of Lords gave a clear bill of health to the SIAC procedure in an Article 3 case. Lord Hoffmann said (at paragraph 178):

“The same is a fortiori of the claims of a potential violation of Articles 5, 6 and 8.”

See also Lord Hope (at paragraphs 229-233).

Notwithstanding the subsequent jurisprudence on Articles 5 and 6, there is no reason to suppose that the position in relation to Article 8 has changed. What the relevant authorities require is “independent scrutiny of the claim”. That language goes back to Chahal v United Kingdom (1996) 23 EHRR 413 (paragraph 151) dealing with the concept of “effective remedy” under Article 13. Independent scrutiny is a sine qua non of the protection against arbitrariness demanded by Al-Nashif. The need for “some form of adversarial proceedings” (Al-Nashif, paragraph 133) is satisfied by the proceedings in SIAC. To the extent (and it is often, as in some of these appeals, a considerable extent) that the proceedings are closed, the use of special advocates from the independent Bar reduces the risk of unfairness. No one suggests that the procedure is perfect. However, it is consonant with Strasbourg jurisprudence, from Chahal (where it was anticipated) to the more recent cases which, in relation to deportation or exclusion on national security grounds, countenance “appropriate procedural limitations on the use of classified information” (Al-Nashif, paragraph 133). Even where the Strasbourg Court focuses on Article 13 (which has not been incorporated into English law but is relied on in the present case as informing the procedural aspect of Article 8), it proceeds on the basis that “effective remedy” is one that is “as effective as can be having regard to the restricted scope for recourse inherent in any system of secret surveillance”: Klass v Federal Republic of Germany (1979-80) 2 EHHR 214. That which applies to secret surveillance applies equally to other forms of intelligence in the context of national security.

To encapsulate what I have said about the point of principle in this case: the procedural requirements of Article 8 do impact on a case of deportation or exclusion for national security reasons (assuming that there is an interference with family or private life) but they do not equiparate with the procedural requirements of Article 5 or Article 6. They have the more limited content set out in the Al-Nashif line of authority. The procedure in SIAC, as developed in the domestic jurisprudence, satisfies those requirements.

Some of the present appellants know more about the case against them than others. In particular, AN and AK had been arrested and detained on 8 April 2009 as part of a criminal investigation concerning a plot to carry out a mass-casualty attack in the North West. They knew that in the SIAC proceedings and they knew who their fellow suspects were – three men who were co-appellants in SIAC but who returned to Pakistan voluntarily before judgment. It is apparent from the SIAC judgment that the open case against them contained detailed allegations involving email traffic with an Al Qaeda operative. On the other hand, SIAC’s decisions were based “substantially or, in some instances determinatively” on closed material.

The open case against IR was more laconic. It was that he may have been involved “in the facilitation of terrorism-related activity whilst based in the UK, of which logistical support could be considered a part” and that “left unchecked, [his] facilitation of terrorism-related activity could contribute to the effective threat of action in the UK and may increase the likelihood of successful attacks”. As Mitting J put it, he was seen as “a fellow traveller with active Islamist extremists who may be willing to assist them”. The closed material persuaded SIAC that that assessment was justified.

The open case against GT was similarly terse: “closely involved with a network of Islamist extremists based in the UK and overseas”. Again, the case was made out by the closed material.

For any of these appellants to sustain a successful appeal to this Court, it would be necessary to establish an error of law on the part of SIAC. Having resolved the generic point of principle against them, I am unable to detect any such legal error.

I should add that, in any event, three of the appellants (I exclude GT) did not have highly developed private or family lives in this country but that is not the basis upon which I am founding this judgment.

On behalf of AN, Miss Harrison advances two further grounds of appeal which are also adopted by Mr Owen on behalf of AK. They were unrelated to the generic Article 8 point and to each other. They relate to (1) the disclosure history and (2) the evidence of one of the Secretary of State’s witnesses.

On 7 July 2010, almost two months after the SIAC decision in the case of AN, AK and others, AN was arrested on an extradition warrant whereby the United States of America sought his extradition on terrorist charges. Thereafter, in the course of control order proceedings, the Secretary of State has disclosed a witness statement of Najibullah Zazi dated 13 July 2010. He is presently in custody in the United States on terrorist charges. There was also disclosed a press release from the US Department of State. This material describes email contact between AN, Zazi and a known Al Qaeda operative in Pakistan. On behalf of AN, it is inferred that this material replicates part of the closed case against him in the SIAC proceedings. This is not disputed by Mr Tam QC. Miss Harrison submits that if the material was disclosable soon after the SIAC hearing, it ought to have been disclosed or at least gisted in those proceedings.

There are two answers to that submission. First, it does not follow that material disclosed in July could have been disclosed in or before May. Circumstances change. The American criminal proceedings have moved on. A number of individuals were indicted. Secondly, SIAC procedures ensure that the closed material is judicially considered and only found to be undisclosable on public interest grounds. The special advocates are aware of the point now taken by Miss Harrison. They have explained in a note that they do not feel able to support this ground of appeal. It is difficult to see how it can succeed without at least that support. Our jurisdiction on appeals from SIAC is limited to errors of law. No such error has been identified in this regard.

Miss Harrison also seeks to rely on the fact that some of this material had been foreshadowed in the Daily Telegraph on 9 January 2009, long before the SIAC hearing. However, that does not mean that its disclosure or further disclosure in the SIAC proceedings was not contrary to the public interest.

The witness

A witness who gave open evidence on behalf of the Secretary of State refused to answer some questions because he was unsure where the boundary lay between open and closed. It is suggested that this rendered the proceedings unfair. I consider this complaint to be unsustainable. For one thing, the subject-matter about which the witness was being asked did not feature in the adverse findings against AN. Moreover, there is nothing to gainsay Mr Tam’s submission that the witness was concerned about inadvertently disclosing information about ongoing investigations into other terrorist activity which disclosure would be contrary to the public interest. All this leads to the further observation that, if anything had been occurring which might have occasioned unfairness to AN, the special advocates could and would have made closed submissions about it and, if they did and were not satisfied by SIAC’s response, they could and would have pursued the matter in this Court. They have declined to do so. I am satisfied that there is nothing in this ground of appeal.

I should add that, although Mr Owen adopted both of these grounds of appeal on behalf of AK, he made no further submissions in relation to them.

It follows from what I have said that I would dismiss the appeals of all four appellants.

I agree.

I also agree.