BB, R (on the application of) v Special Immigration Appeals Commission & Anor

The appellant is an Algerian national. He arrived in the United Kingdom in 1995. On 15 September 2005, the Secretary of State for the Home Department (“SSHD”) gave notice of a decision to deport him pursuant to section 3(5)(a) of the Immigration Act 1971 (“the 1971 Act”) on the grounds that his deportation was conducive to the public good in the interests of national security. He was arrested and detained by the SSHD pending the making of a deportation order pursuant to para 2(2) of Schedule 3 to the 1971 Act. He appealed to the Special Immigration Appeals Commission (“SIAC”) against the decision to deport him. SIAC dismissed his appeal. But on 30 July 2007, this court allowed his appeal on “closed” grounds and remitted the case to SIAC for a rehearing. There have been further hearings and appeals, and these proceedings have not yet been finally determined.

The details of the appeal against the decision to deport the appellant are not material to the present appeal. The present proceedings concern his bail. SIAC has the power to release him on conditional bail to secure his future appearance before an immigration officer. The appellant was detained from 15 September 2005 until 22 April 2008. During that period, his applications for bail were refused on the basis of undisclosed national security material. Following the withdrawal by the SSHD of her objections, bail was granted by SIAC on 22 April 2008. Apart from two short periods of detention, he has remained on bail ever since. Bail was granted subject to strict curfew conditions on the basis of the undisclosed national security case. The curfew was initially 20 hours, but this was reduced to 18 hours in November 2008, 16 hours on 8 April 2011 and since earlier in 2012 to 8 hours per day.

The appellant sought judicial review of SIAC’s order of 24 June 2009 (bail with a curfew of 18 hours) on the ground that, since the curfew deprived him of his liberty, he was entitled by article 5(4) of the European Convention on Human Rights (“the Convention”) to disclosure of the gist of the allegations relied on against him. On 25 February 2011, the Divisional Court (Richards LJ and Sweeney J) upheld the appellant’s claim. On 8 April 2011, SIAC varied the conditions of bail to a curfew of 16 hours and directed a preliminary hearing to determine whether the disclosure obligations imposed by articles 5(4) or 6(1) applied. SIAC (Mitting J, SI Judge Gill and Sir Paul Lever) gave their decision on this issue on 27 May 2011. They held that the then current bail conditions did not deprive the appellant of his liberty and that article 5(4) therefore did not apply. They then considered whether article 6(1) applied to the hearing of the appellant’s bail application and held that it did not. Accordingly, the appellant’s challenge to his bail conditions fell to be determined by SIAC applying its procedural rules, in particular rule 4(1) and (2).

The appellant applied to the Divisional Court (Sir Anthony May and Maddison J) for judicial review of SIAC’s decision on the grounds that, by virtue of both articles 5(4) and 6(1), he was entitled to disclosure of the gist of the case against him. The application was dismissed on both grounds. The appellant does not seek to challenge the decision of the Divisional Court on the article 5(4) issue. But Mr Southey QC submits that the appellant was entitled to article 6(1) procedural protection and, therefore, had a right to be told the gist of the case against him in justification of the bail conditions that were imposed by SIAC. Essentially, this is a repeat of the submissions that were made in the court below. But Mr Southey also submits that the appellant was entitled to the same procedural protection by virtue of article 8.

Para 2(2) of Schedule 3 to the 1971 Act provides that where notice has been given to a person of a decision to make a deportation order, he may be detained under the authority of the SSHD “pending the making of a deportation order”. Para 2(4A) provides that paras 22 to 25 of Schedule 2 to the 1971 Act apply to a person so detained. Para 22(1) of Schedule 2 provides that a detained person may be released on bail by an immigration officer or the First Tier Tribunal (“FTT”). By section 3 of the Special Immigration Appeals Commission Act 1997, the provisions of Schedule 2 of the 1971 Act specified in Schedule 3 have effect (with modifications) to a person who is detained following a decision to make a deportation order against him on the ground that his deportation is in the interests of national security. The modifications include the substitution of the SIAC for the FTT in para 22 of Schedule 2 to the 1971 Act. In short, as I have said, the SIAC has the power to grant bail to a person who is detained pending deportation.

Article 6(1) provides, so far as material:

“In the determination of his civil rights and obligations….., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…..”

The critical question is whether civil rights are determined when bail is granted or withheld. If civil rights are not determined, then article 6 has no application. If they are determined, then it is not in dispute that article 6 applies and that (relevantly for the present case) it requires disclosure of the gist of the case relied on in support of the denial of bail or the imposition of conditions.

The starting point for a consideration of the issue is that it is common ground that decisions by the state regarding the entry, stay and deportation of aliens do not involve the determination of an applicant’s civil rights within the meaning of article 6. This principle has been stated by the ECtHR in a number of cases, including Maaouia v France (2001) 33 EHRR 42. The fact that the decision incidentally has repercussions on an applicant’s private or family life or on his employment or prospects of employment does not mean that it determines his civil rights: see the cases cited in Clayton and Tomlinson The Law of Human Rights (2^nd ed) at para 11.357.

Article 1 of Protocol No 7 to the Convention (“A1P7”) (agreed on 22 November 1984) is headed “procedural safeguards relating to expulsion of aliens”. It provides that, unless expulsion is necessary in the interests of public order or is “grounded on reasons of national security”, an alien who is lawfully resident in the territory of a state shall not be expelled except pursuant to a decision reached in accordance with law and he shall be accorded the procedural safeguards set out in para 1(a) to (c) of the article.

Since the reasoning which underpins the decision in Maaouia has been the subject of some debate before us, I need to refer to it in a little detail. The applicant was a Tunisian citizen. He was sentenced to a term of imprisonment by a court in France and made the subject of a deportation order following his release. When he failed to comply with the order, he was sentenced to a further term of imprisonment and was made subject to an order excluding him from France for 10 years. The Administrative Court quashed the deportation order and the Court of Appeal rescinded the exclusion order. Relying on article 6 of the Convention, he complained that the length of the entire proceedings was excessive and unreasonable. By a majority of 15 to 2, the ECtHR held that article 6 did not apply.

At para 35, the court noted that the Commission had consistently expressed the opinion that “the decision whether or not to authorise an alien to stay in a country of which he is not a national does not entail any determination of his civil rights or obligations…..within the meaning of article 6(1) of the Convention”. At para 36, the court referred to A1P7 and stated that its provisions showed that “the States were aware Article 6(1) did not apply to procedures for the expulsion of aliens”. The court referred to the following passages in the explanatory report on Protocol No 7:

“6.

In line with the general remark made in the introduction …, it is stressed that an alien lawfully in the territory of a member state of the Council of Europe already benefits from certain guarantees when a measure of expulsion is taken against him, notably those which are afforded by Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life), in connection with Article 13 (right to an effective remedy before a national authority) of the … Convention …, as interpreted by the European Commission and Court of Human Rights …

7.

Account being taken of the rights which are thus recognised in favour of aliens, the present article has been added to the … Convention … in order to afford minimum guarantees to such persons in the event of expulsion from the territory of a Contracting Party. The addition of this article enables protection to be granted in those cases which are not covered by other international instruments and allows such protection to be brought within the purview of the system of control provided for in the … Convention …

…

16.

The European Commission of Human Rights has held in the case of Application No. 7729/76 that a decision to deport a person does “not involve a determination of his civil rights and obligations or of any criminal charge against him” within the meaning of Article 6 of the Convention. The present articles does not affect this interpretation of Article 6.”

At para 37, the court said that it therefore considered that, by adopting A1P7, the Member States clearly intimated their intention not to include proceedings for the expulsion of aliens within the scope of article 6 of the Convention.

At para 38, the court concluded:

“In the light of the foregoing, the Court considers that the proceedings for the rescission of the exclusion order, which form the subject-matter of the present case, do not concern the determination of a “civil right” for the purposes of Article 6(1). The fact that the exclusion order incidentally had major repercussions on the applicant’s private and family life or on his prospects of employment cannot suffice to bring those proceedings within the scope of civil rights protected by Article 6(1) of the Convention.”

Mr Southey submits that the existence of A1P7 was the essential basis for the court’s conclusion in para 38. The implication of this submission is that, absent A1P7, the court would have held that proceedings for the expulsion of an alien did amount to a determination of civil rights. I do not agree. As we have seen, the court noted that the Commission had “consistently” expressed the opinion that proceedings for the expulsion of an alien do not entail the determination of a civil right. That opinion had been expressed before (and was independent of) the ratification of A1P7. This is confirmed by the explanatory report to which I have referred. Para 16 of that report referred to a case in which the Commission had held that a decision to deport a person did not involve a determination of his civil rights and stated in terms that A1P7 did not affect this interpretation of article 6. In other words, the previous understanding of the scope and interpretation of article 6 was unaffected by A1P7.

In my view, the reason given by the court for its conclusion at para 38 was simply that it had been the consistent interpretation of the Commission (with which the court implicitly agreed) that decisions whether or not to allow an alien to stay in a country of which he is not a national do not entail a determination of civil rights. That interpretation was confirmed and fortified by A1P7. It is true that the majority did not explain why they agreed with this consistent interpretation or articulate the reason for it. But Sir Nicolas Bratza did. He said:

“In general, I can agree that proceedings which exclusively concern decisions of administrative authorities to refuse leave to an alien to enter, to impose conditions on an alien’s leave to stay or to deport or expel an alien, do not involve the determination of the “civil rights and obligations” of the alien. In this regard, I see no reason to depart from the constant case law of the Commission that, because of the substantial discretionary and public order element in such decisions, proceedings relating to them are not to be seen as determining the civil rights of the person concerned, even if they inevitably but incidentally have major repercussions on his private and family life, prospects of employment, financial position and the like.”

The limits of the concept of a “civil right” were considered by the ECtHR in Ferrazzini v Italy (2002) 34 EHRR 45 where the court had to decide whether tax proceedings brought by the state against an individual involved the determination of a civil right within the meaning of article 6(1). It was argued by the Government that the existence of an individual’s tax obligation to pay tax belonged exclusively to the realm of public law and its determination did not involve a determination of a civil right. The court said:

“25.

Pecuniary interests are clearly at stake in tax proceedings, but merely showing that a dispute is “pecuniary” in nature is not in itself sufficient to attract the applicability of Article 6(1) under its “civil” head. In particular, according to the traditional case law of the Conventional institutions,

There may exist ‘pecuniary’ obligations vis-à-vis the State or its subordinate authorities which, for the purpose of Article 6(1), are to be considered as belonging exclusively to the realm of public law and are accordingly not covered by the notion of ‘civil rights and obligations’. Apart from fines imposed by way of ‘criminal sanction’, this will be the case, in particular, where an obligation which is pecuniary in nature derives from tax legislation or is otherwise part of normal civic duties in a democratic society.

26.

The Convention is, however, a living instrument to be interpreted in the light of present-day conditions, and it is incumbent on the Court to review whether, in the light of changed attitudes in society as to the legal protection that falls to be accorded to individuals in their relations with the State, the scope of Article 6(1) should not be extended to cover disputes between citizens and public authorities as to the lawfulness under domestic law of the tax authorities’ decisions.

27.

Relations between the individual and the State have clearly developed in many spheres during the 50 years which have elapsed since the Convention was adopted, with State regulation increasingly intervening in private-law regulations. This has led the Court to find that procedures defined under national law as being part of “public law” could come within the purview of Article 6 under its “civil” head if the outcome was decisive for private rights and obligations, in regard to such matters as, to give some examples, the sale of land, the running of a private clinic, property interests, the granting of administrative authorisations relating to the conditions of professional practice or of a licence to serve alcoholic beverages. Moreover, the State’s increasing intervention in the individual’s day-to-day life, in terms of welfare protection, for example, has required the Court to evaluate features of public law and private law before concluding that the asserted right could be classified as “civil”.

28.

However, rights and obligations existing for an individual are not necessarily civil in nature. Thus, political rights and obligations, such as the right to stand for election to the National Assembly, even though in those proceedings the applicant’s pecuniary interests were at stake, are not civil in nature, with the consequence that Article 6(1) does not apply. Neither does that provision apply to disputes between administrative authorities and those of their employees who occupy posts involving participation in the exercise of powers conferred by public law. Similarly, the expulsion of aliens does not give rise to disputes over civil rights for the purposes of Article 6(1) of the Convention, which accordingly does not apply.

29.

In the tax field, developments which might have occurred in democratic societies do not, however, affect the fundamental nature of the obligation on individuals or companies to pay tax. In comparison with the position when the Convention was adopted, those developments have not entailed a further intervention by the State into the ‘civil’ sphere of the individual’s life. The Court considers that tax matters still form part of the hard core of public-authority prerogatives, with the public nature of the relationship between the taxpayer and the tax authority remaining predominant…...”

It is clear, therefore, that the decision to deport the appellant in the present case did not involve a determination of his civil rights within the meaning of article 6. Mr Southey rightly accepts this. But what about a decision to detain pending deportation and a decision to grant conditional bail pending deportation? Although the present case is concerned with bail conditions, I think that, since in the present context bail is an alternative to detention, it is useful to start with detention.

The Strasbourg jurisprudence and, in particular, the rationale articulated by Sir Nicolas Bratza have obvious relevance here. The power to detain pending deportation is exercised by the SSHD pursuant to para 2(2) of Schedule 3 to the 1971 Act. It is a discretionary power which can only be exercised for the purpose of facilitating a deportation: see, for example, R (WL (Congo) v Home Secretary [2012] 1 AC 245, para 22. It belongs firmly in the realm of public law. Just as the power to deport is exercised by the state in the public interest, so too is the power to detain pending deportation. To use the language of Sir Nicolas Bratza, there is a substantial discretionary and public law element in the exercise of the power to detain. There is a close relationship between the decision to detain and the deportation order which it is intended to facilitate. The public law flavour of the latter infuses the former.

In support of the submission that there is no such close link between the decision to detain and the decision to deport, Mr Southey relies on Pomiechowski v District Court of Legnica, Poland [2012] UKSC 20, [2012] 1 WLR 1604. That was an extradition case in which the issue was whether the notice of appeal against a decision to extradite had been given within the relevant permitted period. It was held by the Supreme Court that article 5(4) of the Convention did not apply when the challenge related to a decision to extradite. Since the challenge was to the extradition decision, rather than to the fact (incidental to that decision) that they had been detained pending extradition, none of the arrested persons was entitled to a judicial decision under article 5(4). As Lord Mance explained at para 26, a careful distinction has been drawn by the ECtHR (for example, in Chahal v United Kingdom (1996) 23 EHRR 413) between (i) a challenge to a detention (to which article 5(4) applies) and (ii) a challenge to the underlying decision to which the detention is ancillary.

But this jurisprudence is concerned with the application of article 5(4). The court has clearly stated that, for article 5(4) purposes, there is an unbridgeable gulf between a detention and the underlying decision to which it is ancillary. Article 5(4) applies to the former, but not the latter. In the context of deportation, it can equally be said that article 5(4) applies to a detention pending deportation, but not to the deportation order to which the detention is ancillary. But this sheds no light on the very different question of whether article 6(1) applies to a detention in circumstances where it does not apply to the underlying decision. In my view, this line of authority is of no assistance in the present case.

I return to the question whether the detention of an individual pending deportation involves the determination of civil rights. The fact that the exercise of the power to deport will have an effect on an individual’s right to respect for private and family life or other rights does not mean that the exercise of the power involves a determination of the individual’s civil rights. So too, the fact that the detention of an individual pending deportation will affect him or her in this way does not mean that the detention involves a determination of civil rights. Nor can it be said that the exercise of the power to deport or to detain pending deportation is “decisive for private rights and obligations” within the meaning discussed in paragraph 27 of the judgment in Ferrazzini. The essential point is that the expulsion of an alien and his detention pending expulsion do not determine his civil rights. At most, they incidentally have an effect on those rights. The distinction is critical in the context of a state’s control over aliens who are within its territory. This is the point that Sir Nicolas Bratza was making in Maaouia which is also reflected in the last sentence of para 28 of Ferrazzini.

There is support for the view that a detention pending deportation does not involve the determination of civil rights in the decision of this court in R (Maftah) v Secretary of State for Foreign and Commonwealth Affairs [2011] EWCA Civ 350, [2012] QB 477. The claimants were aliens who, at the instigation of the Government of the United Kingdom, were placed on a list maintained by the Sanctions Committee of the United Nations Security Council. The purpose and effect of the listing was to freeze all their assets and place the release of any funds in the discretion of the Executive. The question was whether the listing involved a determination of civil rights within the meaning of article 6(1). The court held that it was not. Sedley LJ gave the principal judgment. Having referred to Ferrazzini, at para 24 he said:

“What seems to me to emerge from the present Strasbourg jurisprudence is that, while civil rights within the autonomous meaning of article 6 can be brought into play either by direct challenge or by administrative action, it is the nature and purpose of the administrative action which determines whether its impact on private law rights is such that a legal challenge to it involves a determination of civil rights. Thus, for example, the nature and purpose of taxation are such that, despite its direct impact on property rights, taxation falls outside article 6; while the nature and purpose of professional regulation are such that its impact on the right to earn a living may bring it within article 6.”

And at para 26, he said:

“In my judgment the critical question is therefore the one spelt out in para 24 above, uncoloured by the rhetoric of state sovereignty. I confess that I find the categorisation of freezing orders in this context extremely difficult, because the nature and purpose of freezing orders can themselves be legitimately described both as a step in the international struggle to contain terrorism and as a targeted assault by the state on an individual’s privacy, reputation and property. The heart of Keith J’s decision [2010] EWHC 1868 (Admin) was that the orders were in form the first but in substance the second of these things; but I am not convinced that the Strasbourg jurisprudence looks to this distinction. It seems to look, rather, to the nature of the power itself. So seen, the making or procuring of a freezing order is, I think, a discharge of public functions, albeit with a dramatic impact on the civil rights of individuals. It is challengeable in public law, but the challenge is to the procuring and continuance of the order, not to its effects.”

This reasoning applies with equal force in the present context. The nature and purpose of detaining an alien pending deportation is the discharge of a public function, namely the deporting of a foreign national whose presence in the United Kingdom is judged not to be conducive to the public good. That is “part of the hard core of public authority prerogatives” (to quote from para 29 of Ferrazzini).

I conclude, therefore, that the detention of an individual pending his or her deportation does not involve a determination of civil rights within the meaning of article 6 of the Convention.

What about the grant of conditional bail? It would be most surprising if article 6(1) were to apply to bail, but not to apply to detention. First, bail is granted (as an alternative to detention) in order to facilitate a deportation. Like detention, the grant of bail is just as much an exercise of power in the realm of public law as is the deportation to which it is ancillary. Secondly, it makes no sense to afford greater procedural protection to an individual who is challenging the conditions of bail than to one who is challenging a notice of detention. It hardly needs to be said that to deprive a person of his liberty is a greater interference with his freedoms than to grant him bail subject to conditions (which fall short of detention). Indeed, some bail conditions may cause little more than inconvenience.

Mr Southey sought to support his case that detention (or the grant of bail) pending deportation involves the determination of a civil right by relying on ECtHR case law that article 6(1) applies to a state’s refusal to permit an immigrant to take up employment. In Jurisic and Collegium Mehrerau v Austria (No 62539/00, 27 July 2007) and Coorplan-Jenni Gmb H and Hascic v Austria (2008) 46 EHRR 26, immigrants and their would-be employers had been denied an oral hearing of their appeal from a refusal to issue a work permit. The Austrian government argued that any right at issue was not “civil” within the meaning of article 6(1) because “although a decision concerning [a work] permit had certain effects on relationships under civil law, its primary purpose was public”: see Coorplan-Jenni at para 46. The court rejected this argument at para 54:

“….the validity of an employment contract concluded between an employer and a foreign employee is in principle dependent on the grant of an employment permit. Therefore, the outcome of the proceedings at issue has to be considered directly decisive for the second applicant’s relations in civil law and this concerned its ‘civil’ rights”.

In my view, these decisions have no relevance in the present context. The validity of an employment contract plainly raises a civil rights issue. It is, therefore, hardly surprising that the government’s refusal of a work permit was held to involve the determination of a civil right. The analogue to the validity of the employment contracts in the Austrian cases is the validity of the notice of deportation in the present case. The former entails the determination of a civil right; the latter does not.

There was also discussion before us as to whether the grant of conditional bail is analogous to the making of a control order under the Prevention of Terrorism Act 2005. It is not in doubt that, if a control order amounts to detention, the controlee’s rights to have the lawfulness of his detention decided by a court under article 5(4) of the Convention imports the fair trial requirements of article 6(1): see A v United Kingdom (2009) 49 EHRR 625 and Home Secretary v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269. These requirements include the disclosure to the controlee of the gist of the case against him. It is, therefore, clear that the article 6(1) fair trial requirements would apply to proceedings brought to challenge the lawfulness of a detention. But that would be by virtue of article 5(4).

It has also been held that the article 6(1) fair trial requirements apply to a control order which does not amount to a detention so as to engage article 5(4): see per Collins J in Home Secretary v BC [2009] EWHC 2927 (Admin), [2010] 1 WLR 1542. Neither party to the present appeal contended that this decision was incorrect. Nevertheless, I would reject the analogy with control orders that Mr Southey seeks to draw. Collins J himself said that there was an important difference between control orders and deportation orders: see para 20, where he said that control orders were “not part of the hard core of public authorities’ prerogatives”. Rather they were “specific and exceptional novel provisions which control the activities of individuals and prevent them from exercising all those rights which a citizen of this country generally is able to exercise”. He distinguished Maaouia on the ground that the effect of control orders on an individual could not be said to be incidental. By contrast, he said at para 39: “in deportation cases, of course, the potential violation of the articles in question will be incidental.”

In my view, the jurisprudence relating to control orders is of no assistance in the present context. Control orders were not made by the state exercising its power to decide whether aliens were to be permitted to remain within its boundaries (a classic public law activity not involving the determination of civil rights). They were made to control the freedom of movement of those who otherwise enjoyed all the freedoms of a citizen of this country. I acknowledge that it may be thought to be somewhat arbitrary to say that a decision to deport an alien does not involve the determination of civil rights, whereas a decision to make a control order does. To use the language of Sir Nicolas Bratza in Maaouia, there is a substantial discretionary and public order element in both decisions. For that reason, it is open to question whether Collins J was right to say that the making of control orders was not part of the hard core of public authority prerogatives. But whatever the position may be with regard to control orders, it is clear that the ECtHR has consistently said that decisions regulating the ability of aliens to enter and stay in this country do not determine civil rights and obligations. There is no reason not to apply this clear and constant line of authority.

I would, therefore, dismiss the appeal on the article 6 issue because (i) the decision to deport the appellant did not involve a determination of his civil rights and (ii) the grant of bail pending deportation (being ancillary to the deportation) did not do so either.

Before leaving this issue, however, I should mention that it was also submitted by Mr Tam QC that, even if the deportation does involve the determination of a civil right, article 6(1) does not apply to the grant of bail pending deportation because bail proceedings do not determine a civil right, since they are in the nature of interlocutory proceedings. In view of the conclusion that I have already reached, I can deal with this submission briefly. The Strasbourg jurisprudence establishes that preliminary proceedings or what are referred to as “interim measures” do not normally determine civil rights: see, for example, Micallef v Malta (2010) 50 EHRR 37 at para 75. The paradigm example of this principle is an application for an interlocutory injunction pending the determination of a civil right in the main proceedings. Exceptionally, article 6 applies to interim measures where “the measure requested was drastic, disposed of the main action to a considerable degree, and unless reversed on appeal would have affected the legal rights of the parties for a substantial period of time”: see Micallef para 75. But that exception clearly has no application here: the conditions of bail pending deportation can have no effect on the question whether the individual should be deported.

Accordingly, if deportation does involve the determination of a civil right, on an application of the “interim measures” principle, article 6(1) would not apply to the bail proceedings in any event. But for the reasons that I have given, deportation does not involve the determination of a civil right.

As we have seen, the article 6 issue raises the question whether the imposition of bail conditions involves the determination of civil rights. The article 8 issue raises a different kind of question. It is accepted by Mr Tam that the bail conditions imposed on BB interfere with his article 8 rights. Article 8(2) provides that there shall be no interference by a public authority with the exercise of the right to respect for private and family life “except such as is in accordance with the law and is necessary in a democratic society in the interests of national security….”

The ECtHR has held in a number of cases that, even where national security is at stake, the concept of the rule of law in a democratic society requires 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; and the individual “must be able to challenge the executive’s assertion that national security is at stake”: see Al-Nashif v Bulgaria (2003) 36 EHRR 37 paras 123-124..

Mr Southey submits that disclosure to an applicant of the gist of the national security allegations relied on by the SSHD in support of the bail conditions is an essential aspect of the procedural guarantees required by article 8. This argument was not advanced before the Divisional Court: it was precluded by the decision of this court in IR (Sri Lanka) v Home Secretary [2011] EWCA Civ 704, [2012] 1 WLR 232. In that case, the applicants, who were foreign nationals, were excluded from, or refused leave to remain in, the United Kingdom on the grounds of national security. They appealed to the SIAC. During the appeals, the SSHD relied on closed material and special advocates were appointed to represent the interests of the applicants. The appeals were dismissed in part in reliance on the closed material. The issue was whether article 8 entitled them to a standard of procedural fairness which included the disclosure of information relating to the national security case against them. Maurice Kay LJ (with whom Thomas and Black LJJ agreed) reviewed the Strasbourg jurisprudence including Al-Nashif and rejected the submission that this approach should be reassessed in the light of A v United Kingdom and Home Secretary v AF (No 3). At para 19, he said:

“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 Chalal v United Kingdom (1996) 23 EHRR 413, para 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's case 36 EHRR 655. The need for “some form of adversarial proceedings” (Al-Nashif's case, para 123) 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's case (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”: see Al-Nashif's case, para 123. 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”: see Klass v Federal Republic of Germany (1978) 2 EHRR 214, para 69. That which applies to secret surveillance applies equally to other forms of intelligence in the context of national security. ”

He concluded at para 20:

“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. ”

Mr Southey submits that the Al-Nashif line of authority must now be understood or reassessed in the light of the more recent decision of the First Section of the ECtHR in Liu v Russia (No 2) (application no 29157/09, 26 July 2011). In that case, the applicants complained that the refusal to grant a residence permit to the first applicant and his subsequent removal to China had been an interference with their right to respect for family life contrary to article 8. They appealed to the Regional Court. That court examined some classified documents which contained information about the security risk posed by the first applicant and dismissed the applicants’ claims. They appealed to the Supreme Court of the Russian Federation on the grounds that they had not been given access to the classified materials, but merely informed about their contents in general terms.

At para 30, the ECtHR said that it was “settled case-law that, 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 to the individual by Article 8”. At para 87, the court reiterated:

“that 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. The individual must be able to challenge the executive’s assertion that national security is at stake. Failing such safeguards, the police or other State authorities would be able to encroach arbitrarily on rights protected by the Convention (see Al-Nashif v. Bulgaria, no. 50963/99 §§ 123 and 124, 20 June 2002).”

This is indeed a reiteration of the previous “settled case-law”: see para 36 above. There is no hint here that the court was about to depart from a well-worn path. In the following paragraphs of their judgment, the court gave three reasons for concluding that sufficient procedural guarantees were not afforded to the applicants in that case.

First, at para 88 they said that the domestic courts refused to examine whether the actions imputed to the first applicant were capable of endangering national security. Secondly, at para 89 they said that the national courts had confined themselves to a purely formal examination of the decision to refuse a residence permit to the first applicant and had not verified the factual basis of the allegations against him.

There can be no doubt that these two reasons were a straightforward application of settled case-law. But it is the third reason which Mr Southey submits was new. This was that (i) the applicants were only give an outline of the national security case against the first applicant; (ii) the disclosed allegations were of a general nature; and (iii):

“No specific allegations mentioning the locations and dates of the actions allegedly committed by the first applicant were divulged to the applicants, making it impossible for them to effectively challenge the security services’ assertions by providing exonerating evidence, for example an alibi or an alternative explanation for the first applicant’s actions (see A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 220 – 224, ECHR 2009 …).”

At para 91, the court concluded:

“Although the Court observes that some of the procedural defects indicated in its judgment of 6 December 2007 were corrected during the new examination of the applicants’ case, it cannot but note that when correcting those defects, the domestic authorities preferred an approach which might be described as formalistic. Thus, it is satisfied that the classified materials from the Federal Security Service were disclosed to the domestic courts and, at least in part, to the applicants. However, the analysis of the domestic judgments reveals that the courts considered themselves incompetent to verify the factual basis for the finding contained in those materials that the first applicant constituted a danger to national security. It also appears that, given the general nature of the allegations against the first applicant, the applicants were not in a position effectively to challenge them. The Court therefore considers that, although during the new examination of their case the applicants were afforded certain procedural guarantees against arbitrariness, those guarantees were not adequate and sufficient to satisfy the procedural requirements of Article 8.”

Mr Southey emphasises the reference in para 90 to paras 220 to 224 of the judgment in A v United Kingdom. In his original skeleton argument, he submitted that Liu (No 2) represents a significant development in the approach of the ECtHR as to the content of the procedural guarantees implicit in article 8 and that, since this development postdates IR (Sri Lanka),we are not bound by that decision. In his oral submissions (and a supplementary written note) Mr Southey submitted that the court in Liu (No 2) was applying well established principles as to the requirements of procedural effectiveness in a national security context.

I do not consider that Liu (No 2) represents a shiftin the thinking of the ECtHR. The court did not purport to make any new law. Indeed, it referred explicitly to and purported to apply the “settled case-law”. Para 124 of the judgment in Al-Nashif articulated the principle that an individual should be able to challenge a decision based on national security grounds. This was not new. One of the reasons given in Liu (No 2) for holding that the procedural requirements of article 8 were not satisfied was that, on the facts of that case, the applicant was not able to make an effective challenge to the allegation that national security was at stake. If it were a requirement of article 8 that the same article 6(1) protections are necessarily imported into article 8 as are imported into article 5(4), that would surely have been stated explicitly. No decision of the ECtHR has been cited to us which makes this statement explicitly or impliedly.

Mr Southey referred to a number of other cases, including Lupsa v Romania (2006) 46 EHRR 810, Turek v Slovakia (2007) 44 EHRR 43, CG Bulgaria (2008) 47 EHRR 51 and Raza v Bulgaria (Application No 31465/08, 11 February 2010). All of these were cited to the Court of Appeal in IR (Sri Lanka) and all but the last of them were referred to in the judgment of Maurice Kay LJ. None of them indicates that the correct approach is different from that stated in Al-Nashif.

In these circumstances, this court is bound by IR (Sri Lanka) to hold that the ECtHR authorities on article 5(4) and article 6 do not call into question the Al-Nashif line of authority and that the SIAC procedure for dealing with article 8 challenges to deportation orders in national security cases complies with that line of authority (see para 18 of the judgment of Maurice Kay LJ).

We should only decline to follow IR (Sri Lanka) if we are satisfied that there has been a subsequent clear line of Strasbourg jurisprudence which shows that it was wrongly decided. There is no such clear line of authority. Mr Southey has been able to point to only one case which, for reasons that I have attempted to explain, does not purport to change the law.

I accept the submission of Mr Tam that Liu (No 2) simply represents a further application of the well-settled line of ECtHR authority which was applied in IR (Sri Lanka). The reference to A v United Kingdom in Liu (No 2) should not be taken asindicating a new approach by the ECtHR. The conclusion in the final sentence of para 91 of the judgment in Liu (No 2) was that the cumulative effect of the three reasons to which I have referred was that, overall, there had not been sufficient procedural guarantees to protect the applicants from arbitrariness and a breach of the rule of law. The fact that the reasoning contains but a single reference to A v United Kingdom shows that this was regarded as being no more than an example of a case illustrating the impossibility of an effective challenge. The judgment gives no reasoning or explanation as to whether or why a standard applicable to article 5(4) or 6(1) cases should be applied by extension to article 8 cases.

That is sufficient to dispose of this ground of appeal. But I should add that I agree with the decision and reasoning in IR (Sri Lanka) in any event. What is required to enable an individual to make an effective article 8 challenge in the context of national security is not spelt out in Liu (No 2) or any other authority to which our attention has been drawn. It is well established that an applicant must be able to make an effective challenge. What is required for an effective challenge will depend on the facts of the case.

If the interference with an individual’s article 8 rights amounts to a deprivation of his liberty, then the article 6 rights inherent in article 5 apply even in a national security context: see A v United Kingdom. But it does not follow that an individual is entitled to the same procedural protections in a national security context where the interference with his article 8 rights falls short of a deprivation of liberty. As to this, I agree with what Maurice Kay LJ says in IR (Sri Lanka) at para 19 (see para 37 above). I should add that what should be taken into account in determining the procedural protections that are required in this context is (i) the extent of the interference with the article 8 right and (ii) the nature of the national security interests at stake. Thus, for example, what is required where bail conditions involve only a modest interference with an individual’s article 8 rights may differ from what is required where the interference is substantial.

For the reasons stated above, I would dismiss this appeal on both the article 6 and article 8 issues.

I agree.

I also agree.