A v Secretary of State for the Home Department (X v Secretary of State for the Home Department)

A derogation from Article 5 does not create an implied derogation from Article 14. Foreign nationals liable to deportation but temporarily protected from removal are not necessarily in an analogous situation to nationals, who have a right of abode. In a public emergency threatening the life of the nation, Parliament may confine exceptional detention powers to such foreign nationals where the distinction is objectively justified, rationally connected to a legitimate aim and proportionate. Courts must scrutinise the existence and scope of the emergency, but should give appropriate weight to the executive’s assessment of national security and necessity. The measures remained subject to review by the Special Immigration Appeals Commission and, on the facts, did not breach Articles 3 or 6.

The Secretary of State appealed from the Special Immigration Appeals Commission’s decision of 30 July 2002. SIAC had quashed the Human Rights Act 1998 (Designated Derogation) Order 2001 and declared section 23 of the Anti-Terrorism, Crime and Security Act 2001 incompatible with Articles 5 and 14 of the Convention, because the detention scheme applied only to suspected international terrorists who were foreign nationals.

The respondents cross-appealed on issues including the existence of a public emergency, the strict necessity of the measures, procedural fairness under Article 6 and treatment under Article 3. The central questions were whether the derogation was lawful and whether the differential treatment of nationals and non-nationals was discriminatory.

The Court of Appeal unanimously allowed the Secretary of State’s appeal, dismissed the respondents’ cross-appeals and set aside SIAC’s order.

1. Article 14 and the derogation. Lord Woolf CJ held that Article 14 could still operate with Article 5 notwithstanding the derogation. The derogation concerned the extended duration of detention and did not remove protection against discrimination in matters outside its scope.
2. Judicial scrutiny and emergency. SIAC had not misunderstood its function. It was required to examine the material and decide whether the Secretary of State’s assessment could be supported, while allowing appropriate deference on national security questions. An emergency may be actual or imminent even though no terrorist attack is imminent. International terrorism directed abroad may nevertheless threaten the life of the nation. Brooke LJ adopted the Strasbourg approach in Lawless, Brannigan and McBride and Marshall.
3. Strict necessity. The extended power under section 23 of the Anti-Terrorism, Crime and Security Act 2001 could be used only within the emergency identified by the derogation. Its apparently wider wording was not material because SIAC could supervise its use. The relevant class comprised persons certified under section 21, liable to deportation and prevented from removal by law or practical considerations. SIAC’s finding that detention of that class was strictly required was a finding of fact which disclosed no appealable error.
4. Discrimination. Applying the framework in Michalak, nationals and non-nationals were not in an analogous situation. Nationals had a right of abode; non-nationals had only a right not to be removed while removal would breach their rights. That distinction supplied an objective and reasonable justification, with a rational connection and proportionate relationship to the aim of detention pending deportation or resolution of the emergency. International law also recognised a state’s power in a comparable emergency to treat non-nationals differently.
5. Other grounds. The proceedings were civil rather than criminal. Considering the proceedings as a whole, including the appeal and the special advocate procedure, Article 6 was not infringed. The detention scheme was not shown to constitute inhuman or degrading treatment contrary to Article 3.

• Special Immigration Appeals Commission: On 30 July 2002, SIAC quashed the Human Rights Act 1998 (Designated Derogation) Order 2001 and made a declaration under section 4 of the Human Rights Act 1998 that section 23 of the Anti-Terrorism, Crime and Security Act 2001 was incompatible with Articles 5 and 14.
• Court of Appeal: The Secretary of State’s appeal was unanimously allowed, the respondents’ cross-appeals were dismissed and SIAC’s order was set aside.