Secretary of State for the Home Department v M

On an appeal against certification as a suspected international terrorist, the Special Immigration Appeals Commission must make its own objective judgment about whether reasonable grounds exist for the Secretary of State’s belief or suspicion. Reasonableness requires a value judgment based on all the evidence and the competing consequences for public safety and individual liberty.

The Court of Appeal may intervene only on a material question of law. It may set aside a decision unsupported by evidence, perverse or affected by a failure to consider a relevant matter. Assistance to an Al Qa’ida-linked person requires reasonable suspicion of actual knowledge or deliberate blindness to the obvious; merely establishing what the person ought to have known is insufficient.

The Secretary of State sought permission to appeal against a decision of the Special Immigration Appeals Commission dated 8 March 2004. SIAC had allowed M’s appeals against his certification as a suspected international terrorist under section 21 of the Anti-terrorism, Crime and Security Act 2001 and against the associated deportation decision.

M was a Libyan national whom the Secretary of State suspected of supporting international terrorist networks associated with Al Qa’ida. After examining open and closed evidence, assisted by special advocates, SIAC found that several official assessments were unsupported or misleading and that reasonable suspicion had not been established.

The central issue was whether SIAC’s assessment disclosed a material error of law, including perversity, failure to consider the evidence as a whole or failure adequately to explain its conclusion.

1. Permission to appeal was refused. Under section 7(1) of the Special Immigration Appeals Commission Act 1997, an appeal from SIAC lies only on a material question of law. The Court of Appeal could intervene if SIAC’s decision lacked any evidential support, was one no tribunal could properly reach, or was otherwise perverse. None of those grounds was established.

2. Under section 25 of the Anti-terrorism, Crime and Security Act 2001, SIAC does not merely review or second-guess the Secretary of State. It must reach its own judgment on whether reasonable grounds exist for the belief or suspicion required by section 21. The inquiry is objective, but reasonableness entails a value judgment informed by all the circumstances. Those circumstances include both the danger of releasing a person who should be detained and the grave intrusion caused by detention without charge, trial or disclosure of the full case.

3. SIAC had considered the evidence both individually and as a whole. It recognised the suspicious circumstances but was entitled to conclude, after close analysis and testing by the special advocate, that the assessments relied upon were unreliable and did not establish reasonable suspicion. Its conclusion was supported by evidence, was not perverse and omitted no relevant consideration.

4. For assistance or support of Al Qa’ida-linked extremists, the formulation that a person “ought to have known” was too favourable to the Secretary of State. In the absence of reasonable suspicion of actual knowledge, there must be reasonable suspicion that the person deliberately closed his eyes to the obvious.

5. The Court emphasised that SIAC had not overruled the Secretary of State. It had performed its statutory duty to decide the matter independently on evidence tested more fully than it had been before the original decision-maker. The use of special advocates could materially reduce the disadvantage caused by closed evidence and, in this case, enabled the detained person to obtain justice.

1. Court of Appeal (Civil Division): The Secretary of State’s application for permission to appeal was refused. SIAC’s decision disclosed no material error of law, perversity or failure to consider relevant evidence: [2004] EWCA Civ 324.

2. Special Immigration Appeals Commission: On 8 March 2004, SIAC allowed M’s appeal against certification under section 21 of the Anti-terrorism, Crime and Security Act 2001, cancelled the certificate and allowed his appeal against the associated deportation decision.