Z & Ors v Secretary of State for the Home Dept

On an application for permission to appeal in national-security deportation proceedings, a proposed ground warrants permission where it raises an arguable point of law of general principle. The absence of an express statutory or procedural-rule basis for reverse closed evidence did not make the issue unarguable. Although Article 6 of the ECHR does not apply, domestic law may arguably require disclosure, as a matter of procedural fairness, on whether a person poses a threat to national security in the United Kingdom. Grounds confined to factual or evidential complaints, perversity, or insufficient reasoning did not qualify. Permission was therefore confined to the two general-principle issues.

Eight applicants, seven Algerian nationals and one Jordanian national, challenged extant decisions of the Special Immigration Appeals Commission supporting their deportation on national-security grounds. After a lengthy procedural history, the applications were listed together for permission to appeal.

The central issues were whether SIAC could provide protection analogous to closed evidence where the evidence was tendered by an appellant, and whether procedural fairness required disclosure of material bearing on the risk posed by an appellant to national security in the United Kingdom. Additional grounds concerned factual and evidential matters, expert evidence, reasoning, and SIAC’s reliance on a related French judgment.

1. Disposition. Permission to appeal was granted to Y, G, Z, U, BB and VV, but only on the two general-principle grounds. Permission was refused to PP and W.
2. Reverse closed evidence. SIAC is a statutory body whose procedures are governed by rules made under statute. The court found no support in the statute or the Rules for reciprocity between the Secretary of State’s closed evidence and evidence which an appellant wished to adduce confidentially. There was cogent reason to conclude that the Rules did not permit the proposed procedure. Rule 43(2) permitted a private hearing, but not the enforced absence of a party, and Rule 39(5)(h) permitted witness anonymity. Nevertheless, the issue was difficult and important enough to be arguable and required full consideration on appeal.
3. Disclosure and procedural fairness. The applicants accepted that, because Article 6 of the ECHR did not apply to national-security deportation cases, there was no further argument about disclosure concerning safety on return. That did not resolve the distinct question whether domestic procedural fairness required disclosure on the prior issue of whether an appellant posed a threat to national security in the United Kingdom. A v United Kingdom and SSHD v AF(No.3) [2009] UKHL 28 had altered the control-order disclosure context. Material in the speech of Lord Brown made the proposed domestic-law argument sufficiently arguable to justify permission.
4. Other grounds. Complaints directed to factual or evidential matters raised no arguable points of law. None showed an arguable case of perversity or insufficiency of reasoning. It was appropriate to consider an individual SIAC judgment alongside other Commission judgments on a cognate issue under the building-blocks approach. In PP’s case, it was not arguably unlawful for SIAC to have regard to a related French judgment. The fairness criticisms did not establish an arguable legal error. W’s submissions were substantially factual.
5. The appeals were expedited. Amended grounds and replacement skeleton arguments were directed, with liberty to apply in writing for further directions.

• Court of Appeal (Civil Division): On 27 November 2009, permission to appeal was granted to six applicants on two limited grounds of general principle and refused to two applicants.
• Special Immigration Appeals Commission: Extant decisions stood in favour of the Secretary of State in each case. The proceedings were identified as SIAC reference SC342005.