BY v Secretary of State for the Home Department

Permission to appeal in a national-security refusal-of-entry case should be refused where the proposed grounds have no real prospect of success and no other compelling reason supports permission. RB (Algeria) and others v SSHD establishes that Article 6 of the ECHR is not engaged in SIAC deportation proceedings and that the specific SIAC procedure is fair; that reasoning applies with greater force to refusal of entry. The civil standard of proof is appropriate in SIAC proceedings. EU law does not require a higher level of disclosure where Article 30(2) of Directive 2004/38/EC permits disclosure to be limited in the interests of State security. The Strasbourg decision in A v United Kingdom, concerning indefinite detention without trial, does not materially assist in the different context of refusal of entry.

The applicant, an Indian national and member of a proscribed extremist Sikh organisation, lived in Germany with refugee status and was married to a British citizen. His application for entry clearance as a spouse had been refused under paragraph 320(6) of the Immigration Rules on national-security grounds. His later application for an EEA family permit under regulations 9 and 12 of the Immigration (European Economic Area) Regulations 2006 was also refused.

SIAC dismissed his appeal after considering open and closed judgments. The applicant sought permission to appeal on grounds concerning Article 6 of the ECHR, the standard of proof, proportionality, and the fairness of SIAC’s procedure under EU law, relying in particular on A v United Kingdom. The central issue was whether any proposed ground had a real prospect of success or disclosed another compelling reason for granting permission.

1. Permission refused. The original grounds and the reformulated ground did not have a real prospect of success, and no other compelling reason justified permission.
2. Article 6 of the ECHR was not engaged. RB (Algeria) and others v SSHD [2009] UKHL 10 held that Article 6 did not apply in a SIAC deportation case and that the SIAC procedure, governed by specific procedural rules, was fair. That reasoning applied a fortiori to refusal of entry on national-security grounds.
3. The criminal standard of proof was not required. The civil standard was the appropriate standard in SIAC proceedings, as explained in ZZ v SSHD [2008] UKSIAC 63. The reasons for rejecting the criminal standard were described as unassailable.
4. The proportionality challenge had no realistic prospect. SIAC’s open judgment showed that the decision had taken account of findings in the closed judgment, and there was no basis for challenging those findings.
5. EU law did not require a higher level of procedural protection. Article 30(2) of Directive 2004/38/EC modified the disclosure obligation where disclosure would be contrary to State security. SIAC procedures, particularly Rule 4 of the SIAC Procedural Rules, reflected that qualification.
6. A v United Kingdom (Application No 3455/05) was materially different. It concerned a serious Article 5 breach arising from detention of unspecified duration without trial, whereas this case concerned the lesser interference of refusal of entry. The Strasbourg decision therefore did not create a real prospect of success.

Order: application refused.

• Court of Appeal (Civil Division): Permission to appeal from SIAC was refused. The appeal to SIAC had been dismissed.
• Special Immigration Appeals Commission: The applicant’s challenges to refusals of entry and an EEA family permit were dismissed. SIAC held that refusal on national-security grounds was proportionate.