W (Algeria) & Ors v Secretary of State for the Home Department

In national-security deportation appeals before SIAC, the Commission cannot give an absolute and irrevocable guarantee that material supplied by an appellant will never be disclosed to a foreign state. It must be able to receive the Secretary of State’s assessment of that material and retain power to regulate disclosure.

The principle of legality does not permit the Special Immigration Appeals Commission (Procedure) Rules 2003 to be read down where their meaning is clear and the rule-making power in the Special Immigration Appeals Commission Act 1997 authorises the interference with fair-trial rights. There is no universal requirement to disclose the essence of the national-security case. The Article 6 control-order authorities do not govern deportation proceedings, because Article 6 is not engaged.

Eight appeals were brought from decisions of the Special Immigration Appeals Commission. In each case SIAC had upheld the Secretary of State’s decision to deport the appellant on national-security grounds. Each appellant claimed that deportation would expose him to treatment contrary to Article 3 of the European Convention on Human Rights.

Permission to appeal was granted on two procedural questions arising under the Special Immigration Appeals Commission Act 1997 and the Commission’s procedure rules: whether an appellant could obtain protection analogous to closed evidence for material supplied by his witnesses, and whether he had to receive an irreducible minimum of information about the national-security case against him.

Sir David Keene gave the leading judgment. Lord Justice Sullivan and Lord Justice Jacob agreed.

1. Reverse closed evidence. SIAC could make directions preventing disclosure after considering the Secretary of State’s submissions. It could not, before the Secretary of State had seen the material, give an absolute and irrevocable guarantee that the material would never be disclosed to the authorities of the appellant’s country of origin. The Secretary of State had to be able to investigate reliability, assess the material with other information, and apply to vary or discharge any interim order. Anonymity orders and private hearings could mitigate the risk to sources, but could not produce the guarantee sought.
2. Statutory priority of non-disclosure. Rule 4 of the Special Immigration Appeals Commission (Procedure) Rules 2003 makes SIAC’s duty to ensure that it has sufficient material to determine proceedings subject to its duty to prevent disclosure harmful to national security or the public interest. Rule 38 requires an objection to disclosure to be upheld where disclosure would harm the public interest. Any summary must exclude harmful information.
3. Principle of legality. The common law recognises a fundamental right to know the substance of the case to be answered. Parliament may limit that right by express words or necessary implication. Here the Rules were clear and unambiguous. Section 5 of the Special Immigration Appeals Commission Act 1997 authorised the Lord Chancellor to balance proper review against protection of the public interest, and section 6 recognised the need for special advocates where appellants might not see the closed material. The court could not read the Rules down outside the distinct power in section 3 of the Human Rights Act 1998.
4. Article 6. The control-order decisions in Secretary of State for the Home Department v MB [2007] UKHL 46 and Secretary of State for the Home Department v AF (No. 3) [2009] UKHL 28 concerned proceedings engaging Article 6. Deportation proceedings do not engage Article 6, even where Article 3 consequences arise. Maaouia v France [2000] 33 EHRR 1037 therefore applied.
5. RB (Algeria). The ratio of RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10 applied to SIAC deportation appeals whatever issue was raised. The Rules therefore disclosed no irreducible minimum of information which had to be provided where disclosure would harm national security or the public interest.

All eight appeals were dismissed.

• Court of Appeal (Civil Division) dismissed the eight appeals and rejected both procedural grounds.
• Special Immigration Appeals Commission had upheld the Secretary of State’s national-security deportation decisions in each case.