U, R (on the application of) v Special Immigration Appeals Commission & Anor

A challenge to a bail decision by the Special Immigration Appeals Commission is not an appeal on the merits. In this sensitive national-security context, judicial review will rarely succeed on irrationality grounds. A sharp-edged error of law is required. Where the alleged legal issue did not affect the tribunal’s decision, the court should ordinarily decline to decide it, particularly where the issue is an imprecise precautionary approach whose legality would be better assessed against concrete facts.

The claimant sought judicial review of SIAC’s decision to revoke his bail. SIAC had previously revoked bail relying entirely on closed material, but this court had held in Cart, U and XC v The Child Maintenance and Enforcement Commission and SIAC [2009] EWHC 3052 that such a procedure violated Article 5(4) of the European Convention on Human Rights.

SIAC subsequently revoked bail on the basis of open material concerning the claimant’s national-security risk, his incentive to abscond and the limitations of electronic monitoring. The central questions were whether SIAC had applied the stated precautionary approach and, if so, whether that approach was lawful.

1. The application for judicial review was dismissed. The court found that SIAC’s December 2009 decision was based on open material and circumstances which had not been considered in the same way when bail was revoked in March 2009. The decision was not influenced by closed material or by the precautionary approach.

2. The court rejected the submission that the open evidence could not justify revocation in December because it had not justified revocation in March. The earlier decision had focused on the consequences of the House of Lords’ judgment, the prospects of further domestic proceedings and the possibility of relief from Strasbourg. It had not addressed the underlying open evidence concerning the claimant’s terrorist connections and the risk of absconding.

3. The court declined to decide the legality of the precautionary approach. That issue did not arise once the factual premise of the challenge had failed. The approach was an elusive notion, and its legal merits would be better judged against concrete facts. Any observations on its legality would therefore be obiter.

4. More generally, judicial review of SIAC bail decisions must not become a surrogate appeal. In a sensitive area requiring fine judgments about national security, a challenge alleging irrationality in the Wednesbury sense will ordinarily require a sharp-edged error of law. Challenges to SIAC bail decisions will consequently be rare and exceptional.

• Special Immigration Appeals Commission: revoked the claimant’s bail on 7 December 2009, giving written reasons on 21 December 2009.
• High Court (Administrative Court): dismissed the judicial review application. The court held that SIAC had relied on open material and had not been influenced by closed material or the precautionary approach.