BB, R (on the application of) v Special Immigration Appeals Commission

Where bail proceedings concern detention or restrictions on liberty under the Special Immigration Appeals Commission Act 1997, the procedural standard required by article 5(4) ECHR applies equally before and after SIAC has determined the substantive appeal. SIAC cannot rely, without further disclosure, on a closed judgment or findings based on closed material where the appellant has not received sufficient information about the allegations to give effective instructions. Practical difficulty, the finality of the earlier judgment, or the possibility that disclosure may lead to renewed argument does not justify lowering that minimum standard. The substantive judgment remains final and is not reopened; any findings made in later bail proceedings operate for those proceedings alone.

BB, an Algerian national subject to a national-security deportation decision, applied for judicial review of SIAC’s decision maintaining stringent bail conditions, including an 18-hour curfew. SIAC had relied, or considered itself entitled to rely, on findings made in the substantive deportation appeal, including findings contained in or based on closed material.

The claim followed the Divisional Court’s decision in R (Cart) v Upper Tribunal, which held that article 5(4) requires a minimum standard of disclosure in SIAC bail proceedings. The central issue was whether that standard changed after SIAC had already found, in the substantive appeal, that BB posed a risk to national security.

1. Application allowed. SIAC’s approach in maintaining the bail decision was erroneous. A further bail application could be made and would have to be considered consistently with the judgment.
2. The procedural standard under article 5(4) ECHR identified in A v United Kingdom and applied to SIAC bail proceedings in R (Cart) v Upper Tribunal applies both before and after judgment in the substantive deportation appeal. The post-judgment context does not constitute a sufficiently different category to justify a fundamentally different approach.
3. The minimum requirement is that the appellant receive sufficient information about the allegations against him to enable him to give effective instructions. SIAC cannot rely in bail proceedings on a closed judgment, or on findings based on closed material, without ensuring that this standard has been met. The fact that the earlier proceedings were lawful and final does not remove the procedural requirements applicable to the later liberty proceedings.
4. Practical difficulties in identifying the relevant material, assessing earlier disclosure, or avoiding renewed argument do not justify reducing the article 5(4) standard. The Secretary of State must present a reasoned case identifying the material relied on, and SIAC must determine what disclosure of the allegations or their gist is necessary.
5. Applying the standard may require some reconsideration of matters previously determined, but it does not reopen or alter the substantive judgment. Findings made in the bail proceedings are made for those proceedings alone. The court declined to rule on the legality of SIAC’s proposed precautionary approach because that issue was unnecessary for decision.

The claim was stayed pending the judgment in R (Cart) v Upper Tribunal. Permission to apply for judicial review was granted at the outset of the hearing, after which the matter proceeded as the substantive application.