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

A decision to deport a foreign national, and the associated decisions to detain that person or grant conditional bail pending deportation, do not determine a civil right for the purposes of article 6(1) of the Convention. They are exercises of public-law powers directed to immigration control, even though they may affect private and family life.

Article 8 requires independent scrutiny and an effective opportunity to challenge a national-security case. It does not automatically import the article 5(4) or article 6(1) requirement to disclose the gist where the interference falls short of deprivation of liberty. The necessary safeguards depend on the extent of the interference and the national-security interests involved.

BB, an Algerian national facing deportation on national-security grounds, had been released by the Special Immigration Appeals Commission (SIAC) on conditional bail. His bail conditions included a curfew imposed by reference to closed national-security material.

SIAC held that the conditions did not deprive him of liberty. It therefore rejected reliance on article 5(4), and also held that article 6(1) did not apply to the bail proceedings. The Divisional Court dismissed BB’s judicial-review challenge.

On appeal, BB no longer challenged the article 5(4) conclusion. He contended that articles 6(1) and 8 entitled him to the gist of the national-security case supporting the bail conditions. The central issue was whether either article imposed that disclosure requirement.

1. Appeal dismissed. The court unanimously upheld the Divisional Court’s dismissal of the judicial-review claim.

2. Article 6(1) did not apply. A deportation decision does not determine a foreign national’s civil rights. Detention pending deportation is a discretionary public-law power exercised to facilitate deportation under the Immigration Act 1971. Conditional bail is an alternative to that detention and is likewise ancillary to the deportation process. The effect on private or family life is incidental; it does not convert the exercise of immigration-control powers into a determination of civil rights.

3. In any event, the bail proceedings were interlocutory. The exceptional rule by which article 6 may apply to an interim measure could not assist BB because bail conditions could not determine, or materially affect, whether he should be deported.

4. Article 8 did apply because the conditions interfered with BB’s private and family life. But its procedural protection in a national-security deportation case required independent scrutiny, adversarial safeguards adapted to classified material, and an effective ability to challenge the executive assertion of national security. It did not require the full article 5(4) or article 6 gist-disclosure standard where there was no deprivation of liberty.

5. The court was bound by IR (Sri Lanka) v Home Secretary [2011] EWCA Civ 704. Liu v Russia (No 2) did not establish a new Strasbourg rule requiring gist disclosure under article 8. Whether further safeguards are required depends on the extent of the article 8 interference and the nature of the national-security interests at stake. SIAC’s procedure, including special advocates, satisfied the applicable standard.

• Court of Appeal (Civil Division): Dismissed BB’s appeal and affirmed the dismissal of his judicial-review claim: [2012] EWCA Civ 1499.
• Divisional Court: Sir Anthony May and Maddison J dismissed the challenge to SIAC’s conclusion that articles 5(4) and 6(1) did not require gist disclosure in the bail proceedings.
• Special Immigration Appeals Commission: On 27 May 2011 SIAC held that the bail conditions did not amount to deprivation of liberty, that article 5(4) was inapplicable, and that article 6(1) did not govern the bail application.