XX v Secretary of State for the Home Department

Evidence concerning conditions at an unlawful or secret detention facility is not automatically inadmissible. The exceptional exclusion of torture evidence does not extend to evidence about detention merely because its acquisition may involve unlawful official conduct. The court must ask whether admitting the evidence would compromise the integrity of the judicial process.

On a point-of-law appeal from SIAC, rational risk findings cannot be displaced by disagreement with the tribunal’s assessment. Later evidence does not establish an error of law unless it shows an unfair mistake as to an existing, objectively verifiable fact. New developments should ordinarily be advanced in fresh-claim representations.

XX, an Ethiopian national with indefinite leave to remain in the United Kingdom, appealed against SIAC’s dismissal of his challenge to a decision to deport him to Ethiopia on national-security grounds.

SIAC found that he had associated with persons involved in terrorism and remained a threat to national security. It also found no real risk that he would be ill-treated, prosecuted, or subjected to a flagrantly unfair trial on return. SIAC considered that assurances in a Memorandum of Understanding between the United Kingdom and Ethiopia could be relied upon.

The appeal raised the admissibility of evidence concerning secret detention, the rationality of SIAC’s assessment of the risk of prosecution, the admissibility of later evidence, and the compatibility of removal with articles 3, 5 and 6 of the European Convention on Human Rights.

1. Appeal dismissed unanimously. Richards LJ, with whom Davis LJ and the Master of the Rolls agreed, held that none of the open, private, or closed grounds established an error of law by SIAC.

2. SIAC was entitled to consider evidence about conditions and treatment at unofficial Ethiopian detention facilities. Even assuming that secret detention was prohibited by a peremptory norm of international law and that United Kingdom officials had attended such a facility, the proposed exclusion did not concern evidence obtained as a result of detention, such as a confession. It concerned evidence about detention. Its admission would not compromise the integrity of the judicial process or constitute an abuse of process.

3. The exceptional rule excluding torture evidence, reflected in A (No 2), did not govern this evidence. There is no general rule excluding unlawfully obtained evidence. A rule excluding only evidence adverse to the detainee, while permitting the detainee’s own account, would be profoundly unsatisfactory.

4. SIAC’s conclusion that there was no real risk of prosecution was not perverse. It was not required to mention every item of evidence, and the Court of Appeal would not infer from an omission that SIAC had failed to consider it. The expert evidence, read as a whole, entitled SIAC to find that the Ethiopian authorities lacked evidence linking XX’s training or associations to hostile activity against Ethiopia.

5. Later material from proceedings concerning J1 could not show that SIAC had made an error of law. It did not establish an unfair mistake concerning an existing, objectively verifiable fact. Such later developments could instead be raised with the Secretary of State as fresh-claim representations under the Immigration Rules.

6. The Court expressed, but did not decide, reservations about SIAC’s alternative conclusions on article 6 and the verification of assurances under the Memorandum of Understanding. A flagrant denial of justice is a stringent standard, requiring destruction of the essence of the fair-trial right. The Court also noted unease where monitoring provided only a partial safeguard. Those issues did not arise because SIAC’s primary risk findings were upheld.

• Court of Appeal (Civil Division): dismissed XX’s appeal in [2012] EWCA Civ 742 .
• Special Immigration Appeals Commission: dismissed XX’s appeal against the Secretary of State’s deportation decision on 10 September 2010.