W (Algeria) and BB (Algeria) v Secretary of State for the Home Department

The Special Immigration Appeals Commission may make an absolute and irrevocable order preventing the onward disclosure of a witness’s identity and evidence. Such an order may be made ex parte where it is necessary in the interests of justice.

The power must be used sparingly. The proposed evidence must appear capable of belief and decisive or highly material to safety on return. The witness must genuinely and reasonably fear reprisals if disclosure occurs. The imperative of determining a claim under article 3 of the European Convention on Human Rights on the fullest available evidence may outweigh the resulting restrictions on open justice, natural justice and the Secretary of State’s ability to investigate the evidence.

The Secretary of State decided under section 3(5)(a) of the Immigration Act 1971 to deport several Algerian nationals on national security grounds. The Special Immigration Appeals Commission found that they presented a national security risk and that their deportation would be lawful and compatible with the European Convention on Human Rights.

The appellants wished to rely on information from sources who feared reprisals if their identities or evidence were disclosed to the Algerian authorities. The sources required an absolute and irrevocable assurance against onward disclosure. The Court of Appeal dismissed the appellants’ appeals in [2010] EWCA Civ 898, holding that SIAC could not properly give such an assurance before the Secretary of State had seen the material.

The central issue was whether, and in what circumstances, SIAC could make an ex parte order permanently prohibiting onward disclosure while subsequently allowing the Secretary of State to contest the evidence at an inter partes hearing.

1. Appeals allowed unanimously, to the extent indicated. Lord Brown and Lord Dyson gave judgments. Lord Phillips, Lord Kerr and Lord Wilson agreed with both. SIAC had jurisdiction under the Special Immigration Appeals Commission (Procedure) Rules 2003 to make an absolute and irrevocable non-disclosure order. Such an order could sometimes properly be made ex parte.

2. Per Lord Dyson, an order should be made where SIAC is satisfied that it is necessary in the interests of justice and two conditions are met. First, the witness’s evidence must appear capable of belief and capable of being decisive or at least highly material to safety on return. Secondly, SIAC must have no reason to doubt that the witness genuinely and reasonably fears reprisals against the witness or someone close if the identity and evidence are disclosed to the authorities of the receiving state.

3. The order is a striking departure from open justice, procedural fairness and natural justice. It may impede the Secretary of State’s investigation and rebuttal of the evidence. Nevertheless, in an article 3 case the imperative of maximising SIAC’s ability to reach the correct decision on safety on return may outweigh those disadvantages. The possibility of diplomatic embarrassment if the Secretary of State cannot pass information to a foreign state carries relatively little weight, particularly because compliance with a final court order would answer a diplomatic complaint.

4. Per Lord Brown, the power must be exercised most sparingly and SIAC must guard against abuse. Before making an order, SIAC should require the fullest disclosure of the proposed evidence, the circumstances giving rise to the fear of reprisals, how the evidence came to the appellant’s lawyers, and the efforts made to obtain evidence through ordinary safeguards such as anonymity and a private hearing.

5. The substantive appeal remains inter partes. The Secretary of State may challenge the need for confidentiality, the credibility of the witness and the weight or admissibility of the evidence. If national security concerns emerge, she may ask SIAC to seek an adequate waiver. If an unreasonable refusal prevents such a waiver, SIAC may exclude the evidence or treat it with additional scepticism.

6. The same balance applies where return presents an article 2 risk. Where another Convention right is invoked, the balance will almost certainly favour refusing the order; Lord Dyson considered such an order difficult to envisage in an article 8 deportation appeal. SIAC was left to decide whether the individual appeals should be reopened and what orders should follow.

1. United Kingdom Supreme Court: Allowed the appeals unanimously to the extent indicated and left SIAC to determine whether the individual appeals should be reopened and what orders should be made.
2. Court of Appeal: In [2010] EWCA Civ 898, dismissed the appeals and held that SIAC could not properly give an absolute and irrevocable guarantee against onward disclosure before the Secretary of State had seen the material.
3. Special Immigration Appeals Commission: Found that the appellants presented a national security risk and that the deportation decisions were lawful and compatible with the European Convention on Human Rights.