The Secretary of State for the Home Department v The Special Immigration Appeals Commission & Ors

On statutory judicial review by the Special Immigration Appeals Commission, closed disclosure must enable the Commission to test the rationality and legality of the decision under review. It is insufficient to disclose only the decision-maker’s report or summary. The Secretary of State must disclose the underlying material actually used by its author to establish the facts or reach the conclusions expressed, together with material falling within the ordinary duty of candour.

The obligation does not require an exhaustive trawl through everything the author could have accessed. The disclosure must be sufficient to justify the report’s factual and analytical basis and to permit an effective review, while respecting national-security and public-interest constraints.

The Secretary of State sought judicial review of two preliminary decisions of the Special Immigration Appeals Commission concerning disclosure of closed material to special advocates. The underlying proceedings concerned an exclusion direction and refusals of naturalisation, reviewed under sections 2C and 2D of the Special Immigration Appeals Commission Act 1997.

SIAC had directed disclosure of all relevant material bearing on the facts, including material available to the writer of the report or assessment. The Secretary of State argued that disclosure of the report, supplemented by the duty of candour, was sufficient, or that SIAC’s approach was excessively broad. The central issue was the proper scope of disclosure required for a fair and effective statutory judicial review conducted through a closed material procedure.

1. The challenge was allowed in part as to the scope of the disclosure principle. The court accepted that the issue was suitable for determination before the substantive SIAC proceedings because the preliminary ruling was intended to have wider application and there was no effective appeal on the disclosure issue.
2. Sections 2C(3) and 2D(3) of the Special Immigration Appeals Commission Act 1997 require SIAC to apply ordinary judicial-review principles. Rule 4(3) of the Special Immigration Appeals Commission (Procedure) Rules 2003 requires the Commission to satisfy itself that the material available enables it properly to determine the proceedings.
3. The closed procedure heightens the need for careful scrutiny because interested parties cannot give fully informed instructions on closed material. SIAC must consider whether other, potentially innocent, explanations may rebut the material or the inferences drawn from it. The court considered it unhelpful to describe this merely as scrutiny conducted with a particular degree of anxiety.
4. Disclosure cannot be limited to the report or summary placed before the decision-maker. Without at least the material relied on by the report or assessment writer, the rationality and basis of the recommendation cannot be tested. The Secretary of State must disclose the underlying material actually used to found or justify the facts and conclusions expressed in the report or assessment.
5. The obligation is distinct from the duty of candour. The latter requires disclosure of material which might undermine the evidence relied on or otherwise assist the interested parties. The required underlying material need not include everything the report writer could have accessed. In retrospectively reconsidered cases, material sufficient, in the writer’s view, to support the allegations and conclusions may be disclosed if it existed at the decision date. If the material is insufficient to support the report or conclusions, the review will fail.
6. The parties were directed to agree an appropriate declaration reflecting this narrower formulation of the disclosure obligation.

The judgment describes earlier decisions in the underlying statutory reviews, including decisions of SIAC and related High Court and Court of Appeal proceedings. Those same-litigation decisions are not separate authorities for citation treatment here.