O3, R (on the application of) v Secretary of State for the Home Department

A Secretary of State is not required to retain Special Advocates after national-security proceedings have ended. Effective human-rights protection may instead be secured by a continuing responsibility to alert the affected person’s lawyers to any possibility of a fresh claim arising from closed material and changed circumstances.

Once alerted, the Secretary of State must consider relevant closed material if fresh claim representations are made. If the claim is rejected, judicial review, supported where necessary by a closed material procedure and Special Advocate, provides an effective remedy. The continuing responsibility is necessary but sufficient; the procedural safeguards available during SIAC proceedings need not be replicated after proceedings end.

The claimant faced deportation to Country X on national-security grounds. SIAC had found deportation legally justified and compatible with Article 3 ECHR, giving an open judgment with confidential and closed material. Permission to appeal was refused by the Court of Appeal, after which the Special Advocates’ role ended.

Changed circumstances later led Special Advocates to make closed representations supporting a putative fresh claim. The Secretary of State rejected that claim. In these judicial review proceedings, the only remaining issue was whether effective judicial protection required Special Advocates to continue acting until removal or the grant of leave, despite no extant proceedings.

1. Claim refused. The court held that the Secretary of State was not required to retain Special Advocates while no legal proceedings were on foot. The contrary argument was not arguable with a realistic prospect of success.
2. The Court of Appeal’s reasoning in XX (Ethiopia) v Secretary of State for the Home Department [2012] EWCA Civ 742 supplied the answer. The Secretary of State has a continuing responsibility to alert the affected person’s lawyers to the possibility of a fresh claim where closed material exists which could found one.
3. Following such an alert, if fresh claim representations are made, the Secretary of State must consider both those representations and relevant closed material which has become available since the original proceedings. A refusal can then be challenged by judicial review, with a closed material procedure and Special Advocate where necessary.
4. The continuing responsibility is necessary but sufficient to secure effective judicial protection. It does not require the replication, outside SIAC proceedings, of the proactive enquiry and review function identified in rule 10A of the SIAC Procedure Rules 2003. Nor does the inability of Special Advocates to prepare closed representations before proceedings are commenced create a protection gap.
5. The Secretary of State expressly recognised the continuing responsibility. Her earlier alert to the Special Advocate Support Office provided concrete reassurance that the responsibility would be discharged scrupulously. Permission for judicial review was therefore refused.

• SIAC: Determined on 2 December 2020 that the proposed deportation was legally justified on national-security grounds and compatible with Article 3 ECHR.
• Court of Appeal: Refused permission to appeal on a point of law on 6 September 2021.
• High Court (Administrative Court): Refused permission for judicial review of the alleged need for continuing Special Advocate involvement after proceedings had ended.