News

Court of Appeal decision on SIAC procedural fairness
22 June 2011

Robin Tam QC appeared in the Court of Appeal with Robert Palmer and Steven Gray in IR, GT, AN and AK v Home Secretary [2011] EWCA Civ 704 when successfully resisting appeals by four individuals who had previously appealed unsuccessfully to the Special Immigration Appeals Commission.

Two of the appellants - a Sri Lankan and a Libyan - were excluded from the United Kingdom on national security grounds while they were overseas. The other two - both Pakistani - had successfully appealed against their deportation because of issues relating to their safety on return which trumped the national security basis for deporting them (see Operation Pathway website news item for 19 May 2010). However, the Home Secretary had also refused them extensions of stay in the UK, and they had lost their appeals against these refusals because the national security case against them was made out.

The principal ground considered by the Court of Appeal was an attack on SIAC's "closed evidence" procedure in relation to national security evidence, on the basis that it does not satisfy the procedural requirements of Article 8 of the European Convention on Human Rights, which requires SIAC to consider whether the proposed interference with the individual's right to private and family life is disproportionate to the strength of the national security case. The Court of Appeal rejected this, because SIAC satisfies the requirement to provide independent scrutiny of the claim within some form of adversarial proceedings, and in the closed proceedings the special advocates reduce the risk of unfairness. An "effective remedy" for Article 8 requires only a remedy that is as effective as could be, having regard to the restrictions inherent where secret evidence is used.

The Court of Appeal also dismissed other case-specific grounds advanced by the Pathway appellants.