Deportation, secrecy and knowing the case against you

1 July 2011 by Matthew Flinn

IR (Sri Lanka) & Ors v Secretary of State for the Home Department [2011] EWCA Civ 704 – Read Judgment

The Court of Appeal has rejected an argument that Article 8 of the European Convention of Rights (ECHR), the right to private and family life,  requires that those challenging deportation and exclusion decisions on grounds of national security in proceedings before the Special Immigration Appeals Commission (SIAC) have to be given sufficient disclosure of the case against them to enable them to effectively instruct the special advocate representing their interests.

In his book “The Rule of Law”, the late Lord Tom Bingham enumerated a number of sub-rules to give content to that cardinal, oft-cited but rather vague constitutional principle. Unsurprisingly, one such sub-rule was that adjudicative procedures provided by the state should be fair, an idea which found expression in documents as old Magna Carta. In turn, this entails that, as Lord Mustill stated in In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, “each party to a judicial process should have an opportunity to answer by evidence and argument any adverse material which the tribunal make take into account when forming its opinion”.

On its face, the advent of the special advocate is an affront to this requirement of justice, since when they are appointed in cases involving sensitive national security considerations, they are tasked with representing a client to whom evidence is normally not disclosed, and with whom they normally cannot communicate once they have seen the secret evidence. Indeed in December 2003, Amnesty International went so far as to label the use of special advocates a “perversion of justice”. Nevertheless, following their introduction in the Special Immigration Appeals Commission Act 1997 (which was the Government’s response to the judgment of the European Court of Human Rights (ECtHR) in Chahal v United Kingdom (1997) 23 EHRR 413), they have been used in variety of different types of case, ranging from control order proceedings to parole board hearings, to data protection proceedings and freedom of information claims.

Inevitably, the use of special advocates has raised human rights questions, and the increasingly common dilemma of balancing those rights against political and national security imperatives. The most obviously applicable rights are Article 6, which contains numerous guarantees attendant upon the basic right to a fair trial, and Article 5(4), which, in relation to detention, requires that a detained person is able to challenge their detention, and is afforded a “substantial measure of procedural justice” (per Chahal v United Kingdom) in doing so.

However, this case dealt with four appeals from SIAC, which upheld the decisions of the Secretary of State to deport and exclude the appellants (nationals of Sri Lanka, Pakistan and Libya) from the UK on national security grounds. This meant that Article 5(4) was not engaged because the decisions related to deportation rather than detention. Further, it was made clear by the ECtHR in Maaouia v France (2001) 33 EHRR 42 that decisions regarding the entry, stay and deportation of aliens did not concern civil rights and obligations or criminal charges within the meaning of Article 6(1) of the Convention. That is why in this case, the four appellants argued that the procedural protections which those articles afford could also be found in Article 8 (the right guaranteeing respect for the private and family life and correspondence), which they submitted did apply to their cases. The particular consequence of this, it was argued, was that they should have been given more information about the evidence being relied upon in the case against them.

More than any other article contained in the ECHR, the scope of Article 8 has had a metastatic tendency (a feature which periodically sees it the focus of political controversy). From straightforward cases where it has been relied upon to complain about prison officers interfering with prisoners’ mail, it has grown to cover broad and difficult concepts such as “physical integrity”, “psychological integrity” and perhaps most esoterically, “moral integrity”. Given its breadth and flexibility, it is not particularly surprising that, as Maurice Kay LJ said in this case, “where Article 6 is not engaged, Article 8 may impose procedural obligations”. This had been made clear in Strasbourg decisions such as that in McMichael v United Kingdom (1995) 20 EHRR 205, in which the ECtHR said:

Whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8.

And even in cases where national security was in issue, the ECtHR said in Al-Nashif v Bulgaria (2003) 36 EHRR 37 that:

…the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights [such as those contained in Article 8] must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information.

Using this as a foundation, the appellants in this case argued that in light of recent developments in the law relating to special advocates in the sphere of control orders, the situation in relation to the deportation and exclusion decisions of SIAC also had to be revisited. Of particular relevance was the ECtHR decision in A v United Kingdom (2009) 49 EHRR 29. As Lord Philips pointed out in his judgment in SSHD v AF (No. 3) [2010] 2 AC 269, the ECtHR in that case had made it clear that in control order proceedings non-disclosure could not go so far as to deny a party knowledge of the essence of the case against him. He had to be given sufficient information so as to be able to give effective instructions to the special advocate. As Lord Hope said in that case:

This is the bottom line, or the core irreducible minimum…that cannot be shifted.

However, as Maurice Kay LJ pointed out in the present case, those were cases where Article 6 and Article 5(4) rights were engaged due to the control order issue. He said there was no basis in those cases for the establishment of a “universal principle” which could be relied upon to extend Article 8 to afford similar guarantees to the present cases. Citing the well-known “no more, but certainly no less” dictum of Lord Bingham in R (Ullah) v Special Adjudicator [2004] 2 AC 323, he said:

So far as this Court is concerned, that would involve marching ahead of what Strasbourg jurisprudence has established.

This meant that the only question was whether or not the SIAC procedure in the cases being considered by the court – its use of special advocates and the restrictions imposed in terms of communication and revealing material to the person facing deportation – was compatible with the basic requirements set out in Al-Nashif. The threshold set out in that case was not particularly stringent as it only required “some form of adversarial proceedings before an independent body competent to review the reasons for the decision and the relevant evidence” and allowed for “appropriate procedural limitations on the use of classified information”.

This question was considered inRB (Algeria) v SSHD [2009] UKHL 10. In that case the House of Lords gave the SIAC procedure, in the words of Maurice Kay LJ, a “clear bill of health”. He went on to explain:

The need for “some form of adversarial proceedings” (Al-Nashif, paragraph 133) is satisfied by the proceedings in SIAC. To the extent (and it is often, as in some of these appeals, a considerable extent) that the proceedings are closed, the use of special advocates from the independent Bar reduces the risk of unfairness. No one suggests that the procedure is perfect. However, it is consonant with Strasbourg jurisprudence, from Chahal (where it was anticipated) to the more recent cases which, in relation to deportation or exclusion on national security grounds, countenance “appropriate procedural limitations on the use of classified information” (Al-Nashif, paragraph 133).

Organisations such as Justice might well take issue with the assertion contained in that reasoning that “the use of special advocates from the independent Bar reduces the risk of unfairness”. In a substantial report released in June 2009 it set out at length the limitations upon special advocates and the impact this had on their effectiveness in securing fairness.

It is also notable that the UK courts have not always been so circumspect in terms of keeping pace with, but going no further than Strasbourg. In the case of In re G (Adoption: Unmarried Couple) [2008] UKHL 38, the House of Lords considered a Northern Irish law which required that any couple seeking to adopt had to be married. Noting that ECHR rights had been incorporated into domestic law, the House of Lords decided that the law breached Articles 8 and 14 of the Convention, even though they took the view that the matter might well be held by Strasbourg to be within the margin of appreciation of member States. On this basis it was arguably open to the Court of Appeal to extend the requirements of Article 8.

However, the present case did not involve a situation where a particular issue had been or was likely to be expressly placed within the margin of appreciation of member states – a doctrine which by definition places the responsibility for deciding particular matters with national authorities. Rather, it was a simply case in which the requirements of Article 8 in the context at issue had been declared by Strasbourg (in Al-Nashif), and to go further could, in the eyes of the Court of Appeal, lead to inconsistent interpretations of an international instrument which Lord Bingham had cautioned against in Ullah.

And so, for now, the scope of Article 8 has been confined in this particular area of the law, but given the trends evident in its history of development, one might not be willing to bet on that remaining the case indefinitely.

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