Challenge Mechanisms
Chapter 8
Challenge Mechanisms
Introduction
This chapter considers the nature of the challenge mechanisms open to those subjected to the executive measures deployed after 9/11. It deals with appeals to the Special Immigration Appeals Commission (SIAC) as regards immigration, asylum and citizenship matters, and in respect of ATCSA detentions. It analyses the comparable role of the High Court in respect of the Home Secretary’s application for a control order, the controlee’s responses to that and the controlee seeking the revocation or modification of his or her order. It delineates the various jurisdictions and powers of SIAC and the High Court and surveys the processes and rules by which the schemes seek to reconcile competing interests of protection of security material and sources, on the one hand, and due process and rights to a fair hearing, on the other. Those processes involve dealing with material in ‘open’ and ‘closed’ sessions. The latter exclude from participation the individual and their legal team. In ‘closed’ sessions, SIAC or the High Court examine the material relied on by the Home Secretary. They are aided to do so by a lawyer appointed as a Special Advocate to promote the interests of the individual without being subject to the latter’s instructions or a part of their legal team. The role of the Special Advocate and criticism of it are considered in some depth. Those processes are controversial. It is arguable that they are not compatible with the ‘fair hearing’ requirements of the ECHR. The material in this chapter thus lays a base for consideration in chapter 9 of the litigation that issue has generated. One aspect of that question concerns the sufficiency of the level of judicial scrutiny afforded. Accordingly, the nature and terms of each of the jurisdictions must separately be considered.
Powers and Jurisdictions: SIAC
In Chahal neither the adviser system of challenge nor judicial review in the High Court in respect of national security deportation decisions satisfied the fair hearing requirements of Art. 5(4) ECHR. Nor did either provide the effective remedy required by Art. 13 ECHR. The European Court of Human Rights there drew attention to one version of a Canadian mechanism for reconciling due process and security interests. Accordingly, the Government proposed and Parliament approved the creation through the Special Immigration Appeals Commission Act 1997 (SIACA) of a modified version of that system to govern challenges to national security decisions in the immigration sphere. The Government was confident, and not unreasonably so, given the Court’s apparent ‘steer’, that the scheme would satisfy the ‘fair hearing’ and the ‘effective remedy’ requirements of the ECHR. As will be seen in chapter 9, the European Court of Human Rights, while continuing to draw attention to a SIAC type scheme as a possible reconciler of due process and security interests, has declined to confirm in national security cases in other contexts that SIAC is compatible with Articles 5(4), 6 and 13 ECHR. Since enactment of SIACA, moreover, Government counter-terrorism strategy since 9/11 has been to reduce the scope of asylum appeals and, as regards national security deportation, to limit the range of matters appealable while in the country. SIAC, created as an independent judicial tribunal, has, since 2001, been a superior court of record equivalent to the High Court.1 It was set up to hear appeals against immigration and asylum decisions where, because of national security or other public interest considerations, some of the evidence on which the decision is based cannot be disclosed to the appellant. It is presided over by a High Court judge. Its decisions are not amenable to judicial review and can only be challenged by way of appeal on a point of law to the Court of Appeal as provided in SIACA2 or ATCSA.3 Its members are appointed by the Lord Chancellor and have all been security-vetted.4 Although there have been changes to the precise terms of its composition reflective of a bewildering range of change in the immigration and asylum appeals area, essentially it hears proceedings as a three-member panel, chaired by a member who holds or has held high judicial office (usually a High Court judge). Specialist expertise in immigration, intelligence and security issues is provided by the other two members. One must be or have been a legally qualified member of the Asylum and Immigration Tribunal (AIT).5 The other will be a lay member. When the House of Commons Constitutional Affairs Committee (CAC) reported in 2005 on SIAC and its roles, Ouseley J was the chair of SIAC. It then had 22 judicial members, 13 legal members and 13 lay members.6
SIAC operates in controversial areas and risks attracting criticism whatever it does in the exercise of its independent decision-making functions. As will be seen in chapter 9, sometimes it has upheld the decisions of the Home Secretary. At other times, it has decided matters against him or her and has roundly been criticized by the Home Secretary. Lawyers for the individual, however, have sometimes thought it too deferential to the Home Secretary’s views on security issues. Its expert status has attracted a degree of respect from higher courts.
SIAC: the Immigration and Asylum Jurisdiction
Broadly speaking, there is a right of appeal to SIAC against an immigration or asylum decision where the Home Secretary has certified under section 97 of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002) that the decision has been taken in the interests of national security; in the interests of the relationship between the United Kingdom and another country; or otherwise in the public interest. It thus covers both refusal of entry to the United Kingdom and deportation from it on such grounds, as well as refusal to revoke a deportation order made on such grounds.7 Appeals against banning from, or refusal of, entry are perforce are conducted with the appellant out of the country. Until July 2006, appeals in respect of deportation took place with the appellant in the country, either in detention or on bail. With respect to an appeal lodged after that, however, the normal course will be for the appeal to be brought after removal from outside the country. Where the appellant has made a human rights claim, however, the appeal can be brought ‘in country’, precluding removal until resolved, unless the Home Secretary certifies that removal would not breach the ECHR. An ‘in country’ appeal lies to SIAC in respect of such a certification. If that appeal was unsuccessful, the appeal against deportation would then be conducted after removal.8
Essentially, SIAC must allow an appeal in so far as it thinks that the decision appealed against does not accord with law (including any immigration rules), or that a discretion exercised in making the decision should have been exercised differently.9 The fullness of those terms has, however, to be read in the light of the dictates of the House of Lords in Rehman which arguably have defeated Parliament’s intention and reduced SIAC’s role more to one of judicial review.10 In addition SIAC also has power to admit to bail someone detained as a result of an immigration or asylum decision.11
In asylum cases, the range of issues to be considered by SIAC has been narrowed. Moreover, statute stipulates definitions of relevant key terms in the Refugee Convention. As regards refusal of asylum, ATCSA, section 33 – now repealed and replaced in terms by section 55 of the Immigration, Asylum and Nationality Act 2006 (IANA 2006) – essentially prevented the proper substantive determination of an asylum appeal if it was deemed that the exclusion clauses apply or if the person concerned was considered to be a danger to national security in accordance with Art. 33(2) of the Refugee Convention. Further restriction was effected by section 72 of NIAA 2002, subsection (2) of which stipulates that someone shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is (a) convicted in the United Kingdom of an offence, and (b) sentenced to a period of imprisonment of at least two years. Subsection (4) is more far-reaching in not requiring such a sentence. It states that a person will also ‘be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if (a) he is convicted of an offence specified by order of the Secretary of State’. The Home has specified a raft of specific offences under the anti-terrorist legislation. These provisions are open to the criticism that they may deprive someone of refugee protection for relatively minor offences, such as the destruction of identity documents without reasonable excuse (an offence punishable with up to two years’ imprisonment) and criminal damage and minor theft, which are specified offences. In addition, section 54 of IANA 2006 dictates an interpretation of Art. 1F (c) of the Refugee Convention, by specifying that ‘acts contrary to the purposes and principles of the United Nations’ which will result in exclusion from asylum include acts of committing, preparing or instigating terrorism and acts of encouraging or inducing others to commit, prepare or instigate terrorism.
Evidence from the Department of Constitutional Affairs to the CAC indicated 10 deportation appeals and one exclusion appeal in the period 1998–2005. One appeal remained pending. The appeal against exclusion saw the Home Secretary lift the exclusion. SIAC upheld a decision not to revoke a deportation order. Two appellants withdrew their appeals. Another was abandoned. Two decisions to deport were withdrawn. Another three were upheld by SIAC on the deportation issue but in two of these SIAC held that removal was precluded by Art. 3 ECHR, and in the other (Rehman), the individual was not removed because by the end of the appeal process (which continued all the way to the House of Lords) he was no longer regarded as a national security threat.12
SIAC: the Citizenship and ‘Right of Abode’ Jurisdiction
The NIAA 2002 enabled the Home Secretary to deprive a British citizen with dual nationality of their British citizenship, however acquired, where he or she was satisfied that the person had done something prejudicial to the vital interests of the United Kingdom. That deprivation power, wide in itself, was replaced from July 2006 by a broader power; deprivation of a dual national’s citizenship on the grounds that the Home Secretary is satisfied that such deprivation is conducive to the public good, a concept covering a much broader range of behaviour than before.13 Where deprivation is on grounds of national security (terrorism or otherwise), appeal lies to SIAC.14 Similarly, the right of abode in the United Kingdom possessed by some (mainly white) Commonwealth citizens prevents their deportation or (while in operation) ATCSA detention. With effect from July 2006, the Home Secretary can remove that right of abode where he or she considers it conducive to the public good.15 Where the basis for this is national security (terrorism or otherwise), appeal lies to SIAC.16
Whether the deprivation is of citizenship or the right of abode, SIAC must allow an appeal in so far as it thinks that the decision appealed against does not accord with law or a discretion exercised in making the decision should have been exercised differently.17
There appears only to have been one appeal against deprivation of citizenship – the case of the radical cleric, Abu Hamza. He was detained initially in respect of extradition proceedings by the United States and then in respect of criminal charges (incitement to murder and incitement to racial hatred) in respect of which he was convicted and imprisoned. The ‘citizenship’ appeal was stayed at his request.18
SIAC: the ATCSA Detention Jurisdiction
ATCSA empowered the Home Secretary to detain someone, without the right of abode in the United Kingdom, whom he or she had certified as an international terrorist suspect who posed a threat to national security.19 That person had a right to appeal to SIAC against certification. SIAC had to cancel the certificate if, on the basis of all the material available as at the date of the hearing, it considered either (a) that there were not reasonable grounds for suspecting the person to be a terrorist or for believing them to threaten national security, or (b) that for some other reason the certificate should not have been issued. Cancellation resulted in the certificate being treated as never having been made.20 In addition, whether or not the person certificated appealed, SIAC had regularly to review the certificate. On a review the Commission had to cancel the certificate if it considered, on the basis of the material as at the time of review, that there were no reasonable grounds for the requisite belief or suspicion. Otherwise it could not make any order except as to leave to appeal. A certificate ceased to have effect at the end of the day on which SIAC’s order on review cancelling it was made.21 In addition, SIAC also had power to admit a detainee to bail.22
Whether on appeal or on periodic review, SIAC considered the cases of all 17 persons certificated under ATCSA. Two were admitted to bail. Only one certificate was cancelled as a result of an appeal. On the other appeals and reviews, SIAC upheld certification. Concerns were expressed both about the level of the scrutiny applied by SIAC and the matter of deference on security issues to the Home Secretary. Some aspects of this are noted further below when considering ‘closed’ sessions and the role of the Special Advocate. The litigation which those concerns produced is examined in chapter 9.
Powers and Jurisdictions: the High Court and Control Orders under the PTA 2005
The PTA 2005 empowers the making of two types of control order: non-derogating control orders and derogating control orders. Just as the degree of restrictions that may be imposed varies by type of order, so does the applicable decision-maker, the process for making them, and the terms governing judicial control of their imposition. The whole process has become much more ‘judicialized’, with the Home Secretary who wants a control order against an individual, in effect largely having to seek the issue of one from the High Court rather than making one of his or her own volition and having to defend it in court later.
A ‘non–derogating’ control order can be made by the Home Secretary (subject to court challenge after the event) only in two circumstances: where in his/her opinion the urgency of the situation precludes his/her seeking court permission to issue the order; or where the order was made before 14 March 2005 against an individual who, at the time it was made, was an individual in respect of whom a certificate under section 21(1) of ATCSA was in force (the existing ‘Belmarsh’ detainees).23 Otherwise, having decided that there are grounds to make such an order against that individual, he/she must apply to the High Court for permission to make the order.
The test for making a ‘non-derogating’ control order is whether there are reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity and the decision-maker (Home Secretary or the court, as the case may be) further considers it necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.24 There are here two stages in court proceedings.
The ‘first stage’ ‘permission’ hearing will generally be ex parte (with no representations from the suspect who will generally not even know of the application). The court may only refuse permission to issue an order where it considers that the Home Secretary’s decision to go for one on the basis that the test was met was ‘obviously flawed’ in terms of the principles applicable on judicial review. If permission is granted, the order is made and executed. The court must arrange for a full hearing on the order – a process envisaged as beginning within seven days of the initial approval of the order – in which the individual and their lawyer, subject to the security considerations mentioned above, can participate and challenge the order. At that hearing, the court must confirm the order unless it is satisfied on the material available to it as at the date of this ‘second stage’ hearing that the decision to make it at all and/or the restrictions to impose is flawed in the light of the principles of judicial review, in which case it can quash it or one or more of the obligations imposed by it, or give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.25
A ‘derogating control’ order (one interfering because of the degree of its restrictions with ‘liberty and security of person’ protected by Art. 5 ECHR, for example, house arrest) will require an Art. 15 designated derogation order approved by both Houses of Parliament.26 Judicial control is tighter here. The Home Secretary must apply to the High Court for a ‘derogating’ control order against that person.27 The Act provides that the putative subject can be arrested and detained by the police where it is thought necessary to ensure that they are available to be given notice of the order if it is made. The person can be so held for up to 48 hours, and the usual rights granted to those arrested under the TA 2000 of access to a lawyer and to have someone informed of the detention apply here without ability to postpone their exercise.28 Detention thereafter is a matter for the High Court.29 Again, the court process has two stages. At the first stage, the court must hold an immediate preliminary hearing on the application (which may be held without the suspect being notified, present or allowed to make representations) to decide whether to make such an order and, if so, to direct the holding of a full hearing (the second stage) to determine whether to confirm the order (with or without modifications). The test to be applied by the High Court varies according to whether it is considering the matter at the preliminary hearing of the Home Secretary’s application for such an order, or considering at the later full hearing whether to confirm the order issued at that earlier stage. The standard for confirmation is more stringent than for the initial issuing of the order.
At the ‘first stage’ or preliminary hearing, the court in essence
… considers whether there is a prima facie case for the making of an order … It falls far short of a requirement that the court be satisfied itself of the necessity for an individual to be deprived of their liberty.30
To delineate more fully the court’s powers at this stage, the court may make a control order against the individual in question if it appears to the court (a) that there is material which (if not disproved) is capable of being relied on by the court as establishing that the individual is or has been involved in terrorism-related activity (the prima facie case aspect); (b) that there are reasonable grounds for believing that the imposition of obligations on that individual is necessary for purposes connected with protecting members of the public from a risk of terrorism; (c) that the risk arises out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Art. 5 of the ECHR; and (d) that the obligations are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order. The obligations that may be imposed by a derogating control order at this stage are those which the court has reasonable grounds for considering are necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity.31 At the full hearing, higher standards are rightly applicable. The court may confirm the control order (with or without modifications) only if (a) it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity; (b) it considers that the imposition of obligations on the controlled person is necessary for purposes connected with protecting members of the public from a risk of terrorism; (c) it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Art. 5 of the ECHR; and (d) the obligations to be imposed by the order, or (as the case may be) by the order as modified, are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order. Otherwise the court must revoke the order made at the preliminary hearing.32 A ‘derogating’ control order lasts for up to six months, unless revoked earlier, but can be renewed for further periods of up to six months.33
Processes and Procedures
These are essentially the same for each court (SIAC/High Court), despite being founded on different legal bases.34 Broadly speaking, the processes and procedures are designed to mirror those applicable, respectively, to ordinary immigration and asylum appeals (SIAC compared to AIT/IAT) and other civil proceedings (High Court). The crucial difference between these and ordinary processes, however, lies in the making of special provisions to enable the Home Secretary to rely on material without disclosing it to the appellant or their representative, where to do so would be contrary to the public interest. Both courts are duty bound to secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest. But subject to that, they must be satisfied that the available material enables proper determination of the proceedings.35 Unlike the position in public interest immunity proceedings where one party (often the Crown or at its behest) seeks to withhold material from another, neither SIAC nor the High Court has power to decide that the harm disclosure might cause to those interests is outweighed by the benefit to the public interest in the fair administration of justice.36 They are also required to exclude the appellant and their representative from a hearing or part of a hearing if they consider it necessary in order to ensure that information is not disclosed contrary to the public interest.37 The relevant law officer (in England and Wales the Attorney General) may appoint a special advocate to represent the interests of appellants in any proceedings from which they and their legal representative are excluded.38 Although this is a discretion rather than a duty to appoint a special advocate, one will invariably be appointed, since the Home Secretary cannot rely on material which has not been disclosed to the appellant or their representative unless a special advocate has been appointed.
Since SIAC was the initial model, a delineation of its processes with respect to appeals is set out first, since this conveys most readily the nature of the process. Some variations flowing from the ‘reverse’ nature of the PTA 2005 process (the Home Secretary as applicant for permission to make a non-derogating control order or for a derogating control order itself) will then be noted.