APPENDIX 16
The Special Immigration Appeals Commission
(SIAC)
Background
— The Special Immigration Appeals Commission
(SIAC) was set up by the Special Immigration Appeals Commission
Act 1997. This Act followed the ruling against the British Government
by the European Court of Human Rights in Chahal (1996). The Court
ruled, among other things, that the arrangements then in place
in the UK for removing people whose presence was deemed not to
be conducive to the public good for reasons of national security,
relations with another country or for any other political reason,
contravened the European Convention on Human Rights.
— The previous system was known as
"the three wise men." This was a non-judicial body which
acted as a review of the Home Secretary's decisions to remove
people on conducive grounds. There was no right for the person
who was to be removed to appear before this body to argue their
case and the court held that this was unfair.
Organisation and working of SIAC
— The Commission consists of three
members, two of whom have to be members of the judiciary and the
third a lay member with a good knowledge of security work. The
Commission is analogous to a court and its decisions carry legal
weight. It is completely independent of Government.
— The Commission acts as an appeal
body for those who are subject to deportation and/or refusals
of leave to remain on conducive grounds. The way it is set up
allows for evidence from the intelligence services to be heard
in court without revealing sources. This is done using the "Special
Advocate" system.
— The Commission also hears bail applications
for those detained where the Home Secretary has certified that
their detention (pending removal) is necessary on national security
grounds.
— The Special Advocate represents the
interests of the appellant whenever secret (closed) material is
brought before the court and, as a consequence, the appellant
and his counsel/representatives are excluded from the court.
— The Special Advocate is appointed
from a list of DV cleared counsel by the Attorney General's Office.
He is permitted to see all the closed evidence, but once he has
seen this material he is not allowed to have any contact with
the appellant.
— The Commission's judgment must be
published, although nothing which identifies intelligence information
can be revealed in the judgment.
— Appeals may be made on points of
law to the Court of Appeal.
New Procedures
— Under the proposed new legislation,
SIAC would essentially do the same job, with the following additional
tasks/changes:
— SIAC would no longer be able to consider
substantively asylum applications from known suspected terrorists.
Once SIAC had considered the question of national security, and
it was established that the appellant was a threat to national
security and excluded from the scope of the 1951 Refugee Convention,
then SIAC would go on to consider the question of removal. If
SIAC considered that the person was not a threat to national security,
then the case would be returned to the Home Office to consider
further action.
— The new measures would preclude Judicial
Review of SIAC decisions on points of fact (there is already a
route to the Court of Appeal on points of law) and for administrative
actions relating to a SIAC decision.
— SIAC would also function as the review
body for those who were being detained indefinitely under proposed
new powers because their removal was currently not possible. This
would be likely to be similar to a bail hearing, although it would
be slightly more detailed and would cover slightly different ground.
SIAC would assess whether or not the detainee was still a threat
to national security.
Recent Cases
— There have only been three substantive
appeals heard by SIAC so far. The first, Shafiq ur Rehman, was
allowed by SIAC. We appealed on the definition of national security
(SIAC had applied a very narrow definition) and the standard of
proof which should be applied to establish any threat. The Court
of Appeal found in our favour, but allowed an appeal to the House
of Lords on both points. The Lords have recently delivered their
judgment, which was emphatic in our favour.
— Because of the delay in establishing
the correct jurisprudence for SIAC, very few cases were brought
following the Rehman case. Only two, the appeals of the Sikh terrorists
Paramjit Singh and Mukhtiar Singh (not related) were heard, using
the judgment of the Court of Appeal. The Home Office won in all
respects, save removal, the Commission ruling that to return the
two to India would be contrary to Article 3.
— The Lords judgment in Rehman has
finally established the law which should be applied by SIAC. We
would expect its use to increase considerably.
November, 2001
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