Evidence submitted by the Department for
Constitutional Affairs
BACKGROUND
1. SIAC was established by the Special Immigration
Appeals Commission Act 1997 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.
2. In such cases, the decision will often
rely heavily on assessments prepared by the security and intelligence
services. In these instances, there is a substantial risk that
if the person concerned becomes aware of the detail of the evidence
against him, the source of the evidence will be compromised. This
could mean that surveillance techniques are revealed and lives
potentially put at risk.
3. The Government believes it must be able
to take account of such evidence in the interests of safeguarding
national security. At the same time, it recognises that deportation
from the United Kingdom may have significant consequences for
the individual concerned and in the interests of fairness, he
or she should be allowed to challenge that decision. The procedures
under SIAC are designed to provide the person concerned with an
avenue of appeal and the reasons for that decision to be scrutinised
judicially whilst also avoiding the risk of the source being compromised.
4. A right of appeal to SIAC against an
immigration or asylum decision arises where the Secretary of State
for the Home Department has certified under section 97 of the
2002 Act 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.
5. Since the 1997 Act, SIAC's jurisdiction
has subsequently been extended by the Anti-Terrorism, Crime
and Security Act 2001 (the 2001 Act) and the Nationality,
Immigration and Asylum Act 2002 (the 2002 Act).
6. Section 21 of the 2001 Act enables the
Home Secretary to certify a person as a suspected international
terrorist, if he reasonably believes that the person's presence
in the United Kingdom is a threat to national security and suspects
that the person is a terrorist. This allows the individual to
be detained, even when there is no imminent prospect of his being
removed from the United Kingdom. There is a right of appeal to
SIAC against the certificate under section 25 of the 2001 Act.
SIAC also has responsibility under section 26 of the 2001 Act
for reviewing on a regular basis each certificate that is in force.
7. Section 30 of the 2001 Act also designates
SIAC as the appropriate tribunal for any legal proceedings to
question a derogation by the United Kingdom from Article 5(1)
of the European Convention on Human Rights, which relates
to the detention of a person where there is an intention to remove
or deport him from the United Kingdom. Proceedings challenging
the Derogation Order, brought into force on 13 November 2001,
(A (FC) and others (FC) v Secretary of State for the Home Department)
were at first instance heard by SIAC under this section.
8. The 2002 Act further extended the jurisdiction
of SIAC to include appeals against a decision of the Secretary
of State to make an order depriving a person of a British citizenship
status, where the Secretary of State for the Home Department certifies
that the decision to deprive was based wholly or partly in reliance
on information which he believes should not be made public. Section
40 of the British Nationality Act 1981 (the 1981 Act),
as amended by the 2002 Act, provides that a person may be deprived
of his citizenship status if he has done anything seriously prejudicial
to the vital interests of the United Kingdom or a British overseas
territory.
9. SIAC additionally has powers to hear
applications for bail by persons detained under the Immigration
Acts, including those detained under those Acts by virtue of the
2001 Act, in those cases where the appeal lies to SIAC.
10. Where SIAC makes a final determination
of an appeal, any party to the appeal may bring a further appeal
on any question of law material to that determination. An appeal
may be brought only with the permission of SIAC or, if such leave
is refused, with the permission of the appropriate appellate court.
This further right of appeal with leave was extended to bail decisions
by SIAC in respect of persons certified as suspected international
terrorists under the 2001 Act with effect from 22 September 2004
under the provisions of the Asylum and Immigration (Treatment
of Claimants, Etc) Act 2004.
LEGAL AID
11. Proceedings before SIAC are within the
normal scope of the civil funding scheme, the Community Legal
Service. Cases will therefore be supported if they satisfy the
appropriate means and merits criteria for funding. The merits
criteria for civil funding are set out in the Funding Code which
is made under the Access to Justice Act 1999 and approved
by Parliament. The Code covers matters such as minimum prospects
of success and cost benefit of the case.
12. Proceedings before SIAC were brought
within the scope of the Community Legal Service scheme by the
Lord Chancellor's direction dated 10 December 2002. The Direction
was superseded by paragraph 2(1)(ha) to Schedule 2 to the Access
to Justice Act 1999 (inserted by the Immigration and Asylum
Act 2002) with effect from April 2003. Before SIAC came into
scope such cases could only be funded through the exceptional
funding procedure under section 6(8)(b) of the Access to Justice
Act 1999.
COMPOSITION OF
THE SIAC PANEL
13. Proceedings before SIAC are heard by
a panel of three members. The composition of the SIAC panel is
specified in the 1997 Act, as amended by the NIA Act 2002:
— one member must hold or have held
high judicial office; and
— one must be, or have been, the Chief
Adjudicator or a legally qualified member of the IAT.
(The second requirement will, from 4 April,
be amended to require that one member must be or have been a legally
qualified member of the AIT.)
14. The Lord Chancellor has the power to
appoint one of the members of SIAC to be its Chairman. The current
Chairman of SIAC is Mr Justice Ouseley. Membership of SIAC currently
comprises 22 judicial members, 13 legal members and 13 lay members.
PROCEEDINGS BEFORE
SIAC
15. The procedures to be followed in proceedings
before SIAC are prescribed in the Special Immigration Appeals
Commission (Procedure) Rules 2003. Those procedures as far
as possible mirror those followed in ordinary immigration and
asylum appeals, but with special provisions to allow the Secretary
of State to rely on evidence without disclosing it to the appellant
or his representative, where to do so would be contrary to the
public interest.
16. In order to protect sensitive intelligence
information, the members of SIAC have been the subject of developed
security vetting (DV), as has the person acting on behalf of the
Secretary of State for the Home Department.
17. Rule 4 of the 2003 Rules places a general
duty on SIAC, when exercising its functions, 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. The Commission is also
required (by rule 44) to exclude the appellant and his representative
from a hearing or party of a hearing if it considers it necessary
in order to ensure that information is not disclosed contrary
to the public interest.
18. Under section 6 of the 1997 Act the
relevant law officer (the Attorney-General, the Advocate General
or the Attorney-General for Northern Ireland) may appoint a special
advocate to represent the interests of the appellant in any proceedings
from which he and his legal representative are excluded. The law
officer has a discretion rather than a duty to appoint a special
advocate, but the Secretary of State may not rely on "closed
material" (ie evidence which has not been disclosed to the
appellant or his representative) unless a special advocate has
been appointed.
SPECIAL ADVOCATES
19. There is a two-stage process: selection
and appointment.
SELECTION
— The Attorney General maintains three
civil panels of junior counsel to the crown[11]
who are approved to undertake Government work, according to their
experience and seniority. Competition to become junior counsel
to the crown is strong and appointment to the panel is by way
of an open, fair and transparent process.
— From these panels, Treasury Solicitor's
Department recommends to the Attorney General a potential list
of lawyers with appropriate experience.
— Following approval by the Attorney
General, lawyers are subject to full developed security vetting
(DV), before they are selected to join the "pool" of
DV counsel.
— Lawyers in the "pool" may
be appointed to act for either, the Secretary of State, or as
Special Advocates, in any given case, subject to there being no
conflict of interest between cases.
APPOINTMENT
THE LEGAL
PROVISIONS
— S6(1) Special Immigration Appeals
Commission Act 1997—the Attorney General "may appoint
a person to represent the interests of an appellant in any proceedings
before the Special Immigration Appeals Commission from which the
appellant and any legal representative of his are excluded".
— The Special Immigration Appeals
Commission (Procedure) Rules 2003 provide that the Attorney
General shall be notified by the Secretary of State of a pending
appeal if the Secretary of State intends to oppose the appeal
and intends to object to the disclosure of material to the appellant.
— Rule 34(3) provides that this
is so that the "relevant law officer may appoint a Special
Advocate to represent the interests of the appellant in proceedings
before the Commission."
PROCEDURE
— The fact that detainees' special
advocates are appointed by the Attorney General, who himself has
personally represented the Secretary of State before SIAC has
generated concerns about the appearance of fairness of the process
by which the detainee's interests are represented in closed hearings.
In order to address these concerns the Law Officers have agreed
that the Solicitor General (acting pursuant to section 1 of the
Law Officers Act 1997) appoints the Special Advocate.
— Upon receiving notification from
the Home Secretary, the Solicitor General considers whether or
not to appoint a Special Advocate.
— From the "pool" of DV lawyers,
recommendations are put forward by Treasury Solicitor's Department
on the basis of an assessment of the level of experience that
is necessary for a particular case and availability of counsel.
— The Solicitor General considers the
recommendations and decides whether to appoint a Special Advocate
to a case. [Those appointed to be Special Advocates understand
the nature of their role before they are appointed].
— The appellant (or his representative)
is notified of the proposed appointment and is given the opportunity
to make representations as to whether no special advocate should
be appointed or there is any good reason why the named advocate
should not act (for eg a conflict of interest).
TIME LIMITS
20. The SIAC(Procedure) Rules 2003 set
out the time limits for appeals to SIAC exercising its powers
under the 1997 Act. These include immigration decisions taken
under the 1981 Act, the 2001 Act or the 2002 Act.
— An appellant in detention: not later
than five days after the date on which he is served with the decision.
An appellant in the UK: not later than 10 days after the date
on which he is served with the decision.
— An appellant outside the UK: not
later than 28 days after either the date on which he is served
with the decision, or, where he is in the UK at the time of the
decision, and may not appeal while in the UK, not later than 28
days after the date o which he left the UK.
The Commission may extend the time limits if
satisfied that there are justifiable special circumstances.
21. The 2001 Act sets out the time limit
for appeals to SIAC against certification as a suspected international
terrorist by the Secretary of State for Home Department. An appeal
against certification must be given within a period of three months
beginning with the date on which the certificate is issued or
with the leave of SIAC after the end of this period but before
commencement of the first review by SIAC (See next paragraph).
22. Under the 2001 Act, SIAC must hold a
first review of each certificate issued by the Secretary of State
for Home Department as soon as is reasonably practical after the
expiry of 6 months beginning with the date on which the certificate
was issued.
23. Parties may also make an application
for permission to appeal on a question of law to the Court of
Appeal, the Court of Session or the Court of Appeal in Northern
Ireland, from a final determination by the Commission of an appeal
or a review.
24. The prescribed time limits stipulate
that an application for leave must be filed with the Commission
not later than five days after the applicant has been served with
a copy of the determination where the applicant is in detention;
otherwise, the application must be filed not later than 10 days
after service of the relevant determination.
SIAC PROCEDURES
25. The Government believes these procedures
provide an appellant with a fair and effective means of challenging
decisions while ensuring that sensitive information is protected
from disclosure, and that the composition of SIAC provides it
with the expertise necessary both to assess intelligence material,
and to consider and decide appeals within its jurisdiction. Immigration
and nationality matters do not fall under the head of civil rights
and obligations, and the provisions of Article 6 of the ECHR therefore
do not apply. However, if they did, the Government considers that
SIAC's present procedures fully meet the requirements of that
Article as they relate to civil procedures. This view was endorsed
by the Court of Appeal in March 2004 (Between Secretary of
State for the Home Department and M C2/2004/0516).
26. Annex A sets out a process guide
for hearings before SIAC.
11 Not all counsel on the Special Advocates list are
members of the civil panels of junior counsel to the Crown, see
Ev 81, para 7 Back
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