On 30 January, the Supreme Court (Lords Phillips, Brown, Kerr, Dyson and Wilson) will hear the case of PP (Algeria) v Secretary of State for the Home Department (formerly VV (Jordan) and PP (Algeria) v Secretary of State for the Home Department).

The background to the appeal

The appellants are Algerian or Jordanian foreign nationals. The Secretary of State seeks to deport them on the basis of national security. They claim that, if deported to their countries of origin, they will be at risk of torture, and that their deportation would therefore violate the United Kingdom’s obligations under Article 3 of the ECHR.

Each of the appellants has challenged their deportation before the Special Immigration Appeals Commission (“SIAC”). SIAC was set up by the Special Immigration Appeals Act 1997. This followed the decision in Chahal v United Kingdom [1996] 23 EHRR 413, where the European Court of Human Rights held that the previous system for challenging deportation in national security cases breached Article 5(4) of the Convention. Appeals were not heard by an independent tribunal, but by a shadowy ‘advisory panel’.

SIAC was set up to give people in this situation a Convention-compliant remedy. Still, the 1997 Act provided for a procedure which departed considerably from generally accepted notions of a fair hearing, empowering the Secretary of State to make rules, among other things “enabling proceedings before the Commission to take place without the appellant being given full particulars of the reasons for the decision which is the subject of the appeal” (s.3(a)) and “enabling the Commission to hold proceedings in the absence of any person, including the appellant and any legal representative appointed by him” (s.3(b)). Such rules are now contained in the Special Immigration Appeals Commission (Procedure) Rules 2003, as amended.

The issues

In arguing against deportation, one of the appellants, ‘Z’, wished to rely on evidence from a source who would not consent for it to be used in SIAC unless there was a guarantee that it would not be disclosed to the Algerian authorities. Z applied to SIAC for an order to that effect. Before the Court of Appeal, this was termed the “reverse closed evidence” issue.

Each of the appellants had been given very little information about the reasons why the Secretary of State considered their deportation necessary on national security grounds. They argued that, in SIAC deportation appeals, there is an “irreducible minimum” of information which the Secretary of State must disclose to the individual about the risk which they are said to present to national security. The Court of Appeal referred to this as the “irreducible minimum of information” issue. Despite indications to the contrary on the Supreme Court website, the Supreme Court granted permission to appeal on the “reverse closed evidence” issue alone.

The reverse closed evidence issue

In SIAC, Mitting J found against Z on the reverse closed evidence issue. The basis of his decision was summarised by the Court of Appeal as two propositions:

“The first was that SIAC did not have the power to do what the appellant was seeking. The second … was that even if it had such a power, it might well take the view that the Secretary of State should nonetheless be permitted to disclose the material to the Algerian authorities.” [para.20, per Sir David Keene]

The issue had been narrowed by the time the case reached the Court of Appeal. Z argued that the order he sought was essential to the fairness of the SIAC proceedings, since otherwise evidence essential to his case could not be placed before the Tribunal. By that stage, the Secretary of State accepted that SIAC could grant the order which Z sought, by giving directions under rules 39 and 43 of its rules of procedure preventing the Secretary of State from disclosing the material to any other person, including the Algerian authorities. [para.21] The Secretary of State argued that, while this was procedurally possible, this “is an impossible order for SIAC to be asked to make, since the Secretary of State, once she has seen this material, may be able to demonstrate with evidence of her own that disclosure to the foreign state should be allowed.” [para.21]

The Court concluded that:

“it is not open to SIAC to make an order giving the absolute and irrevocable guarantee which is sought by the appellants. This may create a difficulty for the appellants, because of the reluctance of their potential witnesses, but it is inescapable. The adverse effect on them can be mitigated by such steps as anonymity orders and hearings in private, but irrevocable orders preventing the Secretary of State from disclosing material to a foreign state in any circumstances cannot properly be made by SIAC in advance of the Secretary of State seeing that material. As counsel for the Secretary of State said at the SIAC hearing, such a proposal is unworkable and in my view falls outside the scope of SIAC’s powers to give directions, broad though those powers are.” [para.27]

The appeal before the Supreme Court

The distance between the parties on the “reverse closed evidence” issue has narrowed significantly between SIAC and the Supreme Court. However, there remains an important point of principle about the extent to which SIAC can and should bind the Secretary of State in dealing with particular evidence, before the content of that evidence has been reviewed. It seems unfair for an individual not to have access to a closed evidence procedure if that is necessary for him or her to adduce vital evidence in their defence, given that the Secretary of State can use such procedures to present her case. Equally, the Secretary of State has broader duties which the courts may be reluctant to impede. This is the latest example of the way in which national security cases test the limits of generally accepted standards of fairness.