Special Immigration Appeals Commission

The UK parliament has approved changes to the rules of procedure for the Special Immigration Appeals Commission (SIAC) in the UK.  The Commission hears appeals in immigration, asylum and nationality cases that raise questions of national security. 

The government has stated that the changes to the rules are designed "to formalise SIAC practice as it has evolved over the years, to bring SIAC up to date with recent counter-terrorism legislation and to bring the rules into line with the Civil Procedure Rules on dealing with national security cases."

The changes to the rules establish procedures for the representative of the Secretary of State for the Home Office to put before SIAC materials that support the appellant’s case or undermine the Secretary of State’s own case.  The Secretary of State has an obligation to make a reasonable search for such material and bring it to the attention of SIAC.  The changes make clearer when evidence must be served on the Special Advocate.

The amendments also clarify the procedure for withdrawing appeals, and for SIAC itself to strike out an appeal where the appeal is considered to be an abuse of the SIAC process, where a party or Special Advocate fails to comply with directions made by SIAC or where the notice of appeal contains no reasonable grounds for bringing or defending the case.

The amendments clarify that Special Advocates may adduce evidence and cross-examine witnesses and that Special Advocates may argue that SIAC should release parts of its "closed" judgment (called a "determination") and include them in the "open" determination.  A closed determination is seen by the Special Advocate, but not by the appellant or his or her legal representatives.

The amendments to the rules also reflect changes to UK law that concern both cases brought before SIAC and cases brought before the ordinary immigration and asylum tribunals.  These include allowing SIAC to make electronic monitoring of the appellant a condition of his or her release on bail and allowing appellants to continue to pursue appeals on the grounds of race discrimination even if their main appeal has finished because they have been given leave to enter or remain in the UK. 

The law in the UK has changed so that appeals against deportation orders in national security cases will be heard after the person has been deported from the UK.  If the person claims that deportation will breach his or her human rights, then this aspect of the case will be addressed before the person is deported unless the Secretary of State certifies that the claim of a risk of breach of human rights is "clearly unfounded."  In such cases, the person can appeal to SIAC against the issue of the certificate.  The changes to the rules make provision for this new procedure.

Procedures before the Commission have been the subject of controversy, because of the use of closed hearings.  Appellants and their legal representatives are not allowed to know what is said in a closed hearing.  In a closed hearing, a court-appointed Special Advocate speaks for the appellant, but the Special Advocate is not allowed to communicate with the appellant and his or her legal representatives after they have seen the "closed" material. Special Advocates can argue that material presented in closed sessions should be disclosed to the appellant and his or her legal representatives.

In the case of R v H & C the Lord Bingham said

"Such an appointment [of a Special Advocate] does however raise ethical problems,
since a lawyer who cannot take full instructions from his client, nor report to his
client, who is not responsible to his client and whose relationship with the client
lacks the quality of confidence inherent in any ordinary lawyer-client relationship, is acting in a way hitherto unknown to the legal profession."

The Special Advocates themselves, in evidence to the UK Parliament’s Constitutional Affairs Committee, which published a report on SIAC in 2005, said:

“We do not consider that the existence of one case in which the detainee's appeal was             allowed demonstrates, as a general proposition, that the use of Special Advocates makes it     "possible… to ensure that those detained can achieve justice." Nor should it be thought that, by continuing in our positions as Special Advocates, we are impliedly warranting the fairness or value of the SIAC appeal process. We continue to discharge our functions as Special Advocates because we believe that there are occasions on which we can advance the interests of the appellants by doing so. Whether we can "ensure that those detained achieve justice" is another matter. The contribution which Special Advocates can make is, in our view, limited by a number of factors—some inherent to the role and others features of the current procedural regime."

The UK Office of the United Nations High Commissioner for Refugees has questioned whether "...SIAC guarantees fair and effective procedure for determining status and protection needs’ and mentioned in particular

“the limited amount of time available for appeals by detainees, the restriction on the entitlement to an oral hearing, the time limits for the Secretary of State to contest an application for bail, and the summoning of witnesses."

In the debates on the new rules in the UK House of Commons on 28 March 2007, members of opposition parties raised these and similar concerns, citing evidence given to the UK parliament’s Joint Committee on Human Rights earlier that months, including by Special Advocates themselves. One Special Advocate told the Joint Committee on Human Rights that SIAC

"is no longer just looking at the national security case to deport.  They are also looking at the safety on return to some of these countries…this is not national security; this  is about foreign relations and things which governments would prefer not to have revealed."

The Minister, Bridget Prentice MP, responding in the debate on the draft rules in the House of Commons, stated

“Clearly the Special Advocate plays a pivotal role in the judicial process…it is a difficult             balancing act…to meet the requirements to represent the appellant’s best interests, often in     the absence of any precise instructions, while at the same time meeting the need to protect     the sources of some crucial information."
 

Alison Harvey, Gherson and Co.