9-K_SIAC Guidance Note 10: Fair Hearing: ECHR Considerations

Substantive hearing 1. The House of Lords has found that, in the context of control order proceedings, article 6 ECHR requires the disclosure of a minimum amount of information (regardless of whether disclosure would be contrary to the public interest) to enable the appellant to provide effective instructions to the Special Advocate: SSHD v AF and another [2009] UKHL 28. 2. This should not impact upon substantive immigration proceedings before SIAC since article 6 does not apply to those proceedings: a. The ECtHR has found that article 6 ECHR does not apply to decisions regarding the entry, stay and deportation of aliens (since these do not determine civil rights even if they may affect the individual’s article 8 rights): Maaouia v France 2000 (article 8); Mamatkulov v Turkey 2005 (article 3). SIAC applied this in OO v SSHD 27 June 2008 (preliminary issue) (para 14) finding that article 6 does not apply to deportation appeal proceedings. And we would argue that this ECtHR jurisprudence means that article 6 does not apply to any appeal relating to an immigration decision governing entry. b. The ECtHR has also found that article 6 ECHR does not apply to decisions to deprive an individual of their citizenship: X v Austria 1972; Zeibek & others v Greece 1997; Naumov v Albania 2005; Makuc & others v Slovenia 2007. SIAC applied this in Al Jedda v SSHD 22 October 2008 (preliminary issue). c. The ECtHR has also found that article 6 ECHR does not apply to decisions regarding the grant or refusal of citizenship: S v Switzerland 1988; Soc v Croatia 2000. 3. It is not clear whether the common law requirements of fairness would require a similar level of disclosure to article 6 as applied to control order proceedings (see SSHD v AF and another [2009] UKHL 28 paras 85-86). Even if it did, in the context of SIAC proceedings the common law is overridden by the SIAC (Procedure) Rules 2003 S.I. 2003/1034, which prohibit disclosure that is contrary to the public interest (see rule 4).

Bail proceedings 4. Article 6 ECHR is not engaged by a review of the deprivation of liberty under article 5(4): Roberts v Parole Board [2005] 2AC 738 (paras 40 and 42). 5. However, article 5(4) ECHR applies to SIAC bail proceedings: U, Y, Z, BB and VV v SSHD 20 March 2009 para 17: a. The requirements of article 5(4) vary depending on the circumstances of the case and the basis of detention: Chahal v UK 1996 para 112; A and others v UK 2009 para 203. b. The ECtHR has recognised that the appointment of a special representative with security clearance to consider CLOSED material can provide an appropriate safeguard: Al Nashif v Bulgaria 2003.

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c. SIAC found that article 5(4) does not require the disclosure of information contrary to the public interest in SIAC bail proceedings in deportation cases: U, Y, Z, BB and VV v SSHD 20 March 2009. In doing so it recognised that article 5(4) requires less disclosure in that context than in the context of the Belmarsh detainees (where the ECtHR found that appellants needed to be given sufficient material to enable effective instructions to be provided to the Special Advocate regardless of whether disclosure was contrary to the public interest – A and others v UK 2009). It did so on the basis that the detention in A and others was not under article 5(1)(f) whereas in SIAC bail hearings the appellants are detained in accordance with article 5(1)(f) and the detention is truly ancillary to the purpose of deportation. Furthermore, it recognised that in SIAC bail cases there is already a finding that the person poses a risk to NS in proceedings to which articles 5(4) and 6 do not apply and that finding can be relied upon and is not open to reconsideration in SIAC bail hearings. We are putting forward this distinction in a judicial review of SIAC’s decision of 20 March 2009 which is to be heard in September 2009 (the JR is subject to jurisdiction being granted). d. In that JR the Secretary of State is also putting forward a supplementary argument that the procedural requirements of article 5(4) do not apply to SIAC’s consideration of matters which article 5(4) does not require SIAC to consider – in particular the national security and abscond risk. (SIAC rejected this argument in U, Y, Z, BB and VV v SSHD 20 March 2009.) Rather, the Secretary of State will argue that article 5(4) only applies to those matters which article 5(1)(f) requires to be determined. 6. Common law principles of natural justice require that a person whose liberty is at stake be made aware of the charges and allegations against him: eg SSHD v MB [2007] 3 WLR 681 (para 29). In the context of SIAC proceedings, these common law principles are overridden by the express prohibition on disclosure contrary to the public interest in the SIAC (Procedure) Rules 2003.

September 2009

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