9-L_SIAC Guidance Note 11: Information sharing with receiving States

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1. In deportation proceedings it will be necessary to pass personal information regarding the individual being deported to the authorities of the receiving state and possibly to medical institutions in that state. In doing so it is necessary to consider on a case by case basis whether it would be reasonable to disclose confidential information about an individual to the receiving State taking into account the fact that SIAC will act as a safeguard should such disclosure impact upon Safety on Return (SOR). Consideration should be given on a case by case basis as to whether the material should be anonymised (eg when sharing with medical institutions) and whether the disclosure is necessary for a legitimate aim. 2. Broad legal principles a. Any sharing of information with receiving States should comply with article 8 ECHR, any duty of confidentiality owed and the DPA. b. HMG owes a duty of confidentiality in respect of the contents of a person’s asylum claim and the fact that a person has claimed asylum and a very high level of protection is afforded by the law of confidentiality in this context. c. A duty of confidentiality is subject to an overriding public interest in disclosure. Whilst national security may provide such a public interest, we do not usually disclose the fact that a SIAC appellant has claimed asylum and this may make it difficult to establish the overriding public interest in doing so in any particular SIAC case. (However, the Secretary of State was not found to have acted unlawfully in Z and others v SSHD [2009] EWHC 261 (Admin) discussed below.) d. In SIAC proceedings we’ve taken the view that it’s helpful to share with the receiving state information regarding the individual’s involvement in terrorism. The public interest in doing so may override any duty of confidentiality and may justify an interference with article 8 ECHR. International obligations such as UNSC Resolution 1373/2001 require cooperation in this field (including the exchange of information to prevent terrorist acts) and disclosure to the receiving state arguably strengthens the value of assurances. e. The High Court has found that the Secretary of State must ensure she gives no more information to the receiving state than is strictly necessary to ensure that proper assurances are given (including biodata and membership of terrorist organisation): Z and others v SSHD [2009] EWHC 261 (Admin) para 25. f. A person’s membership of a proscribed organisation does not attract the protection of article 8 ECHR or amount to sensitive personal data for the purposes of section 2 DPA. g. It is likely that data sharing with receiving states for the purposes of SIAC deportation proceedings will benefit from the national security exemption in section 28 DPA and therefore, if necessary for the purposes of safeguarding national security, the data protection principles in Schedule 1 to that Act will not apply. h. Where the individual has placed information in the public domain it is unlikely to be protected by article 8 ECHR or any duty of confidentiality (although this will depend on the facts of the case). i. In SIAC cases it is for SIAC to determine whether it is safe to return a person to a country. SIAC therefore provides the ultimate safeguard as to whether disclosure undermines a person’s safety and satellite proceedings should not consider the question of SOR.

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The extent of the protection afforded by the procedural safeguard in article 8 ECHR depends on the circumstances of the case. i. In general, there is no obligation to consult persons being deported for national security reasons before passing personal information to receiving States: see Z and others v SSHD [2009] EWHC 261 (Admin) in which the High Court found there was no obligation to notify the individual of information being shared in the context of terrorism and UNSC Resolution 1373/2001 so long as objectively speaking the disclosure is necessary and reasonable (para 29). ii. But there may be an exception in relation to medical information obtained from the person’s medical records unless there is a national security reason for not consulting. (In OO the Secretary of State conceded that he should have sought representations from the appellant before disclosing medical information verbatim from a medical report with Jordanian hospitals since the individual could have been identified from that information and since it would not have undermined national security to have done so. (See permission decisions in OO v SSHD of 21 January 2008 and [2008] EWHC 1336 (Admin).)

September 2008