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Closed Material Procedures in Immigration Cases

When an individual challenges a decision made by a public body (as happens in immigration cases), it is generally considered a fundamental feature of natural justice and fairness that they must be shown the evidence relied on by the decision-maker. In the words of Lord Denning:

“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them […] It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other.”

Yet there are cases where this principle – important as it may be – throws up difficulties. Government decisions are often made on the basis of highly sensitive information which, if revealed in open court or even just disclosed to the individual affected, are deemed to pose a serious threat to national security or the safety of others.

Parliament and the courts have developed a range of legal mechanisms for handling these situations. In this article we will consider some of these mechanisms and how they may be relevant in an immigration context.

Where might the Home Office want to withhold evidence in immigration cases?

There are a number of provisions in UK immigration and nationality law that require the Home Office to take into account an individual’s background, circumstances, character, associations and so on. To take a few examples:

  • Rule 9.3.1. of the Immigration Rules provides that an application for entry clearance, permission to enter or permission to stay “must be refused where the applicant’s presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons […]”;
  • Rule 9.3.2. provides that entry clearance or permission held by a person “must be cancelled where the person’s presence in the UK is not conducive to the public good”;
  • Schedule 1, paragraph 1(1)(c) of the British Nationality Act 1981 requires that a person applying to naturalise as a citizen must be “of good character”;
  • Section 40(2) of the British Nationality Act 1981 empowers the Home Secretary to deprive a person of their British citizenship if she is satisfied that to do so “is conducive to the public good”.

In assessing an individual for the purpose of one of these or similar provisions, the Home Office may liaise with other public bodies such as the police, the Foreign Office, the Ministry of Defence, and the security services. In doing so, it may obtain sensitive evidence – for example, evidence that the individual in question has links to (say) organised crime, terrorism, or espionage. On account of this evidence, the Home Secretary may decide to refuse that individual’s application, cancel their existing leave, or make an order to deprive them of citizenship.

If the individual in question then challenges this decision by way of an appeal or judicial review, whichever is available in the circumstances, the Home Office will need to consider the appropriate approach. In some instances, disclosing the relevant evidence may have a range of consequences deemed contrary to public interest, such as compromising an ongoing police investigation or revealing intelligence sources. How, then, can they defend the decision in court?

Public Interest Immunity

The first option open to the Home Office is not to rely on the material at all – either simply by conceding the case, or, if the evidence is not deemed essential, proceeding without it.

If the Home Office does decide to proceed without the evidence, it does not in all cases have to make a specific application to withhold it. In contrast to ordinary civil litigation, the majority of immigration cases do not involve a general duty to disclose all relevant material. In a statutory appeal to the Immigration and Asylum Chamber of the First-tier or Upper Tribunal, the Home Office’s duty is simply to disclose as much as is necessary to avoid knowingly misleading the Tribunal, on top of any evidence relied upon. In judicial review proceedings, the defendant has a duty of candour to lay before the court all the relevant facts and reasoning underlying the decision being challenged. Further, the court may make an order for disclosure where it “appears to be necessary in order to resolve the matter fairly and justly”. Therefore whether or not the sensitive evidence in question falls to be disclosed will depend upon the circumstances of the case.

If the sensitive evidence does fall for disclosure, the Home Office may seek Public Interest Immunity (PII). This is a mechanism, applicable in all civil litigation, by which the court excepts a party from its usual disclosure obligations in relation to specified material on the grounds of public interest. Justifications may include national security, the prevention of crime, or the preservation of international relations (there is no exhaustive list). In deciding whether material is subject to PII, as Singh LJ has explained:

“[…] it is the Court which is the ultimate decision-maker. It will consider whether the risk to the public interest that would be caused if the document were placed in the public domain can be mitigated sufficiently by other steps such that the balance of public interest favours some form of limited disclosure. […] There is no such thing as a class claim to PII any longer; the balancing exercise is undertaken by reference to the contents of the particular document in question.”

A recent example of the Home Office seeking PII in an immigration-related matter was in the high profile litigation concerning the government’s Rwanda policy, where it sought to redact various comments left by a reviewer on a draft Country Policy Information Notice, addressing the asylum system and human rights in Rwanda. The Home Office was unsuccessful in that application.

The significant problem with applying for PII, as far as the Home Office is concerned, is that although the sensitive evidence is protected from being revealed, it then cannot be relied upon. In cases where the evidence was integral to the decision, choosing to proceed without it may be no better than conceding.

Closed material procedures: a brief background

To the government, there are inevitably cases where the perceived risks involved are such that both disclosing the evidence and proceeding without it are equally unthinkable options.

Previously in such cases, the ordinary principles of fairness were dispensed with more or less entirely. For example before 1997, if the Home Office sought to deport a foreign national on national security grounds, the deportee had no right of appeal to a court or tribunal. Instead, they could only put their case before a special Home Office advisory panel, where they had no right to legal representation, and no right to hear the evidence against them. The Home Secretary was not bound by the panel’s recommendations, and whilst the deportee could in theory bring a judicial review or apply for a writ of habeas corpus, the courts would have no power to review any closed material, and so in practice no basis on which to find the decision unlawful.

If this seems a peculiar departure from the principles of natural justice set out by Lord Denning in the quote at the start of this article, the courts and Parliament viewed it as a justified one. In defence of the procedure, Lord Denning himself stated:

“[…] our history shows that, when the state itself is endangered, our cherished freedoms may have to take second place. Even natural justice itself may suffer a set-back. Time after time Parliament has so enacted and the courts have loyally followed. […] Spies, subverters and saboteurs may be mingling amongst us, putting on a most innocent exterior. […] If they are British subjects, we must deal with them here. If they are foreigners, they can be deported. The rules of natural justice have to be modified in regard to foreigners here who prove themselves unwelcome and ought to be deported.”

Thankfully matters have improved somewhat since then. In 1996 the European Court of Human Rights held that this approach was incompatible with article 5(4) of the European Convention of Human Rights (the right of access to a court for those in detention), in combination with article 13 (the right to an effective remedy).

The response to this was the establishment of the Special Immigration Appeals Commission (SIAC) under the Special Immigration Appeals Commission Act 1997, which provided for the first ‘closed material procedure’ (CMP) under UK law.

Where are closed material procedures heard?

SIAC has jurisdiction to review or hear appeals concerning various immigration and nationality decisions (including exclusion, deportation and deprivation of citizenship) which have been certified by the Home Secretary as having been made in reliance on evidence which should not be made public for reasons of national security, public interest or similar.

Subsequent legislation has significantly expanded the range of courts and tribunals that can use CMPs. Many are not relevant in an immigration context, but it is worth noting that following the Justice and Security Act 2013, the High Court now has a general power (subject to various conditions) to use them, and that according to case law, the Supreme Court will adopt a similar procedure to hear secret evidence where doing so is necessary in the interests of a meaningful appeal.

How do closed material procedures work?

A CMP involves both open and closed hearings.

In the former, the proceedings broadly resemble most other kinds of court proceedings: the claimant (technically an ‘applicant’ or ‘appellant’ in immigration cases – claimant is used for ease of reference here) is allowed to be present, and can be represented by their own lawyers, or indeed  represent themselves.

In the closed hearing however, the claimant is excluded, as are their lawyers, and the secret evidence is considered in their absence.

The interests of the claimant are represented at the closed hearing by a ‘Special Advocate’ – one of a select panel of barristers who have been vetted by the Security Service. The Special Advocate is appointed by the Attorney General, though the claimant is permitted to express a preference.

Initially, the claimant and their lawyers can meet with the Special Advocate to discuss the facts of the case. However, once the Special Advocate has seen the closed material, he or she is no longer allowed to communicate with the claimant or their lawyers, except with the permission of the other side. The claimant can continue to pass messages to the Special Advocate (through the Special Advocates’ Support Office) but this is a strictly one-way channel of communication.

If the court deems that some or all of the evidence being heard in secret can in fact be disclosed (i.e. if disclosure would not be contrary to the public interest), it has the power to direct that it be made open. This is generally in the claimant’s interest – often therefore, the Special Advocate’s first task will be to “argue themselves out of a job” by persuading the court that the material should be heard in the open.

In the course of their career, a Special Advocate may come to view a good deal of sensitive material – and information they have been exposed to in a previous case may be relevant in a future one. In this scenario, a Special Advocate is considered “tainted”. Being tainted does not prevent a Special Advocate from acting in a place, but he or she will be barred from meeting the claimant at any point – even before the closed material is heard.

At the end of the hearing, the court will produce both a closed and an open judgment.

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