European Court of Human Rights

Information Note on the Court’s case-law No. 171

February 2014

I.R. and G.T. v. the United Kingdom (dec.) - 14876/12 and 63339/12

Decision 28.1.2014 [Section IV] See: [2014] ECHR 340

Article 8

Expulsion

Exclusion orders based on undisclosed national security grounds: inadmissible

 

Facts - The case concerned two foreign nationals whom the Secretary of State for the Home Department decided to exclude from the United Kingdom on the grounds that their presence in the country was not conducive to the public good. As the Secretary of State’s decisions were taken on grounds of national security, the applicants’ appeals against these decisions were heard by the Special Immigration Appeals Commission (SIAC). Part of the proceedings before SIAC took place in the absence of the applicants and their legal representatives, but in the presence of special advocates who had been appointed to represent their interests (in a so-called “closed procedure”). SIAC dismissed their appeals in decisions that were upheld by the Court of Appeal. In their application to the European Court, the applicants complained that their exclusion from the United Kingdom and the proceedings before SIAC had violated their rights under Article 8 and/or Article 13 of the Convention, in particular in that they had been denied access to sufficient information to enable them to conduct any meaningful challenge to the national security allegations against them.

Law - Article 8: The applicants’ complaints were directed solely at the procedure followed by the Secretary of State in making the exclusion orders and before SIAC in examining their appeals. In particular, the applicants complained that they were not provided with adequate information to be able to understand and respond to the allegations against them. It was therefore appropriate to examine, in the light of the requirements of Article 8 taken on its own and together with Article 13, the nature and extent of the procedural safeguards available to the applicants during the impugned proceedings.

It was incumbent on States under Article 8 to put in place in cases giving rise to national security concerns a procedure which strikes a balance between the need to restrict access to confidential material and the need to ensure some form of adversarial proceedings. The procedural guarantees inherent in Article 8 would vary depending on the context of the case in question and in some circumstances might not be as demanding as those that applied under Articles 5 and 6 of the Convention. Distinguishing A. and Others v. the United Kingdom, the Court noted that the express reference to the need for detailed information in Articles 5 § 2 and 6 § 3 of the Convention reflected the fact that what was at stake in such proceedings was a person’s liberty, and that the fundamental principle was that everyone has the right to liberty and security of person unless a specified exception applies. By contrast, Article 8 did not guarantee aliens the freedom to enter or reside in the country of their choice and their right to respect for private and family life was qualified by Article 8 § 2, which specifically envisaged exceptions for reasons of national security.

Further, given the overlap between the procedural safeguards under Article 8 and the right to an effective remedy under Article 13, the former had to be interpreted in a manner consistent with the latter. The Court had in previous cases accepted that the context might entail inherent limitations on the remedy and in Al-Nashif v. Bulgaria had explained that in cases concerning the expulsion of aliens on grounds of national security, the guarantee of an effective remedy contained in Article 13 required as a minimum that the competent independent appeals authority be informed of the reasons grounding the deportation decision. It did not go so far as to require provision of this information to the individual concerned.

The Court was satisfied that the procedure in place in the United Kingdom was such as to offer sufficient procedural guarantees for the purposes of Article 8. SIAC was a fully independent court. It saw all the evidence upon which the Secretary of State’s decision to exclude an individual was based. There was some form of adversarial proceedings before SIAC, with appropriate procedural limitations - in the form of the special advocates - on the use of classified information. Cases before SIAC were primarily concerned with allegations of terrorist activity: there was no evidence that SIAC had allowed the Secretary of State to adopt an interpretation of “national security” that was unlawful, contrary to common sense or arbitrary. Only parts of SIAC’s judgments were classified (or “closed”). The appellant was provided with an “open” judgment providing as much information as possible on the reasons for SIAC’s decision. Further, the “closed” parts of the judgment were disclosed to his special advocate. Finally, SIAC had full jurisdiction to determine whether the exclusion interfered with the individual’s Article 8 rights and, if so, whether a fair balance had been struck between the public interest and the appellant’s rights. If it found that the exclusion was not compatible with Article 8, it would quash the exclusion order.

The procedure had functioned as intended in the applicants’ cases and the Court was satisfied that there were sufficient guarantees in the SIAC proceedings as required by Article 8 taken alone and together with Article 13 of the Convention.

Conclusion: inadmissible (manifestly ill-founded).

(See A. and Others v. the United Kingdom [GC], 3455/05, 19 February 2009, Information Note 116; and Al-Nashif v. Bulgaria, 50963/99, 20 June 2002, Information Note 43)

 

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