COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE LATHAM
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Nicholas Blake QC and Mr James Collins (instructed by Messrs Sheikh & Co) for the 2nd Appellant
Mr Nicholas Blake QC and Mr Ranjiv Khubber (instructed by Messrs Luqmani Thompson & Partners) for the 3rd Appellant
Ms Monica Carss-Frisk QC and Mr Adam Robb (instructed by Treasury Solicitor) for the The Secretary of State for the Home Department
Crown Copyright ©
Lord Justice Laws:
This is the judgment of the court
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"The starting point should be that if in the circumstances the removal could reasonably be regarded as proportionate, whether or not the Secretary of State has actually said so or applied his mind to the issue, it is lawful. The Tribunal and adjudicators… should normally hold that a decision to remove is unlawful only when the disproportion is so great that no reasonable Secretary of State could remove in those circumstances. However, where the Secretary of State, eg through a consistent decision-making pattern or through decisions in relation to members of the same family, has clearly shown where within the range of reasonable responses his own assessment would lie, it would be inappropriate to assess proportionality by reference to a wider range of possible responses than he in fact uses. It would otherwise have to be a truly exceptional case, identified and reasoned, which would justify the conclusion that the removal decision was unlawful by reference to an assessment that removal was within the range of reasonable assessments of proportionality…"
THE FACTS AND THE DECISIONS OF THE IMMIGRATION APPELLATE AUTHORITIES
"It is rather unfortunate that this case has reached the appeal stage because if the Appellant had not returned to China in 1994 due to her father being ill it is highly probable that she would have been granted indefinite leave to remain as a spouse of a person settled in the United Kingdom. Furthermore, if the Appellant had not been separated from her husband and he had supported her application as his spouse then again the matter would probably not have reached the appeal stage."
"The Appellant is approximately 60 years of age and cannot be expected to make long journeys to the United Kingdom in order to visit her family. The Appellant's family in the United Kingdom cannot be expected to move to China or make regular expensive trips in order to visit her. Both the Appellant's daughter and son-in-law are in employment and her grandchildren attend school. I note from the financial evidence produced that both the Appellant's daughter and son-in-law are of modest means… and therefore cannot be expected to finance expensive trips to China for the whole family or for the Appellant to visit them in the United Kingdom. In short, the Appellant has formed a strong family life in the United Kingdom and her removal cannot be justified and would be disproportionate."
"We have considered her position on the basis that all the Adjudicator accepted of the factual situation is correct but, taking everything at its highest from her point of view, it seems to us that the Secretary of State is entitled to say that it is not disproportionate to remove her in the public interest. For those reasons the appeal of the Secretary of State is allowed." (our emphasis)
"He has girl friends in Iran. He has not been persecuted by the Iranian authority. He has close relatives in Iran, including his father's elder brother and five cousins. He has a family life in the UK with his parents and siblings but it only commenced after his arrival in the UK at the end of 2001… He is now aged 22 and a mature young man who can be expected to continue to pursue his own private life in Iran."
And so the adjudicator held that Mr Kashmiri's removal, so far as it would interfere with his family life in the United Kingdom, would nonetheless be proportionate to the legitimate policy aim of immigration control; and he dismissed the Article 8 appeal.
"17… Although the Secretary of State was not seized of all the detail which is now before us, he was… aware of the broad basis of the claim and was not prepared to accept it. We consider that, unless such a view can be categorized as plainly wrong, it should be accorded appropriate deference by us. (our emphasis)
18. If we are wrong, however, in the view that the Secretary of State had sufficient information before him to make his own informed decision, it does not seem to us that the Appellant makes out his grounds of appeal that the Adjudicator has clearly erred in law in reaching the views as to proportionality of removal which he had expressed. The most that the Appellant could successfully submit in that respect is… that the Adjudicator could have arrived at a different conclusion. But that is wholly different from saying that his conclusion was plainly wrong and therefore unlawful on the totality of the evidence (see M(Croatia)* above)." (our emphasis)
Finally the IAT dismissed the late claim about Mr Kashmiri's sexuality as having no bearing on the result.
THE M*(CROATIA) ISSUE: RIVAL CONTENTIONS
A NON SEQUITUR
THE STATUTORY SOURCE OF THE ADJUDICATOR'S JURISDICTION
"(1) A person who alleges that an authority [sc. including the Secretary of State] has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom,… acted in breach of his human rights may appeal to an adjudicator against that decision…
(2) For the purposes of this Part –
(b) an authority acts in breach of a person's human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.."
Schedule 4 paragraph 21 provides in part:
"(1) On an appeal to him under Part IV, an adjudicator must allow the appeal if he considers –
(a) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or
(b) if the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently,
but otherwise must dismiss the appeal.
(3) For the purposes of sub-paragraph (1), the adjudicator may review any determination of a question of fact on which the decision or action was based."
Appeals from the adjudicator to the IAT are dealt with in paragraph 22 of Schedule 4 which we need not set out. The right of appeal to this court (with permission) is conferred by paragraph 23 "on a question of law material to [the IAT's] determination".
THE AUTHORITIES AND THE FORCE OF PRECEDENT
"44. It is the Convention itself and, in particular, the concept of proportionality which confers upon the decision maker a margin of discretion in deciding where the balance should be struck between the interests of an individual and the interests of the community. A decision maker may fairly reach one of two opposite conclusions, one in favour of a claimant the other in favour of his removal. Of neither could it be said that the balance had been struck unfairly. In such circumstances, the mere fact that an alternative but favourable decision could reasonably have been reached will not lead to the conclusion that the decision maker has acted in breach of the claimant's human rights. Such a breach will only occur where the decision is outwith the range of reasonable responses to the question as to where a fair balance lies between the conflicting interests. Once it is accepted that the balance could be struck fairly either way, the Secretary of State cannot be regarded as having infringed the claimant's Article 8 rights in concluding that he should be removed.
45. So to conclude is not to categorise the adjudicator's appellate function as limited to review. It merely recognises that the decision of the Secretary of State in relation to Article 8 cannot be said to have infringed the claimant's rights merely because a different view as to where the balance should fairly be struck might have been reached."
Ala was in fact a judicial review case, in which the claimant sought an order to quash the Secretary of State's certificate, given pursuant to s.72(2)(a) of the 1999 Act, that his human rights claim was "manifestly unfounded". The statutory effect of the certificate, if it survived challenge, was to deprive the claimant of his right of appeal to the adjudicator against the Secretary of State's substantive decision to remove him from the United Kingdom. However it was common ground that the validity of the certificate depended on the nature of the adjudicator's task on an appeal to him. If he was only to police the "range of reasonable responses", the certificate was good; but if he was to decide the proportionality issue (arising under Article 8) for himself, the certificate was bad, since it was at least arguable that the claimant's Article 8 rights had been violated.
"For our part we find Moses J's analysis in R(Ala) v Secretary of State… entirely convincing and in the result conclude that, in cases like the present where the essential facts are not in doubt or dispute, the adjudicator's task on a human rights appeal under s.65 is to determine whether the decision under appeal (ex hypothesi a decision unfavourable to the appellant) was properly one within the decision maker's discretion, ie, was a decision which could reasonably be regarded as proportionate and as striking a fair balance between the competing interests in play. If it was, then the adjudicator cannot characterise it as a decision 'not in accordance with the law' and so, even if he personally would have preferred the balance to have been struck differently (ie in the appellant's favour), he cannot substitute his preference for the decision in fact taken."
"40. We note that both Moses J and Simon Brown LJ were careful to limit what they said to cases where there is 'no issue of fact' (Moses J) and 'the essential facts are not in doubt or dispute' (Simon Brown LJ). We recognise that, if the adjudicator finds the facts to be essentially the same as those which formed the basis of the Secretary of State's decision, there will be no difficulty in adopting the approach enunciated by Moses J and Simon Brown LJ. But what if the adjudicator finds the facts to be materially different? In such a case, the adjudicator will have concluded that the Secretary of State carried out the balancing exercise on a materially incorrect and/or incomplete factual basis. There is no power in the adjudicator to remit the case to the Secretary of State for a reconsideration of the balancing exercise on the facts as found by the adjudicator. There will, therefore, be cases where it is not meaningful to ask whether the decision of the Secretary of State was within the range of reasonable responses open to him because his determination was based on an accurate analysis of the facts. But even if the adjudicator were to conclude that the Secretary of State's analysis was wrong, it would not necessarily follow that the Secretary of State acted in breach of a claimant's Human Rights Convention rights in such a case. It would remain open to the adjudicator to decide that the conclusion reached by the Secretary of State was lawful (and did not breach the claimant's human rights) because it was, in fact, a proportionate response even on the facts as determined by the adjudicator.
41. Where the essential facts found by the adjudicator are so fundamentally different from those determined by the Secretary of State as substantially to undermine the factual basis of the balancing exercise performed by him, it may be impossible for the adjudicator to determine whether the decision is proportionate otherwise than by carrying out the balancing exercise himself. Even in such a case, when it comes to deciding how much weight to give to the policy of maintaining an effective immigration policy, the adjudicator should pay very considerable deference to the view of the Secretary of State as to the importance of maintaining such a policy. There is obviously a conceptual difference between (a) deciding whether the decision of the Secretary of State was within the range of reasonable responses; and (b) deciding whether the decision was proportionate (paying deference to the Secretary of State so far as is possible). In the light of Edore… we would hold that the correct approach is (a) in all cases except where this is impossible because the factual basis of the decision of the Secretary of State has been substantially undermined by the findings of the adjudicator. Where (a) is impossible, then the correct approach is (b). But we doubt whether, in practice, the application of the two approaches will often lead to different outcomes."
"17. In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on article 8, these questions are likely to be:
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?
18. If the reviewing court is satisfied in any case, on consideration of all the materials which are before it and would be before an adjudicator, that the answer to question (1) clearly would or should be negative, there can be no ground at all for challenging the certificate of the Secretary of State. Question (2) reflects the consistent case law of the Strasbourg court, holding that conduct must attain a minimum level of severity to engage the operation of the Convention: see, for example, Costello-Roberts v United Kingdom (1993) 19 EHRR 112. If the reviewing court is satisfied that the answer to this question clearly would or should be negative, there can again be no ground for challenging the certificate. If question (3) is reached, it is likely to permit of an affirmative answer only.
19. Where removal is proposed in pursuance of a lawful immigration policy, question (4) will almost always fall to be answered affirmatively. This is because the right of sovereign states, subject to treaty obligations, to regulate the entry and expulsion of aliens is recognised in the Strasbourg jurisprudence (see Ullah and Do, para 6) and implementation of a firm and orderly immigration policy is an important function of government in a modern democratic state. In the absence of bad faith, ulterior motive or deliberate abuse of power it is hard to imagine an adjudicator answering this question other than affirmatively.
20. The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal. In Secretary of State for the Home Department v Kacaj  Imm AR 213, paragraph 25, the Immigration Appeal Tribunal (Collins J, Mr C M G Ockelton and Mr J Freeman) observed that:
'although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate.'
In the present case, the Court of Appeal had no doubt (paragraph 26 of its judgment) that this overstated the position. I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."
Although Lord Walker and Lady Hale dissented in the result, we conceive that the House was unanimous as to the correctness of this reasoning.
"24. I have no doubt but that an adjudicator would, and could only, answer questions (3) and (4) in the affirmative. Question (5), being more judgmental, is more difficult and… the Secretary of State and the judge did not consider it. The Secretary of State, moreover, failed to direct himself that article 8 could in principle apply in a case such as this. Question (5) is a question which, on considering all the evidence, before him, an adjudicator might well decide against Mr Razgar…"
We think it plain from this passage, read with paragraph 20 which is cast in general terms, that Lord Bingham contemplated that an adjudicator would properly have arrived at his own decision on the merits in Razgar, had he been called on to answer question (5).
THE M*(CROATIA) ISSUE FURTHER CONSIDERED AND CONCLUDED
"27. The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary…  1 AC 69 the Privy Council adopted a three-stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:
'whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.'
Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases?… The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights… a few generalisations are perhaps permissible. We would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith  QB 517, 554 is not necessarily appropriate to the protection of human rights. It will be recalled that in Smith the Court of Appeal reluctantly felt compelled to reject a limitation on homosexuals in the army. The challenge based on article 8 of the Convention… foundered on the threshold required even by the anxious scrutiny test. The European Court of Human Rights came to the opposite conclusion: Smith and Grady v United Kingdom (1999) 29 EHRR 493. The court concluded, at p 543, para 138:
'the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants' rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the court's analysis of complaints under article 8 of the Convention.'
In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.
28. The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. That does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell  PL 671, 681 has pointed out the respective roles of judges and administrators are fundamentally distinct and will remain so. To this extent the general tenor of the observations in Mahmood  1 WLR 840 are correct. And Laws LJ rightly emphasised in Mahmood, at p 847, para 18, 'that the intensity of review in a public law case will depend on the subject matter in hand'. That is so even in cases involving Convention rights. In law context is everything."
Lord Cooke of Thorndon said this:
"32… Lord Steyn illuminates the distinctions between 'traditional' (that is to say in terms of English case law, Wednesbury) standards of judicial review and higher standards under the European Convention or the common law of human rights. As he indicates, often the results are the same. But the view that the standards are substantially the same appears to have received its quietus in Smith and Grady v United Kingdom (1999) 29 EHRR 493 and Lustig-Prean and Beckett v United Kingdom (1999) 29 EHRR 548. And we think that the day will come when it will be more widely recognised that Associated Provincial Picture Houses Ltd v Wednesbury Corpn  1 KB 223 was an unfortunately retrogressive decision in English administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the deference due to administrative discretion vary with the subject matter. It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd."
A MIDDLE WAY?
INTENSITY OF REVIEW
"My Lords, although the word 'deference' is now very popular in describing the relationship between the judicial and the other branches of government, I do not think that its overtones of servility, or perhaps gracious concession, are appropriate to describe what is happening. In a society based upon the rule of law and the separation of powers, it is necessary to decide which branch of government has in any particular instance the decision-making power and what the legal limits of that power are. That is a question of law and must therefore be decided by the courts."
THE ADJUDICATION OF POLICY
"…the intensity of the review…, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued."
The difference between this approach and Wednesbury is plain to see. Wednesbury review consigned the relative weight to be given to any relevant factor to the discretion of the decision maker. In the new world, the decision maker is obliged to accord decisive weight to the requirements of pressing social need and proportionality. It is important to recognise that Daly was itself a policy case, and indeed the House of Lords struck down certain paragraphs of the material Security Manual "in so far as they provided that prisoners were always to be absent when privileged legal correspondence held by them in their cells was examined by prison officers".
THE ADJUDICATION OF ISSUES OTHER THAN POLICY
THE TRUE RESTRICTION OF THE ADJUDICATOR'S ROLE
"69. …[I]n considering whether Poplar [sc. the housing association] can rely on article 8(2), the court has to pay considerable attention to the fact that Parliament intended when enacting section 21(4)… to give preference to the needs of those dependent on social housing as a whole over those in the position of the defendant… This is an area where, in our judgment, the courts must treat the decisions of Parliament as to what is in the public interest with particular deference. The limited role given to the court under section 21(4) is a legislative policy decision. The correctness of this decision is more appropriate for Parliament than the courts and [the HRA] does not require the courts to disregard the decisions of Parliament in relation to situations of this sort when deciding whether there has been a breach of the Convention.
72. We are satisfied that… section 21(4) does not conflict with the defendant's right to family life. Section 21(4) is certainly necessary in a democratic society in so far as there must be a procedure for recovering possession of property at the end of a tenancy. The question is whether the restricted power of the court is legitimate and proportionate. This is the area of policy where the court should defer to the decision of Parliament. We have come to the conclusion that there was no contravention of article 8…"
This decision was passed upon by their Lordships' House in Harrow LBC v Qazi, but the reasoning we have quoted was not the subject of any criticism or qualification.
"The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom are that the person:
(i) is related to a person present and settled in the United Kingdom in one of the following ways:
(a) mother or grandmother who is a widow aged 65 years or over; or
(e) a parent or grandparent under the age of 65 if living alone outside the United Kingdom in the most exceptional compassionate circumstances, and mainly dependent financially on relatives settled in the United Kingdom; or
(ii) is joining or accompanying a person who is present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; and
(iii) is financially wholly or mainly dependent on the relative present and settled in the United Kingdom; and
(iv) can, and will, be accommodated adequately, together with any dependants, without recourse to public funds, in accommodation which the sponsor owns or occupies exclusively; and
(iva) can, and will, be maintained adequately, together with any dependants, without recourse to public funds; and
(v) has no other close relatives in his own country to whom he could turn for financial support; and
(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity."
There are also the Immigration Directorates' Instructions, which serve as guidance for the application of the Rules. Chapter 8, Section 6, Annex V of these relates to paragraph 317 of the Rules. Other paragraphs of the Rules deal, for example, with a claim to enter as a child of a refugee, which is in the territory of the Kashmiri case, and a claim to enter as a fiancé(e), which is potentially material in the Abu-Qulbain case. Like paragraph 317 they are franked by provisions in the Immigration Directorates' Instructions. We will not set out these further materials. It is common ground that none of the appellants qualifies under the Rules.
"Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."
"The Secretary of State must show that he has struck a fair balance between the individual's right to respect for family life and the prevention of crime and disorder. How much weight he gives to each factor will be the subject of careful scrutiny by the court. The court will interfere with the weight accorded by the decision maker if, despite an allowance for the appropriate margin of discretion, it concludes that the weight accorded was unfair and unreasonable. In this respect, the level of scrutiny is undoubtedly more intense than it is when a decision is subject to review on traditional Wednesbury grounds…"
Samaroo did not involve the statutory jurisdiction of the adjudicator or the IAT. As we have said the proceedings were by way of judicial review to challenge the refusal of exceptional leave to remain. An application for judicial review is categorically inapt as an arena for a full-blown merits appeal. But Samaroo was in any event in truth a policy case. There were no applicable Immigration Rules. The Secretary of State's position was that the gravity of the appellant's crime outweighed the compassionate circumstances. The case was therefore one in which there was an open question as to the respective weight to be given to private right and public interest. The court was in particular asked to make an assessment, in the context of the case's facts, of the importance attached by the Secretary of State to the desirability of the appellant's deportation in light of his criminal past. In those circumstances the principle of respect for the democratic powers was plainly engaged. Our conclusions in these present appeals march with the reasoning in Samaroo.
CONCLUSIONS FOR THESE APPEALS
Note 16 These are the provisions which were effective at times material to these appeals. Appeals to the IAT from adjudicators’ decisions promulgated since 9 June 2003 are now on a point of law only: Nationality, Immigration and Asylum Act 2002 s.101(1). [Back] Note 36 The leading case is Abdulaziz, Cabales and Balkandali (1985) 7 EHRR 471 (paragraph 68). See also, for example, the Commission decision in Poku (1996) 22 EHRR CD 94. [Back] Note 37 Not to be confused with the Strasbourg doctrine of margin of appreciation, which as we have indicated recognises that the Strasbourg court, as an international tribunal, is often not the best judge of the impact of local conditions on the merits of human rights claims. [Back] Note 41 There are of course other general propositions in the books concerning the intensity of review. One is that the greater the interference with a fundamental right, the more intensive the review that is required. This has been stated many times. It first very clearly appeared in the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith  QB 517, 554 referred to by Lord Steyn at paragraph 27 in Daly, cited above. But we doubt whether this goes far to resolve the M*(Croatia) issue. [Back] Note 43 However the use of secret hearings and special advocates before the Special Immigration Appeals Commission under the provisions of Part 4 of the Anti-terrorism, Crime and Security Act 2001, whatever the demerits of that legislation (for which see A(FC) & ors v Secretary of State  UKHL 56),  2 WLR 87 tend to show that, at least in a specially adapted procedural environment, the judicial process can be made apt to resolve specific practical questions arising in the national security field. [Back] Note 46 Though the language has changed through amendments over the years, this has in essence been a requirement of the Immigration Act 1971 since its inception. We need not set out the material provisions. [Back]
Note 16 These are the provisions which were effective at times material to these appeals. Appeals to the IAT from adjudicators’ decisions promulgated since 9 June 2003 are now on a point of law only: Nationality, Immigration and Asylum Act 2002 s.101(1). [Back]
Note 36 The leading case is Abdulaziz, Cabales and Balkandali (1985) 7 EHRR 471 (paragraph 68). See also, for example, the Commission decision in Poku (1996) 22 EHRR CD 94. [Back]
Note 37 Not to be confused with the Strasbourg doctrine of margin of appreciation, which as we have indicated recognises that the Strasbourg court, as an international tribunal, is often not the best judge of the impact of local conditions on the merits of human rights claims. [Back]
Note 41 There are of course other general propositions in the books concerning the intensity of review. One is that the greater the interference with a fundamental right, the more intensive the review that is required. This has been stated many times. It first very clearly appeared in the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith  QB 517, 554 referred to by Lord Steyn at paragraph 27 in Daly, cited above. But we doubt whether this goes far to resolve the M*(Croatia) issue. [Back]
Note 43 However the use of secret hearings and special advocates before the Special Immigration Appeals Commission under the provisions of Part 4 of the Anti-terrorism, Crime and Security Act 2001, whatever the demerits of that legislation (for which see A(FC) & ors v Secretary of State  UKHL 56),  2 WLR 87 tend to show that, at least in a specially adapted procedural environment, the judicial process can be made apt to resolve specific practical questions arising in the national security field. [Back]
Note 46 Though the language has changed through amendments over the years, this has in essence been a requirement of the Immigration Act 1971 since its inception. We need not set out the material provisions. [Back]