ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
THE IMMIGRATION APPEAL TRIBUNAL
REF: SC702008, BAILII:  UKSIAC SC_70/2008
Strand, London, WC2A 2LL
B e f o r e :
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE THOMAS
LADY JUSTICE BLACK
| (1)IR (SRI LANKA)
(4) AK (PAKISTAN)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Ms Stephanie Harrison and Mr Edward Grieves (instructed by Tyndallwoods) for GT
Ms Stephanie Harrison (instructed by Birnberg Peirce & Ptnrs) for AN
Mr Tim Owen QC and Mr Edward Grieves (instructed by Birnberg Peirce & Ptnrs) for AK
Mr Robin Tam QC, Mr Robert Palmer and Mr Steven Gray (instructed by Treasury Solicitors) for the Respondent
Hearing dates : 11, 12 April 2011
Crown Copyright ©
Lord Justice Maurice Kay :
The approach of SIAC
"has not been able to give instructions to the special advocates about the essential features of the Secretary of State's case which, save for the most general words, is entirely contained in the closed case."
Article 8: the point of principle
"Whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8."
"It is essential that a parent be placed in a position where he or she may obtain access to information which is relied on by the authorities in taking measures of protective care or in taking decisions relevant to the care and custody of a child. Otherwise the parent will be unable to participate effectively in the decision-making or put forward in a fair or adequate manner those matters militating in favour of his or her ability to provide the child with proper care and protection."
I have emphasised the words which permeate the subsequent and more relevant jurisprudence.
"… there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by the Convention …
Even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information."
"The Grand Chamber [in A] has now made clear that non-disclosure cannot go so far as to deny a party knowledge of the essence of the case against him, at least where he is at risk of consequences as severe as those normally imposed under a control order."
Lord Hope added (at paragraph 81):
"The controlled person must be given sufficient information about the allegations against him to give effective instructions to the special advocate. This is the bottom line, or the core irreducible minimum … that cannot be shifted."
"The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."
"The same is a fortiori of the claims of a potential violation of Articles 5, 6 and 8."
See also Lord Hope (at paragraphs 229-233).
The application of the principle
AN and AK: further grounds
(2) The witness
Lord Justice Thomas:
Lady Justice Black: