Y & Anor v Secretary of State for the Home Department  UKSIAC 36/2005 (12 July 2006)
|Date of Judgment||12th July 2006|
|Y and OTHMAN||APPELLANTS|
Secretary of State for the Home Department
|For the Appellant - Y
For the Appellant: Othman:
|Mr B Emmerson QC
Mr R Hussein
Mr D Friedman
Birnberg Peirce & Partners
Mr E Fitzgerald QC
Mr R Hussein
Birnberg Peirce & Partners
For the Respondent :
Mr I Burnett QC
Mr R Tam
"2 Jurisdiction: appeals
1. A person may appeal to the Special Immigration Appeals Commission against a decision if-
(a) he would be able to appeal against the decision under section 82(1) or 83(2) of the Nationality, Immigration and Asylum Act 2002 but for a certificate of the Secretary of State under section 97 of that Act (national security etc), or
(b) an appeal against the decision under section 82(1) or 83(2) of that Act lapsed under section 99 of that Act by virtue of a certificate of the Secretary of State under section 97 of that Act."
"97. National Security etc
(1) An appeal under section 82(1) or 83(2) against a decision in respect of a person may not be brought or continued if the Secretary of State certifies that the decision is or was taken-
(a) by the Secretary of State wholly or partly on a ground listed in subsection (2), or
(b) in accordance with a direction of the Secretary of State which identifies the person to whom the decision relates and which is given wholly or partly on a ground listed in subsection (2).
(2) The grounds mentioned in subsection (1) are that the person's exclusion or removal from the United Kingdom is-
(a) in the interests of national security, or
(b) in the interests of the relationship between the United Kingdom and another country.
(3) An appeal under section 82(1) or 83(2) against a decision may not be brought or continued if the Secretary of State certifies that the decision is or was taken wholly or partly in reliance on information which in his opinion should not be made public-
a. in the interests of national security,
b. the interests of the relationship between the United Kingdom and another country, or
c. otherwise in the public interest.
(4) In subsections (1)(a) and (b) and (3) a reference to the Secretary of State is to the Secretary of State acting in person."
"(3) Rules under this section may, in particular-
(a) make provision enabling proceedings before the Commission to take place without the appellant being given full particulars of the reasons for the decision which is the subject of the appeal,
(b) make provision enabling the Commission to hold proceedings in the absence of any person, including the appellant and any legal representative appointed by him,
(c) make provision about the functions in proceedings before the Commission of persons appointed under section 6 below, and
(d) make provision enabling the Commission to give the appellant a summary of any evidence taken in his absence.
(6) In making rules under this section, the Lord Chancellor shall have regard, in particular, to-
(a) the need to secure that decisions which are the subject of appeals are properly reviewed, and
(b) the need to secure that information is not disclosed contrary to the public interest."
"4(1) When exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.
(2) Where these Rules require information not to be disclosed contrary to the public interest, that requirement is to be interpreted in accordance with paragraph (1).
(3) Subject to paragraphs (1) and (2), the commission must satisfy itself that the material available to it enables it properly to determine proceedings."
"Parliament can, if it chooses, legislate contrary to fundamental principles of human rights… But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of expressed language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."
i. Internal government and security service opinion on the published 'country material', ie. on the published reports of non-governmental organisations or of other states as to the human rights situation in the proposed receiving States (ie. Algeria and Jordan), tending to undermine the Secretary of State's case that a safe return may be effected and/or tending to support the Appellants' case that it may not;
ii. Internal government and bilateral government material concerning MOUs and their associated monitoring arrangements, and concerning past dealings with the proposed receiving State and its representatives, tending to undermine the Secretary of State's case that diplomatic assurances (1) are trustworthy, (2) are provided in good faith and (3) are an effective, reliable and achievable means of protecting against ill-treatment, and/or tending to support the Appellants' case that they are none of these things.
(a) UK Government internal and/or external communications, minutes, submissions, briefings, minutes of meetings and/or assessments;
(b) telegrams and/or other communications emanating from or passing through British posts in Jordan and Algeria (including those from any Secret Intelligence Service personnel operating from or through those posts); and
(c) communications passing between the UK Government and any foreign Government; and
(d) all relevant correspondence passing between the UK Government and the bodies or organisations selected as possible candidates for the monitoring role. (References to the UK or foreign Governments include all government departments, ministries, Secret Intelligence Service, Security Service, agencies and officials.)
Correspondence within a government department;
Correspondence between government departments;
Correspondence between official and Ministers;
Correspondence between Ministers;
Correspondence between the Foreign and Commonwealth Office and the Egyptian Embassy.
Correspondence relevant to arrangements between the Egyptian government and an organisation which might have been able to monitor any inter-governmental agreement;
Other documents generated during the course of the negotiations with Egypt.
"(7) Where the Commission overrules the Secretary of State's objection or directs him to serve any material on the appellant, the Secretary of State shall not be required to serve the material if he chooses not to reply upon it in the proceedings."
Discussion and Conclusions
MR JUSTICE OUSELEY