Appeal - Deportation - Appeal against deportation on national security grounds

W (Algeria) and another v Secretary of State for the Home Department; PP (Algeria) v Secretary of State for the Home Department; Z (Algeria) and others v Secretary of State for the Home Department; SC (Lords Phillips (president), Brown, Kerr, Dyson, Wilson): 7 March 2012

The appellants, all Algerian nationals, were suspected terrorists whom the respondent secretary of state had proposed to deport to Algeria.

It was common ground that Algeria was a country where torture was systematically practised by state officials and no state official had ever been prosecuted for it. The secretary of state obtained assurances from the Algerian government that the appellants’ rights not to be tortured or subjected to other ill-treatment would be respected on return to Algeria. The Special Immigration Appeals Commission Act 1997 established the Special Immigration Appeals Commission (SIAC) and provided for an appeal system which allowed, where necessary, for ‘closed material procedures’ and the appointment of special advocates.

If the secretary of state wished to adduce evidence which, for reasons of national security or other sufficient public interest reasons, could not safely be communicated to the other party, SIAC’s rules and procedures provided for that to be done. In the instant proceedings, one of the appellants had wished to adduce evidence from a witness who had inside knowledge of the position in Algeria and asserted that, notwithstanding the Algerian Government’s official assurances, those in the appellants’ positions were in fact likely to be subjected on return to torture or other ill-treatment.

The witness was prepared to give evidence in the appellants’ appeals to SIAC only on condition that his identity and evidence would by order remain absolutely and irrevocably confidential to SIAC and the parties to the appeals against deportation. The witness was concerned that the secretary of state might otherwise seek to communicate his evidence to the Algerian authorities, if only to assess its veracity and reliability, and that her doing so would place him and/or his family in peril. The secretary of state had two main objections to such an order being made.

First, she would be unable to participate effectively in the conduct of the appeals before SIAC, being unable to test either the validity of the reasons asserted by the witness in support of his claimed need for confidentiality or the substance of the witness evidence itself. Second, the secretary of state might find herself in possession of information pointing to the existence of a terrorist threat abroad or some other risk to national security, yet, bound by SIAC’s order, unable to alert the foreign state to the risk, which could gravely imperil future diplomatic relations with foreign states.

The appellants propose that there should be an intermediate, inter partes, hearing, by which time the secretary of state would have been provided with full information as to the witness’s identity and intended evidence, and at which she would be able to contend that, for whatever reason, it would be wrong for SIAC to admit that evidence on the substantive appeal. The Court of Appeal held that such undertakings could not be given. The appellants appealed.

The issue was whether, in the circumstances proposed by the appellants, it was open to SIAC to make an order for an absolute and irreversible guarantee of total confidentiality in respect of the witness’s identity and evidence before the same were disclosed to the secretary of state. The appeals would be allowed.

It was open to SIAC to make absolute and irreversible ex parte orders providing that the identity of, and evidence given by, a witness would remain absolutely and irrevocably confidential to SIAC and the parties to the appeals against deportation, and on occasion it might be appropriate to do so. The power to make such orders should, however, be used most sparingly. Before making such an order, SIAC should require the very fullest disclosure from the applicant of: (i) the proposed evidence from his proposed witness; (ii) the particular circumstances in which the witness claimed to fear reprisals; and (iii) how the applicant and his legal advisers had come to hear about the proposed evidence and what if any steps they had taken to encourage him to give that evidence in the usual way subject to the usual steps generally taken to safeguard witnesses in such circumstances, namely anonymity orders and hearings in private. SIAC should only then, in the interests of justice, grant such an order if it: (i) was satisfied that a witness could give evidence which appeared to be capable of belief and which could be decisive, or at least highly material on the issue of safety on return; and (ii) had no reason to doubt that the witness genuinely and reasonably feared that he and/or others close to him would face reprisals if his identity and the evidence that he was willing to give were disclosed to the relevant foreign state (see [19], [20], [34] of the judgment).

The imperative need was to maximise SIAC’s chances of arriving at the correct decision on the issue before it concerning the safety of the applicants following deportation to Algeria and, therefore, for SIAC to obtain all such evidence as might contribute to this task. The fundamental objection of the secretary of state to the proposed order, based on her concerns about being obliged to withhold vital information relating to national security from a foreign state, thereby imperilling future diplomatic relations, was unpersuasive.

It had to be a substantial defence to any diplomatic complaint by a foreign state that the secretary of state was subject to a final and absolute court order prohibiting her from acting differently. If one of the orders were made, and information disclosed appeared to be of importance to national security concerns, it was open to the secretary of state to try to persuade SIAC either to seek from the parties a sufficient waiver of the ex parte order, or, should such waiver prove unobtainable, shut out the evidence submitted (see [11]-[15], [18], [21] of the judgment). Accordingly, the appeals would be allowed (see [19] of the judgment). Decision of the Court of Appeal [2010] All ER (D) 321 (Jul) reversed.

Michael Fordham QC and Stephanie Harrison (instructed by Luqmani Thompson & Partners, Birnberg Peirce & Partners and Tyndallwoods) for the appellants; Robin Tam QC and Robert Palmer (instructed by the Treasury Solicitor) for the secretary of state.