Immigration Solicitors

The Special Immigration Appeals Commission, or ‘SIAC’, is a superior court of record in England and Wales, and has been described as “one of the most controversial - and certainly the most secret - court within English law”. This reputation arises from SIAC’s jurisdiction to hear challenges to immigration-related decisions where the Home Secretary has certified that their decision was made based on ‘closed’ (classified) information and evidence that should not be made public, and cannot be heard in open court. Typically, this is because the issues relate to national security. What this means is that if a person challenges a decision through appeal or review, they will not be shown – and will not be able to respond to – all the evidence and allegations upon which the decision was based. In closed material procedures, secret evidence can only be seen by the judge and security-vetted lawyers. This, of course, contradicts what is usually considered a fundamental tenet of fairness and justice: the right of a person to know a case against them, and to have an opportunity to challenge it or put forward their case in response. The decisions reviewed by SIAC often have fundamental and life-altering consequences. For example, the Commission hears appeals against the Home Secretary’s exercise of statutory powers to deprive people of their British citizenship; to exclude individuals from entering the UK; and to deport people – amongst other decisions regarding a person’s entitlement to enter, reside, or remain in the UK. In light of the severity of such decisions, and in an effort to mitigate the challenges that appellants face in the Home Secretary’s reliance on secret evidence, ‘Special Advocates’ (security cleared lawyers) are appointed to represent appellants during the ‘closed’ procedures.
‘Open’ and ‘Closed’ Procedures and the Special Advocates Proceedings in SIAC are divided into ‘open’ and ‘closed’ elements. The open proceedings are similar to other court proceedings. The appellant and their lawyers are provided with information and evidence regarding the decision taken and have the opportunity to respond to that evidence. They may attend the hearing to put their case across. Closed proceedings, however, are undertaken in secret. The closed material is not provided to the appellant or their lawyers, and they are not permitted to attend the closed hearing days where that evidence is put before the court. To represent their interests in the closed proceedings, the appellant will instruct a Special Advocate (‘SA’), from a panel of security-vetted barristers. The SA is appointed in addition to the appellant’s open legal team. Initially, the appellant can communicate freely with their SA, however this ends as soon as the SA has viewed the ‘closed’ material. Once that happens, the SA can no longer communicate with the appellants or their legal team. The appellant may still pass information to the SA, but only through the Special Advocates’ Support Office (‘SASO’) and with the permission of the Home Secretary. There is no response from, or discussion with, the SA. In the course of arguing the appellant’s case in the closed proceedings, the SA will argue for closed evidence to be moved into open court. To do so, the SA must argue that such disclosure would not be contrary to the public interest. If successful, SIAC will direct that material to be disclosed to the appellants, giving them the opportunity to see and respond to it in open court. This will again be provided to the appellant and their legal team via the SASO. Exculpatory Duties on the Home Secretary in Appeal Proceedings In appeal proceedings before SIAC, the Home Secretary must file with the Commission any exculpatory material of which they are aware, alongside the initial statement of reasons as to why they oppose the appeal. This places a duty on the Home Secretary to put before the court any information that they are aware of which contradicts their own case (i.e. information which supports the appellant’s case). This duty is imposed in an effort to compensate for the fact that the appellant is not privy to the closed evidence, and may not even be aware of some or all of the allegations made against them. It requires the Home Secretary to put before the court information that assists the appellant’s case. This duty on the Home Secretary continues if the appellant serves evidence in response to the Home Secretary’s initial open case. If the appellant decides to put evidence forward to support their challenge, therefore, the Home Secretary is required to ‘make a reasonable search for’ further exculpatory material in response to the matters that they have raised. This may involve actively seeking, or requesting from other agencies, further information that could exculpate the Appellant of their alleged wrongdoing. In practice, therefore, evidence in SIAC appeals is typically provided in four ‘rounds’. The Home Secretary will put their open case to the appellants, who have the opportunity to put forward their own evidence in response. Should they do so, the Home Secretary will then put forward their response (including any further evidence arising from the exculpatory search), to which the appellants may put forward any final response, prior to the hearing. This process is intended to ameliorate the inherent unfairness in hearings involving closed material.
Matters before SIAC are particularly complex, and it is always advisable to seek expert legal advice if you wish to bring proceedings before the Commission. If you have been subject to an immigration decision based on reasons relating to public interest or national security – such as a deprivation of citizenship; cancellation of indefinite leave to remain; or refusal of entry clearance – you can contact our public law and immigration team for assistance. Author Oskar Butcher is a senior caseworker and trainee solicitor within the public law and immigration department. He works under the supervision of director Bahar Ata. Their team has experience working in complex appeals and reviews before the Special Immigration Appeals Commission. For advise on all immigration and public law matters, call us today on 033 3772 0409 or email us at OskarB@duncanlewis.com