SIAC Guidance Note 1:

An Overview of Deportation Cases before SIAC

Introduction
A foreign national or stateless person who is present in the UK is liable to deportation if his
deportation would be conducive to the public good (section 3(5)(a) of the Immigration Act
1971).1 If the SSHD wishes to deport an individual he will issue a notice of intention to
deport. The individual can be detained once such a notice has been served or the notice is
ready to be served (para 2 of Schedule 3 to the Immigration Act 1971).

A person facing deportation has a right of appeal against a decision to make a deportation
order (section 82(2)(k) of the Nationality, Immigration and Asylum Act 2002) (that decision is
enshrined in the notice of intention to deport). Normally, that appeal would be heard by the
Asylum and Immigration Tribunal (AIT). However, where the immigration decision is
certified by the Secretary of State under section 97 of the Nationality, Immigration and
Asylum Act 2002 for reasons for national security then the appeal will be dealt with by the
Special Immigration Appeals Commission (SIAC) (section 2(1) of the SIAC Act 1997 (as
amended)). Appeals from a final determination of SIAC are to the Court of Appeal and the
House of Lords and are confined to points of law.2

The person who is detained pending deportation may apply for bail. If the person is being
deported on national security grounds or the detention has been certified as necessary in the
interests of national security SIAC has jurisdiction to grant bail (section 3 of the SIAC Act
1997). In doing so, SIAC will impose conditions which are designed to meet the national
security threat posed by the individual.

SIAC
SIAC was created specifically to deal fairly and effectively with immigration appeals where
intelligence is part of evidence. It was established by the Special Immigration Appeals
Commission Act 1997 following criticisms by the European Court of Human Rights (in its
judgment in Chahal v the UK 70/1995/576/662) of the UK’s previous arrangements for
challenging national security deportation decisions. (In paragraph 144 of that judgment,
there is a reference to descriptions in the submissions by Amnesty International and others to
a procedure under the Canadian Immigration Act 1976 which allowed evidence to be
examined in the absence of the appellant and his or her chosen representative. This was the
basis for the Special Advocate procedure which is at the heart of SIAC.) Since December
2001, SIAC has been a superior court of record.

Composition
A SIAC panel will be made up of three people; at least one of these will hold (or will have
held) high judicial office (a High Court Judge), and at least one will be (or will have been) a
legally qualified member of the Asylum and Immigration Tribunal (para 5 of Schedule 1 to
the SIAC Act 1997). The third will normally be a person who has experience of national
security matters and be familiar with the kind of evidence that is likely to be presented in
such cases.

1 The automatic deportation provisions in section 3(6) of the 1971 Act and sections 32 and 33 of the UK Borders
Act 2007 identify cases involving the commission of criminal offences in which deportation is deemed to be
conducive the public good and a deportation order must be made. To date no such case has been heard by SIAC
but it is likely such a case will be heard in 2009/10.
2 SIAC can sit anywhere in the UK. An appeal from a SIAC determination made in Scotland will be to the Court of

Session and an appeal from a SIAC determination made in Northern Ireland will be to the Court of Appeal in
Northern Ireland. See section 7 of, and para 4 of Schedule 1 to, the Special Immigration Appeals Commission Act
1997.
Procedures
In SIAC proceedings, the Secretary of State has an obligation to serve exculpatory evidence –
ie evidence which either adversely affects his case or supports the appellant’s case. In
particular, once the appellant has served his evidence, the Secretary of State must make a
reasonable search for exculpatory material and disclose that material (rule 10A of the SIAC
(Procedure) Rules S.I. 2003/1034 (as amended by S.I. 2007/1285)).

Evidence before SIAC is split into “open” and “closed” material. Open material provides
details of the Home Secretary’s suspicions, upon which his decision is based, but this will be
backed up by closed (secret) material. (Closed evidence may include intercept evidence
which is excluded from most court proceedings in the UK by section 17 of the Regulation of
Investigatory Powers Act 2000 but which may be admitted to SIAC by virtue of the exception
in section 18 of that Act.) SIAC has a duty to ensure that information is not disclosed
contrary to the interests of national security, the international relations of the UK, the
detection and prevention of crime or in other circumstances where disclosure is likely to
harm public interest (rule 4 of the SIAC Procedure Rules).

The Secretary of State cannot rely on closed evidence until a Special Advocate has been
appointed (rule 37(2) of the SIAC Procedure Rules). When SIAC is in closed session, the
appellant and his chosen counsel/representatives are excluded from court, and the
appellant’s interests are represented by the Special Advocate. Special Advocates are
appointed by the Attorney-General (or the Lord Advocate or the Attorney-General for
Northern Ireland if the proceedings are in those countries) from a list of security-cleared
counsel to act as an agent independent of Government in the same way as normal counsel is
appointed.

The Special Advocates who are appointed are barristers in independent practice of the
highest integrity, experience and ability. They will have access to all of the closed material
adduced by government and will make submissions to SIAC on behalf of the detainee. This
can include submissions that some or all of the “closed” evidence should be disclosed to the
appellant (rule 38 of the SIAC Procedure Rules). If SIAC rules that certain evidence should
be disclosed, it must either be disclosed or withdrawn from the proceedings and not relied
upon by the Secretary of State.

The Special Advocate is permitted to discuss details of the case with the appellant before the
closed material is presented to him (the Special Advocate). After the closed material has
been presented, contact between the two is restricted (rule 36 of the SIAC Procedure Rules).
To the extent possible, a gist of that closed material is provided to the appellant (rule 37(4)).

Lord Chief Justice Woolf has said of the system: “While the procedures which SIAC have to
adopt are not ideal, it is possible by using special advocates to ensure that those detained can
achieve justice and it is wrong therefore to undervalue the SIAC appeal process.”

September 2009