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Immigration appeal body can order witness confidentiality

7 March 2012

Seven suspected Algerian terrorists threatened with deportation from the UK, have won a Supreme Court appeal over their bid to have a witness give evidence on their behalf under special conditions of anonymity.

The court ruled that it is open to the Special Immigration Appeals Commission to make an order that the identity and evidence of their proposed witness (W) would remain absolutely and irrevocably confidential to the SIAC and the parties to the appeals, in special circumstances.

The seven claim that if they are returned to Algeria, they are likely to be subjected to torture or other ill treatment. W was concerned that without the order sought, the Secretary of State might 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 objected that she would be unable to participate effectively in the conduct of the appeals before
SIAC, being unable to test either the validity of W's reasons for claiming confidentiality or the substance of W’s evidence itself. Further, she might find herself in possession of information pointing to the existence of a terrorist threat abroad or some other risk to national security, but would be unable due to the order to alert the foreign state to the risk. This could gravely imperil future diplomatic relations with foreign states.

Allowing the appeal, the court said that the objection regarding diplomatic relations was unpersuasive, because the existence of a formal court order ought to be a substantial defence against any diplomatic complaint.

The imperative need, the court continued, was to maximise SIAC’s chances of arriving at the correct decision on the issue before them concerning the safety of the appellants on return to Algeria and, therefore, for SIAC to obtain all such
evidence as might contribute to this task. Accordingly, it was open to SIAC to make absolute and irreversible
ex parte orders of the kind sought.

The power should however be used most sparingly. Before making such an order, SIAC should require the very fullest disclosure from the applicants of (a) the proposed evidence from W, (b) the particular circumstances in which W claimed to fear reprisals, and (c) how the applicants and their legal advisers came to hear about W’s proposed evidence and what if any steps they had taken to encourage W to give that evidence subject to the usual steps generally taken to safeguard witnesses (e.g. anonymity orders and hearings in private).

SIAC should only then, in the interests of justice, grant such an order if it (1) was satisfied that W 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 of return; and (2) had no reason to doubt that W 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.

It would remain open to the Secretary of State to seek a waiver of the order forbidding any further communication of the information.

The court added that it had not been influenced by the circumstances in which the Secretary of State was on occasion entitled to adduce evidence in closed proceedings divulged only to a special advocate and not to the applicant. The scope of the orders sought here was not to be regarded as "levelling the playing field" between the parties, because the Secretary of State in cases before SIAC was acting in the wider public interest and not as an interested party.

Click here to access the judgments.

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