My Lords, the amendment provides for the extension of the current SIAC rules to cover new applications resulting from the new jurisdiction inserted into the Special Immigration Appeals Commission Act as a result of the Justice and Security Act 2013. This enables the Home Secretary to certify that certain exclusion, naturalisation and citizenship decisions were made in reliance on sensitive information which should not be made public in the interests of national security, in the interests of the relationship between the UK and another country, or otherwise in the public interest.
The Special Immigration Appeals Commission, or SIAC, was set up under the Special Immigration Appeals Commission Act 1997. It hears immigration and asylum appeals involving national security issues and/or sensitive information which should not be made public—for instance, cases where intelligence is part of the evidence and the material cannot be released to the appellant, or his representatives, for fear of compromising sources or the national security of the UK. It has heard appeals under the Anti-terrorism, Crime and Security Act 2001 by persons certified as suspected international terrorists, and it currently hears appeals against deprivation of citizenship.
The Justice and Security Act 2013, which commenced in June this year, contained a number of provisions designed to control the disclosure, during litigation, of material which if released could be damaging to our national security. Section 15 of the Act amends the Special Immigration Appeals Commission Act 1997 to ensure that, where the Home Secretary excludes someone from the United Kingdom or refuses to naturalise them as a British citizen on the basis of sensitive material, the appropriate place for that decision to be challenged should be the Special Immigration Appeals Commission.
Previously, any individual in that situation could apply to the High Court to set aside the decision. This was a far from satisfactory arrangement for two reasons. First, prior to the Justice and Security Act 2013, the High Court had no facility for closed material proceedings, and even now it has only limited provision for them. Secondly, SIAC is the tribunal with the greatest expertise in considering sensitive national security cases, as well as having expertise in immigration matters.
Parliament therefore deemed that challenges to exclusions or citizenship decisions would be best heard by SIAC. In order for SIAC to entertain these new challenges, its procedure rules must first be amended, and that is what we must turn our attention to now.
The rules that sit before us have been produced on behalf of the Lord Chancellor, following a short period of consultation with several of the parties who best know SIAC. The list of consultees includes the Law Society, the Bar Council and indeed the sitting chair of SIAC.
In the main, the amendments that these rules make simply confirm that all the existing rules, covering the kinds of appeal that SIAC has heard since its inception in 1997, now apply to the review of exclusion and naturalisation decisions. These are purely administrative
changes which establish the guidelines relating to time limits for seeking a review, submission of forms and so on.
However, the rules have a number of substantial effects. First, although SIAC uses closed material proceedings regularly, the SIAC Act 1997 allows this by providing that rules may make provision for closed material proceedings. Therefore, until these rules are passed, it is difficult for SIAC fully to consider applications for review of exclusion or citizenship decisions.
Secondly, these rules establish the obligations upon the Home Secretary when disclosing material following an application for a review of an exclusion or naturalisation decision. These disclosure obligations are slightly different from those attached to a conventional appeal, and new Rule 10B makes that distinction. The difference derives from the fact that applications for review are to be decided on the principles applicable in an application for judicial review, and therefore the duty of candour represents the correct approach to disclosure. By contrast, appeals to SIAC are merits-based. SIAC is not simply reviewing the Home Secretary’s decision; it is making its own. Therefore, in appeals, a fuller disclosure process is required.
Thirdly, your Lordships may wish to note Rule 29, which amends 2003’s Rule 40 to give the commission the power, where appropriate, to reinstate an appeal or application for review which had previously been struck out. This, I hope the Committee will agree, will benefit the interests of justice by ensuring that an appellant or claimant need not be punished for a failure to comply with SIAC’s rules when the failure is for a reason outside their control. Indeed, this amendment results from a judicial suggestion made by the president of SIAC in a recent judgment in a case known as R1—see paragraph 28 of the judgment in R1 dated 21 May 2013, which can be found on SIAC’s website.
There is a particular need to affirm these rules without delay, as until they take effect the new cases which SIAC will hear cannot be progressed to conclusion. That affects the 60 or so claimants whose pre-existing High Court challenges will be certified and terminated under the Justice and Security Act’s transitional powers but whose applications to SIAC cannot be fully considered without these new rules. I beg to move.