The draft rules amend the Special Immigration Appeals Commission—which I will call SIAC—rules of procedure, giving effect to two provisions contained within the Immigration Act 2014. These are straight- forward—being consequential to the new Act—but, none the less, important amendments. One will amend a current right of appeal to SIAC and introduce a new power of statutory review to ensure that all cases that should be dealt with by SIAC remain there, while the other will tighten up its bail processes.
Your Lordships will be aware from previous debates that SIAC is a specialist tribunal dealing with the most serious immigration and asylum appeals where there
are issues of national security or other matters of public interest. For instance, it has heard cases under the Anti-terrorism, Crime and Security Act 2001 by persons certified as suspected international terrorists. SIAC heard the deportation case of Abu Qatada, for example. Unlike other immigration tribunals, it has processes in place designed to control the disclosure of material which, if released into the public domain, could be damaging. These are its closed material procedure and its use of special advocates, whereby some of the Home Secretary’s evidence is withheld from the appellant and his representatives. The purpose in both instances is to avoid compromising intelligence sources and the UK’s national security. The appellant’s interests are instead represented by a special advocate—a lawyer of the highest experience and ability and who has access to all the material withheld from the appellant.
The Immigration Act 2014 is being implemented by the Home Office on a phased basis, starting last July, with full and final implementation on 6 April this year. It contains a number of provisions to improve and streamline immigration processes. We have already considered and debated all of the Act’s provisions during its passage last year, so today is not about revisiting those, but rather about the consequential procedural rule amendments that are now required.
The Immigration Act provides that there will be a right of appeal to a tribunal only where fundamental rights are involved. From next month, the Act will remove the current right of appeal to SIAC against deportation decisions where the individual does not claim that removal would breach their human rights. Although it is likely that an individual will claim deportation would breach their human rights, there may still be cases where an appellant does not want to challenge their deportation on that basis, but rather that the reasoning behind the deportation decision itself is flawed. The Act allows for that by introducing a further power of statutory review to SIAC’s jurisdiction.
The number of cases that we are talking about is likely to be very small indeed. SIAC is a low-volume jurisdiction: it currently has only 17 appeals, although it has some other work. Although this does not represent a significant extension to the use of the closed material procedure, we must still make provision to allow SIAC to continue to consider these cases. Without the new review, the only route of challenge once the statutory appeal is removed would be by way of a judicial review to the High Court. This would not be satisfactory for two reasons. First, the High Court has only limited provision for the closed material procedure. Secondly, SIAC is the tribunal with the greatest judicial and panel member expertise in immigration matters and national security cases, and is the specialist in deciding and using closed material procedure.
SIAC is a superior court of record. It is presided over by a senior and experienced judge of the High Court, so this is not a lesser option. SIAC already deals with two other types of statutory review: to set aside a direction by the Home Secretary to exclude a non-EEA national from the UK and to set aside a decision by the Home Secretary in relation to naturalisation and citizenship applications. In both instances, SIAC is required under primary legislation
to apply the same principles that would apply in judicial review proceedings; namely, the principles of natural justice and general public law. This further statutory review will also apply these principles, so SIAC will, as it does now, give full and proper consideration to any request for the closed material procedure.
In mandating those two statutory reviews in SIAC, Parliament has decided that it is the appropriate forum for all immigration challenges involving matters of national security or other public interest. I am sure noble Lords will agree that we would not want to go back on that decision when deciding whether to approve this amendment today.
The Immigration Act also tackles repeated bail applications, which are often made in an effort to delay someone’s removal from the United Kingdom. Before the new Immigration Act there was no limit on the number of bail applications that someone could make, and an identical application could be filed the day after one had been refused. These all currently require a hearing, which can be costly and time consuming. From April, these draft amendment rules will allow SIAC to dismiss a repeat application without a hearing if it is made within 28 days of an earlier unsuccessful application and there has been no material change in the applicant’s circumstances. Similar rules are in place in the First-tier Tribunal Immigration and Asylum Chamber, as required by the Immigration Act provisions which were commenced in October last year, so these amendments provide parity in the rules of procedure.
The draft rules have been produced on behalf of the Lord Chancellor following a short period of consultation by the Home Office and the Ministry of Justice with several of the bodies most familiar with SIAC, including the Law Society, the Bar Council, special advocates and the SIAC chairman and judiciary. We are therefore satisfied that they meet the needs of SIAC users and adjudicators.
The rules before us represent straightforward changes but, as I have outlined, they are critical in preserving our national security. Decisions made by the Home Secretary in reliance on sensitive and potentially damaging material should continue to be challenged at SIAC rather than the High Court. SIAC’s hearing time is best saved for dealing with such matters and for the appellants who genuinely need it, rather than being spent on unmeritorious applications for bail. I therefore commend these rules to the Committee, and I beg to move.