What is SIAC ?

SIAC, otherwise known as the Special Immigration Appeals Commission, is a specialist tribunal that deals with immigration cases where the decisions have some based in whole or part on national security information. SIAC has heard just over 300 cases since its creation in 1997.

In proceedings about the national security information which led to the immigration decision, a special advocate represents the interests of the appellant and the legal team that represents them in the rest of the case before SIAC cannot attend these hearings. The appellant themselves also cannot attend these proceedings.

This post outlines: How SIAC came to exist? Why is SIAC weird? How a case gets heard by SIAC instead of a normal immigration tribunal? Finally I will try and briefly explain why SIAC is problematic.

How was SIAC created?

Before SIAC was established, those who were subject to immigration decisions based on secret evidence could only appeal to a home office advisory panel. There was no right of legal representation but appellants could make their own representations. The secretary of state completely controlled disclosure to the appellant. The Secretary of State was not bound by the advice of the panel and the panel’s advice was not disclosed to the appellant.

In Chahal v UK, which was an appeal based in part on this panel process by a man subject to a deportation order, the grand chamber of the European Court of Human Rights (ECtHR) found a violation of Article 5(4) because there was inadequate recourse to appeal of the deportation order. The panel described above because in the courts view, the British government could protect the secret evidence without denying appellants access to the court system.¹

In the Chahal judgment, the court noted the system of special advocates developed in Canada’s immigration system showed that a more ‘effective form of judicial control’ was possible in immigration cases involving national security information.¹ Professor John Jackson argues the this is misleading because the Canadian procedure was a panel that made recommendations and was not intended to be an alternative to an appeal procedure.²

Special advocates became a part of SIAC due to S.6 of the Special Immigration Appeals Commission Act 1997 (SIAC Act) 1997.³ Special advocates are lawyers that represents the interests of appellants proceedings about the national security information which led to the immigration decision. As mentioned above, the appellant and their legal team cannot attend these hearings to protect the national security information discussed in them. The Home Secretary no longer controls disclosure to the appellant. All evidence that does not need to be withheld due to national security evidence is provided to the appellants and withheld evidence is given to the special advocate. The special advocate can also challenge the Home Secretary’s determination that a particular piece of evidence must remain secret for national security reasons thereby increasing the amount of evidence disclosed to the appellant. The Home Secretary is bound by the decisions of SIAC. So in theory SIAC is better than the previous panel procedure. The issue is that better than the home office panel does not mean unproblematic.

How does a case get to SIAC?

Under S.40 of the British Nationality Act (BNA) the Home Secretary can make an order to remove an individuals citizenship status where it is ‘conducive to the public good’ so long as the order would not make the person subject to the order stateless.⁴

Such an order can also be made where the Home Secretary has reason to believe a person has acted in a way that ‘seriously prejudicial to the vital interests’ and the Home secretary reasonably believes they are eligible for the citizenship of another country.⁵

There is a requirement to give the person subject to the order notice however there are exceptions where they lack the information to do so, for national security reasons, reasons related to the safety of a individual, related to the investigation of a crime or reasons related to avoiding harm to the UKs relationship with another state.⁶

Such decisions are appealed to SIAC due to S.2(1) of the SIAC Act 1997. Under S.2(1) of the SIAC Act states an appeal goes to SIAC if a person would be able to appeal to an ordinary immigration tribunal but for a certificate issued by the Home Secretary stating that the decision was made in whole or part on national security information.⁷ This is the route by which the majority of SIAC cases reach the commission.

Why is SIAC weird?

Special advocates do not have a traditional lawyer-client relationship. The SIAC act itself states this.⁸. The reason is they cannot have such a relationship is because of the fatc they cannot communicate with the appellant after they receive disclosure of the secret evidence. Professor Jackson notes the result of this is that the appellant has limited right to choose and cannot prevent the appointment of a special advocate; the special advocate is not accountable to the appellant. ⁹

Appellants do not get to hear the evidence against them in the proceedings where national security evidence is discussed. Normally, appellants in all immigration cases get to hear the entire of the case against them. Furthermore, outside of the immigration context, it is exceedingly rare for a person to be barred from attending hearings about them. This is truly exceptional.

Appellants also cannot communicate with the special advocate after they receive disclosure of the secret evidence. The Constitutional Affairs Committee in Parliament (CAC) pointed out that in many cases only the appellant will know information that may be used to challenge the validity of the closed evidence but without knowledge of the closed evidence they may not disclose such evidence to the special advocate.¹⁰ This lack of evidence limits the ability of the special advocates to make representations in the appellants best interests. This itself is exceptional, lawyers representing a persons interests in nearly all other proceedings can speak to said person at any time.

Special advocates can request permission from SIAC to speak to the appellant after receiving disclosure of the closed evidence. However, several special advocates noted making such a request is ‘not considered tactically desirable’ because the government can respond to the application.¹¹ Therefore such a request may disclose to the government what parts of the closed evidence that cannot be explained by the appellant which is obviously undesirable because it could give the government a disadvantage.

This can lead to a practice called gisting where the vague gist of the evidence is provided to the appellant as part of the non secret evidence disclosed to them. The issue that the gist of evidence is not the same as the evidence itself, and gisting may not be possible in some cases without disclosing the nature of the secret evidence itself, which would be a violation of the law.

Some special advocates have insisted that they can still challenge the internal reliability of the evidence by pointing out internal inconsistencies, arguing witness statements are unreliable based on other secret evidence and they can make submissions about material that rebuts the government’s case due to initial conversation with the appellant or that is provided to them via secret evidence. It should be noted that the Canadian immigration procedure that includes the use of special advocates has no prohibition on communication with the appellant after they see the secret evidence.¹²

Special advocates can also call experts to testify in proceedings about secret evidence to rebut the governments interpretation of the secret evidence. This can be especially important if they are trying to rebut the governments argument that a particular piece of evidence should be secret. Identifying experts who can testify after seeing the closed evidence can be quite difficult. Between 2000 and 2007 no experts were called by special advocates and between 2007 and 2024 only 1 expert is known to have been called by special advocates.¹³. This might indicate the problems with finding relevant experts and or using their testimony are quite significant. Such problems do not exist in cases that do not involve national security evidence.

Why is the weirdness of SIAC problematic?

The weirdness of SIAC is problematic because all of the above issues impact the fairness of the proceedings. If lawyers cannot talk to their clients after reviewing evidence, they might not know that there is an innocent explanation for the evidence the government is using to justify removing their citizenship status. If they cannot call expert evidence, they might not have the expertise available to convince the judges that the governments interpretation of evidence is incorrect. This all undermines the ability of the special advocate to represent the interests of the appellant.

In cases where the majority of the evidence is secret, the rest of the appellants legal team is making arguments against removal of citizenship status without knowing the details of the case against their client. In such cases, they are making arguments in the dark, without the ability to respond to the states case and hoping they might convince the judges. That is the core of the problem with SIAC, in some cases it might not be capable of providing adequate protection for the rights of appellants.

The matter has not returned to the ECtHR for adjudication. Even if it had, as mentioned above, the effect of SIACs proceedings on the fairness of the case can differ based on how much secret evidence there is. Therefore it is possible SIAC might be more fair with regard to the appellants human rights some cases than others.

The detail of these cases including some of the reasons why SIAC upholds or overturns the decisions of the Home Secretary are secret because those reasons are based in secret evidence. This poses additional difficulties with establishing how SIAC works and whether it is fair because we do not know how the judges reason and weigh the arguments by the government and the appellant and determine which are more convincing.

Ultimately, there is a lot that we just don’t know. Some of that is the inherent product of secrecy and relying on secret evidence. But some of it is the product of choices made by successive governments. For example, the bar on discussion between the appellant and special advocate can be removed as is the case in the Canadian procedure that inspired SIAC. That was a political choice made in 1997 and reaffirmed each time the government uses this procedure, because at least in theory governments should not be able to conduct themselves in ways that have the capacity to violate the human rights of those with British citizenship status.

The requirements that orders do not make people stateless focuses on whether there were grounds for the Home Secretary to believe the person has citizenship status and whether that belief was reasonable. Therefore the standard of protection offered by this requirement is not particularly high and it can be used where a person does not have citizenship status but could have it, as was the case with Shamima Begum.

Given the gravity of citizenship status removal and the fact many of those subject to them are former members of ISIS detained in northern Syria in conditions which violate international law, including the prohibition on torture,¹⁴ it should be clear in what circumstances the UK government can remove citizenship. This is both a rule of law issue but also a democratic one. How can we know whether the voting population agrees with the way the Home Secretary has used this power without known the reasons why they have used it and the circumstances of their decisions?

Hannah Arendt argued that a precondition of all human rights is citizenship as it represents the the right to be part of a political community, a state, who according to the law are the guarantors of human rights.¹⁵ Therefore in her words, without citizenship, there can be no right to have any other rights. British people should know when the government believes they have the right to deprive people of the right to have rights.

Regards

IMI