Chapter 4
Administrative decisions and review

International comparison

United Kingdom

4.68The United Kingdom provides a closed process for appeals on administrative immigration decisions through the Special Immigration Appeals Commission (SIAC). This hears appeals against decisions of the Secretary of State for the Home Department from people who are denied entry into the country, are being deported or have been deprived of their citizenship on national security grounds.

4.69The Special Immigration Appeals Commission Act 1997 is a brief piece of legislation. It authorises the making of rules to regulate the conduct of appeals, with particular reference to a power to make rules that enable a hearing to take place without the appellant or their representative being present, being given full particulars of the reasons for the decision that is the subject of the appeal, and a power enabling the SIAC to give the appellant a summary of evidence that is taken in their absence.153

4.70Much of the procedural detail, including disclosure of the national security information, the functions of the special advocate and restrictions on communication with the represented party, is found in the Special Immigration Appeals Commission (Procedure) Rules 2003.

4.71SIAC operates on the presumption of an open court. Where the sensitive nature of information being used makes it necessary, the legislation authorises the appointment of a special advocate – being “a person to represent the interests of an appellant in any proceedings before SIAC from which the appellant and any legal representative of his are excluded”.154

CanadaTop

4.72Canadian legislation provides for the use of special advocates in immigration processes.155 Special advocates in the Canadian scheme are legal representatives with security clearance who are appointed to review the information in question in order to challenge its relevance, reliability and sufficiency.156 They receive administrative support and resources from the Minister of Justice. Special advocates may challenge the claim “that the disclosure of information or other evidence would be injurious to national security or endanger the safety of any person”.157 Having viewed the information in question, the special advocate may then only communicate with another person about the proceeding with the judge’s authorisation and subject to any conditions imposed.158

4.73The powers of the special advocate include making submissions on evidence, cross-examining witnesses and “with the judge’s authorization, any other powers that are necessary to protect the interests of the permanent resident or foreign national”.159 Accordingly, the range of options that are open to the special advocate to protect the interests of the individual are significant, including seeking further disclosure.160

4.74The judge cannot overturn a non-disclosure order that was made by the government on national security grounds. However, the judge can order a stay of proceedings. The powers afforded to the court and special advocate in Canada are thus broader than in New Zealand and arguably strike a better balance between protecting the interest of the public and ensuring a fair process for the individual in question.161

4.75In its 2014 decision in Harkat v Canada, the Supreme Court emphasised that the courts have the power to allow special advocates to communicate with the affected party following access to the classified information when it was necessary to ensure fairness in the proceedings.162

4.76The Supreme Court stated that the judge has:163

… a sufficiently broad discretion to allow all communications that are necessary for the special advocates to perform their duties. The broad discretion … averts unfairness that might otherwise result from the communications restrictions … The judge should take a liberal approach in authorizing communications and only refuse authorization where the Minister has demonstrated, on a balance of probabilities, a real—as opposed to a speculative—risk of injurious disclosure. As much as possible, the special advocates should be allowed to investigate the case and develop their strategy by communicating with the named person, the named person’s public counsel, and third parties who may bring relevant insights and information. Second, the named person and his public counsel can send an unlimited amount of one-way communications to the special advocates at any time throughout the proceedings.

4.77Canadian academic Kent Roach has noted that there have been several instances where the special advocates have been successful in identifying inconsistencies in secret evidence, showing that the Canadian Government had “over-claimed” secrecy. Further documents have been released as a result. Special advocates in Canada have successfully challenged the admissibility of evidence obtained under torture.164

4.78It is noted that, while special advocate legislation applies only to immigration proceedings, special advocates have in fact been used in public interest immunity proceedings and extradition proceedings.165

4.79The Canadian system appears, as Roach said, to strike a balance between judicial oversight and sufficient scope for adversarial challenge to protect the individual’s interests.166

153Special Immigration Appeals Commission Act 1997 (UK), s 5.
154 Special Immigration Appeals Commission Act 1997 (UK), s 6.
155 Kent Roach “Secret Evidence and Its Alternatives” in Aniceto Masferrer (ed) Post 9/11 and the State of Permanent Legal Emergency (Springer, Dordrecht, 2012) at 187.
156Immigration and Refugee Act SC 2001 c 27, s 85.1(2)(b).
157 Immigration and Refugee Act SC 2001 c 27, s 85.1(2)(a).
158Immigration and Refugee Act SC 2001 c 27, s 85.4(2).
159Immigration and Refugee Act SC 2001 c 27, s 85.2(c).
160Similar to Canada, Denmark adopted legislation in the 2009 Aliens (Consolidation) Act. Section 45(e) assigns a special advocate to represent the rights of a person in immigration proceedings, the fees of which come within the legal aid rules. Having viewed the relevant information, the special advocate may not communicate with the person, but the person (or counsel) may communicate to the special advocate in writing.
161 Under the 1985 Canada Evidence Act, the Attorney-General may issue a certificate prohibiting disclosure after court ordered release. This is subject to judicial review.
162Canada (Citizenship and Immigration) v Harkat 2014 SCC 37; [2014] 2 SCR 33 at [66]–[73].
163At [69]–[71].
164Roach, above n 155, at 188.
165At 189.
166 However, following the shooting at Parliament Hill Ottawa in October 2014 legislative changes have been proposed in the 2015 Bill-C51 colloquially known as the Anti-Terror Bill which would introduce tighter controls relating to the protection of classified information in immigration proceedings.