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In ‘unprecedented’ judgment President of SIAC strikes out Secretary of State’s Safety of Return Reply in protection appeal

Wednesday 14 July 2021

The Appellant was represented by Stephanie Harrison QC and Ali Bandegani of the Garden Court Chambers Immigration Team, instructed by Dan Furner of Birnberg Peirce.

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This is the first time the ‘draconian power’ under rule 40 of SIAC’s Procedure Rules 2003 has been used against the SSHD. The judgment clarifies important features of the SSHD’s disclosure obligations, and the test to be applied when SIAC exercises its strikeout jurisdiction.

(1)   Under Rule 10, the SSHD is obliged to disclose exculpatory material of which she is aware, but the obligation is not ‘absolute’ in the sense that anything and everything known to anyone in the Home Office or an advising department is to be disclosed. If it were, there would never be compliance [§31]. However, the SSHD will breach Rule 10 if she fails to disclose exculpatory material of which relevant officials are in fact aware, or of which they clearly and obviously ought to have been aware [§34].

(2)   ‘Relevant officials’ certainly include individuals handling the appellant’s case, individuals within the Home Office and the FCDO advising on human rights and safety issues, relevant officials at, or seconded to, the British Embassy in the Appellant’s home country, and (necessarily more vaguely) officials within the agencies capable of offering direct input on Safety on Return issues [§34]. This formulation may require revision and refinement in subsequent cases, especially as potentially tricky questions may arise when it comes to documentation within the knowledge of ‘relevant agencies’ [§35].

(3)   Rule 4(3) is treated as the mechanism for obtaining specific disclosure [§31]. The CPR analogue is part 31 used when a party considers disclosure given thus far to be inadequate. If there is no response to a request under Rule 4(3) which covers matters that should have been disclosed under Rule 10 it will be a breach of that rule (and any order). Seen this way, Rule 4(3) requests do no more than identify the respects in which the SSHD is already in breach. Whether a timetable had been provided for a response to such Rule 4(3) requests misses the point [§32].

(4)   As to the test to be applied in strikeout applications under Rule 40(2), applying first principles, the decision in SSHD v SS (Congo) [2015] EWCA Civ 387 is relevant, and sets out the familiar tripartite test in Denton and Hysaj [§66] (significant breach, good reason, all the circumstances).  Referring to §94 of SS Congo, notably that it would be wrong to construct a special rule for public authorities, SIAC held national security provides an important context and is a factor that must be taken into account at the third stage (assessment of all the circumstances). Accepting such orders may well be rare, SIAC rejected the SSHD’s submission that the strikeout jurisdiction should be reserved for ‘exceptional cases’ [§68] as “There should be a reasonably level playing field, particularly in the context of litigation that involves a CLOSED procedure” [§68].

(5) On the facts, SIAC decided the SSHD was in “serious and significant breach” of her disclosure obligations [§76], the delay was not justified [§78] and in all the circumstances of the case [§§79-83], the SSHD’s Safety on Return Reply must be struck out [§84].

The Judgment can be read on the SIAC website. A link to the judgment is available here.

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