100 Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights At both the Canadian and UK Hearings, the Panel heard considerable scepticism about the adequacy of the special advocates system. Many participants at the Hearing in London – including a serving special advocate – argued that the system was incapable of allowing individuals to effectively challenge the allegations made against them. In particular, many considered it problematic that once served with the “closed material”, the special advocate is, as a rule, forbidden from communicating with the appellant or their lawyer. At the Canadian Hearing, participants cited other options in preference to the special advocate system. At the very least, it was argued that the person being “represented” must be able to continue communication with the special advocate (even after the latter had had sight of closed material) – such communication is not allowed in the British system. The system introduced in Canada subsequent to the Hearing nevertheless follows the UK model rather than introducing any further safeguards. Clearly States have a right to determine who is entitled to stay and enter their territory, and to detain persons prior to their removal from the territory, but the potentially damaging impact that deportation, and detention prior to deportation, is likely to have on all those affected, requires that appropriate safeguards are built in. Obvious safeguards include the need for regular and effective review; time-limits on detention pending deportation; no mandatory immigration detentions;235 and judicial oversight to verify, amongst other things, the proportionality of the measure and to ensure that the detention is not a disguised form of administrative detention on discriminatory grounds.236 Especially when a deportation decision affects a longterm or permanent resident, or where there is a risk of the deportee being subjected to human rights violations upon return, only a hearing by a judicial body, vested with full independence in a process which accords with fundamental principles of justice, constitutes an acceptable process. Such an appeal should have a suspensive effect, particularly where irreparable harm is at stake. 2.3 Erosion of the principle of non-refoulement The principle of non-refoulement prohibits States from returning, deporting, extraditing, expelling, transferring or otherwise sending someone to a country where he or she might face a real risk of serious human rights violations. The scope of 235 See ECtHR, Judgment of 15 November 1996, Chahal v. the United Kingdom, Application No. 22414/93, para.  123 and the UN Human Rights Committee condemning mandatory immigration detentions, in Views of 31 October 2006, Danyal Shafiq v. Australia, Communication No. 1324/2004, UN Doc. CCPR/ C/88/D/1324/2004), finding that there must be ‘appropriate justification’ for continued mandatory detention. 236 See in particular Article 2, para. 3 ICCPR and Article 9, para. 4 ICCPR with regard to effective habeas corpus challenges. See also regarding the potentially discriminatory nature of immigration detention measures, the UK House of Lords decision in A. v. Secretary of State, 16 December 2004 (2004) UKHL 56. The 2001 Anti-Terrorism Crime and Security Act empowered the Home Secretary to detain non-nationals who are reasonably suspected of having links to international terrorism and who could not be deported because of a risk of torture upon return. The House of Lords concluded that this system, which effectively allowed indefinite detention of non-nationals, was disproportionate and discriminatory.