72
OTHMAN (ABU QATADA) v. THE UNITED KINGDOM JUDGMENT
Kaushal and Others make clear, Article 13 of the Convention cannot be
interpreted as placing an absolute bar on domestic courts receiving closed
evidence, provided the applicant’s interests are protected at all times before
those courts.
220. Second, the Court has previously found that SIAC is a fully
independent court (see A and Others v. the United Kingdom, cited above,
§ 219). In the present case, just as in any appeal it hears, SIAC was fully
informed of the Secretary of State’s national security case against the
applicant. It would have been able to quash the deportation order it had been
satisfied that the Secretary of State’s case had not been made out. As it was,
SIAC found that case to be “well proved”. The reasons for that conclusion
are set out at length in its open determination.
221. Third, while Parliament may not originally have intended for SIAC
to consider closed evidence on safety or return, there is no doubt that, as a
matter of domestic law, it can do so, provided the closed evidence is
disclosed to the special advocates. Moreover, as the Government have
observed, SIAC is empowered to conduct a full merits review as to safety of
a deportee on return and to quash the deportation order if it considers there
is a real risk of ill-treatment.
222. Fourth, the Court notes that both the applicant and the third party
interveners have submitted that involvement of special advocates in SIAC
appeals is not sufficient for SIAC to meet the requirements of Article 13.
The Court is not persuaded that this is the case. In A and Others v. the
United Kingdom, cited above, the Grand Chamber considered the operation
of the special advocate system in the context of appeals to SIAC against the
Secretary of State’s decision to detain individuals whom she suspected of
terrorism and whom she believed to be a risk to national security. The
Grand Chamber considered that, in such appeals, the special advocate could
not perform his or her function in any useful way unless the detainee was
provided with sufficient information about the allegations against him to
enable him to give effective instructions to the special advocate (paragraph
220 of the judgment). It was therefore necessary to consider, in each case,
whether the nature of the open evidence against each applicant meant he
was in a position effectively to challenge the allegations against him
(paragraphs 221-224).
223. There is, however, a critical difference between those appeals and
the present case. In A and Others v. the United Kingdom, cited above, the
applicants were detained on the basis of allegations made against them by
the Secretary of State. In the present case, at least insofar as the issue of the
risk of ill-treatment in Jordan was concerned, no case was made against the
applicant before SIAC. Instead, he was advancing a claim that there would
be a real risk of ill-treatment if he were deported to Jordan. In the Court’s
view, there is no evidence that, by receiving closed evidence on that issue,
SIAC, assisted by the special advocates, failed to give rigorous scrutiny to
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