Immigration Appeals Commission, or SIAC in short, is required to
review every certificate, by way of appeal or otherwise, and form its
own view on whether reasonable grounds currently exist for believing a
person’s presence is a risk to national security and for suspecting he is a
terrorist: sections 25 and 26. If SIAC considers these grounds do not
exist the certificate must be cancelled. Thus the certificate issued by the
Secretary of State will lead nowhere if SIAC considers reasonable
grounds do not exist. The certificate, although a prerequisite to exercise
of the Secretary of State’s powers under the Act, will be comparatively
short-lived in its effect if SIAC considers the necessary reasonable
grounds do not exist. In other words, the certificate is in the nature of an
essential preliminary step.
76.
For its part, in forming its own view on whether reasonable
grounds exist SIAC is discharging a judicial function which calls for
proof of facts by evi dence. The ethical ground on which information
obtained by torture is not admissible in court proceedings as proof of
facts is applicable in these cases as much as in other judicial
proceedings. That is the present case.
77.
Similar problems are bound to arise with other counter-terrorism
legislation. One instance concerns decisions by the Secretary of State to
deport on the ground that deportation is conducive to the public good as
being in the interests of national security. An appeal lies to SIAC,
which must allow an appeal if the decision involved the exercise of
discretion by the minister and SIAC considers the discretion should have
been exercised differently: section 2 of the Special Immigration Appeals
Commission Act 1997, as substituted by the Nationality, Immigration
and Asylum Act 2002. Another instance concerns non-derogating
control orders made by the Secretary of State under section 2 of the
Prevention of Terrorism Act 2005. Here the role of the court is
expressed to be of a different and more limited character than under the
2001 Act. Under the 2005 Act the supervisory role of the court
regarding non-derogating control orders is essentially limited to
considering whether the relevant decision of the Secretary of State is
‘flawed’. In deciding this issue the court must apply the ‘principles
applicable on an application for judicial review’: section 3(11).
78.
Whether the Secretary of State may take tainted information into
account when making decisions under statutory provisions such as these,
and whether SIAC’s function requires or permits evidence to be given of
all the matters taken into account by the Secretary of State, are questions
for another day. They do not call for decision on these appeals, and they
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