S2 -v- The Secretary of State for the Home Department (anonymity order)
IN THE SPECIAL IMMIGRATION APPEALS COMMISSION
IN THE MATTER OF AN APPEAL UNDER SECTION 2, AND A REVIEW UNDER SECTION 2C OF THE SPECIAL IMMIGRATION APPEALS COMMISSION ACT 1997
6 November 2019
Secretary of State for the Home Department
UPON reading the applicant / appellant’s application for continued anonymity and reporting restrictions, made pursuant to the Commission’s Practice Note on Anonymity and Related Matters;
UPON considering the documents consisting of an Application Notice, Explanatory Note, Witness Statement of Daniel Furner and Legal Submissions (‘the documents’) lodged in accordance with paragraph 28 of the Commission’s Practice Note on Anonymity Orders and Related Measures (‘the Practice Note’)
UPON being satisfied that an anonymised explanatory note has been served on the media Legal Representatives in accordance with that Practice Note, and that no notice of objection has been served by those Legal Representatives within the relevant timeframe;
AND UPON the Appellant undertaking to keep the Commission and the Secretary of State informed of any matter which may affect the continued need for this order,
IT IS ORDERED THAT:
- Pursuant to rule 39(5)(h) of the SIAC Procedure Rules 2003 the appellant/applicant is to be anonymised, and referred to only as “S2” in these proceedings;
- Pursuant to section 11 of the Contempt of Court Act 1981 there shall be no publication by any person of any matter which, directly, or indirectly, could lead to the identification of S2 as an appellant in these proceedings before the Commission; and
- There be liberty to apply on 48 hours’ written notice to the Commission, to the Appellant, to the Secretary of State and to the Legal Representatives (as defined in the Practice Note).
- This order continues until the OPEN judgment has been handed down in this appeal, or further order in the meantime, unless the Appellant indicates to the Commission, as soon as the OPEN judgment is circulated in draft, that he intends to apply for it to continue after the OPEN judgment is handed down, and applies to the Commission, before that judgment is handed down, for directions for the determination of any such application.
- S2 is an Iraqi national and a Kurd who came to the UK in 2002 and claimed asylum. He was eventually given Indefinite Leave to Remain (ILR) in 2008. In 2006 S2 was convicted of arson and found to be unfit to plead by reason of mental disorder. A hospital order without restriction was made. He has no other convictions.
- S2 has appealed against the Secretary of State’s decision to exclude him from the protection of the Refugee Convention. He has applied for a review of the Secretary of State’s decision to exclude him from the United Kingdom. This order applies in both cases, which are linked.
- Both decisions are based on the Secretary of State’s assessment that S2 has an ‘extremist mindset’, that he is associated with a person who has been convicted of supporting ISIS, and that he might have helped that person to transfer money or people to territory controlled by ISIS. S2 denies these allegations.
- S2’s case is that he intends to rebut those allegations. S2 argues that the allegations, and the evidence which S2 will rely on to rebut them, will expose him and his family to various risks. Those risks, in turn, are said to threaten the effectiveness of his appeal and application.
- First, the Secretary of State accepts that S2’s removal from the United Kingdom to Iraq would violate article 3 of the European Convention on Human Rights (‘the ECHR’). The current litigation affects the type of leave to remain that he might eventually receive. If S2 loses, it is likely that he will be given ‘Restricted leave’ (that is, short periods of leave, which will be frequently reviewed in order to ensure that S2 can be removed at the earliest opportunity).
- If the material in the litigation were publicised, there is a risk that the Iraqi authorities will find out about it. If they did so, S2 contends that the danger to him from the Iraqi state would avoidably and permanently be increased, should be returned there.
- Second, S2 also fears that disclosure of his identity will jeopardise the safety of his remaining family in Iraq, including his mother and four sisters, whose connections with an alleged Islamist extremist are likely to be scrutinised.
- Third, S2 also argues that these orders are necessary to protect him from the threat of physical violence and harassment in the United Kingdom. He relies on Secretary of State for the Home Department v AP (No 2)  UKSC 26,  1 WLR 1652. He fears that there is a risk that he could be a target for Islamophobic violence and far right extremism. He relies on evidence about a recent increase in such attacks.
- S2 is recovering from a serious and enduring mental disorder. His mental health is fragile. He is not in a good position to resist any such attacks or harassment.
- Fourth, S2 has a minor child. He is separated from his partner. He contends that there is a risk that they may also become targets for such violence and/or harassment. S2’s relationship with his son, who is 15 years old, forms part of S2’s OPEN case. It would not be in S2’s son’s best interests for S2 (and thus for him) to be identified.
- Fifth, S2 also argues that to identify him would interfere disproportionately his rights protected by article 8 right of the ECHR and those of his family. The public interest by contrast can be met by media reporting of the fact of the allegations against S2 and publishable features of the case.
- Sixth, if S2 were identified, he argues that there is a risk that his witness, who would also be identified by his link to S2, may refuse to continue to provide evidence in support of S2’s cases. This would affect his ability to present his cases effectively.
- Seventh, S2 argues that the orders are also necessary to protect his reputation and privacy under Article 8 of the ECHR. The allegations against S2 are very serious. If they are made public they are likely to cause serious and irreversible harm to S2’s reputation, as much of evidence relied on by the Secretary of State will not be made public, making it intrinsically difficult to rebut.
- The Commission cannot make findings of fact at this stage about this material. Some or all of S2’s contentions may be well founded.
- It is necessary to maintain the anonymity order in order to guard against the materialising of the risks on which S2 relies. The encroachment into the principle open justice made by this order is therefore necessary, and in the circumstances, the considerations on which S2 relies outweigh the rights under the ECHR of the press and of the public.