XX v Secretary of State for the Home Department

LORD JUSTICE MAURICE KAY (Vice President of the Court of Appeal, Civil Division) and LORD JUSTICE RICHARDS ____________________

Timothy Otty QC and Kate Markus (instructed by Birnberg Peirce) for the Appellant Steven Kovats QC (instructed by The Treasury Solicitor) for the Secretary of State Anuja Dhir QC and Cathryn McGahey (instructed by the Special Advocates' Support Office) appeared as Special Advocates Hearing date : 22 June 2010 ____________________

(1) SIAC were wrong not to exclude evidence from unofficial detention centres housing individuals held in incommunicado arbitrary detention and in particular if such evidence was obtained by the attendance of Security Service officers at such places of detention ("Ground 1");

(2) SIAC's conclusion that there was no real risk of a flagrant breach of article 6 involved an irrational finding of fact as to the risk of XX facing prosecution, and an error of law as to the meaning of flagrant breach ("Ground 2"); and

(3) SIAC's conclusion that there was no real risk of ill-treatment inconsistent with article 3, or of a flagrant violation of article 5, involved the error of law identified at (1) above, irrational findings of fact, and a failure to follow House of Lords guidance as to the mandatory pre-requisites to be satisfied before a deportation pursuant to assurances can be lawful ("Ground 3").