Article 38 Consideration of Secretary of State’s objectionI1
United Kingdom
Where the Secretary of State makes an objection under rule 36(5)(b) or rule 37, the Commission must decide in accordance with this rule whether to uphold the objection.
The Commission must fix a hearing for the Secretary of State and the special advocate to make oral representations, unless—
the special advocate gives notice to the Commission that he does not challenge the objection;
the Commission has previously considered an objection by the Secretary of State F1relating to the same or substantially the same communication or material, and is satisfied that it would be just to uphold the objection without a hearing; or
the Secretary of State and the special advocate consent to the Commission deciding the issue without an oral hearing.
If the special advocate does not challenge the objection, he must give notice of that fact to the Commission and the Secretary of State within 14 days after the Secretary of State serves on him a notice under rule 36(5)(b) or material under rule 37(3).
Where the Commission fixes a hearing under this rule—
the special advocate may file with the Commission and serve on the Secretary of State a reply to the Secretary of State’s objection;
the Secretary of State may file with the Commission and serve on the special advocate a response to the special advocate’s reply;
the Secretary of State and the special advocate must file with the Commission a schedule identifying the issues which cannot be agreed between them, which must—
list the items or issues in dispute;
give brief reasons for their contentions on each; and
set out any proposals for the Commission to resolve the issues in dispute.
A hearing under this rule shall take place in the absence of the appellant and his representative.
The Commission may uphold or overrule the Secretary of State’s objection.
The Commission must uphold the Secretary of State’s objection under rule 37 where it considers that the disclosure of the material would be contrary to the public interest.
Where the Commission upholds the Secretary of State’s objection under rule 37, it must—
consider whether to direct the Secretary of State to serve a summary of the closed material on the appellant; and
approve any such summary, to secure that it does not contain any information or other material the disclosure of which would be contrary to the public interest.
Where the Commission overrules the Secretary of State’s objection under rule 37 or directs him to serve a summary of the closed material on the appellant—
the Secretary of State shall not be required to serve that material or summary; but
if he does not do so, the Commission may at a hearing at which the Secretary of State and the special advocate may make representations —
if it considers that the material or anything that is required to be summarised might adversely affect the Secretary of State’s case or support the appellant’s case, direct that the Secretary of State shall not rely on such points in his case, or shall make such concessions or take such other steps, as the Commission may specify; or
in any other case, direct that the Secretary of State shall not rely in the proceedings on that material or (as the case may be) on that which is required to be summarised.
Annotations
Textual amendments
- F1
Words in rule 38(2) substituted (7.5.2007) by The Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2007 (S.I. 2007/1285), rules 1(1), 23(a) (with rule 35)
- F2
Rule 38(4) substituted (7.5.2007) by The Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2007 (S.I. 2007/1285), rules 1(1), 23(b) (with rule 35)
- F3
Rule 38(6)-(9) substituted for rule 38(6)(7) (7.5.2007) by The Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2007 (S.I. 2007/1285), rules 1(1), 23(c) (with rule 35)
Commencement
- I1
Rule 38 in force at 1.4.2003, see rule 1