6 K2 v. THE UNITED KINGDOM DECISION him as to the substance of the Secretary of State’s open case, they felt unable to make any submissions or challenge to that case in the closed proceedings. In the circumstances, they did not consider that it could advance the applicant’s interests for them to seek to engage with the Secretary of State’s closed national security case, although they would seek to advance his position in relation to issues of procedural fairness in the closed proceedings. Although SIAC took the view that the Special Advocates were well-positioned to represent the applicant by testing the Secretary of State’s case, it decided that the first hearing should proceed on the issue of procedural fairness only. 25. The applicant relied on Rule 4(3) of the SIAC Procedure Rules 2007, which required the Commission to “satisfy itself that the material available to it enables it properly to determine proceedings” (see paragraph 39 below). He argued that where an individual was unable to participate effectively in proceedings and was denied an opportunity to rebut the case against him because of legitimate and well-founded fears that to do so would create a risk of serious harm, SIAC could not ensure that all relevant material was before it and therefore was not in a position to comply with its statutory duties. 26. In essence, his “legitimate and well-founded fear” was that the allegation that he was a terrorist might have been communicated by the United Kingdom Government to the Sudanese or even the United States’ authorities. He was therefore fearful that his movements and communications were subject to surveillance by the Sudanese authorities and possibly other counter-terror agencies. If that was the case, by communicating with his representatives or the court he would be placing himself at risk of great harm. He did not accept that he could travel to a third country. Although he acknowledged that he had obtained a Sudanese passport, he believed that he was the subject of a flight ban. 27. In its judgment dated 18 December 2014 SIAC noted at the outset that as an out-of-country appeal was not intrinsically unfair, it was for the applicant to show on the facts that he could not have a fair procedure. This would require clear, objective evidence that he was unable to instruct lawyers or give evidence to SIAC; showing that he had a subjective fear would not be sufficient. 28. Having considered the evidence carefully, SIAC accepted that there might be some risk attached to any attempt by the applicant to leave Sudan. However, it found that there were at least three viable means of communication between the applicant, his lawyers and SIAC: he could communicate with his lawyers via “discreet” communications with lawyers in Sudan; he could use email or some other internet-based system, since there was no convincing evidence in open as to the capacity of the NISS to intercept email, Skype or other social or communication media without