West Law Report

AS (LIBYA) & ANR v HOME SECRETARY & ANR

Posted in Art. 3 European Convention on Human Rights, Torture, Westlaw Reports by mrkooenglish on May 2, 2008

Last updated: 4:13 PM BST 29/04/2008
Court of Appeal (Civil Division)

Sir Anthony Clarke MR, Buxton and Smith LJJ

April 9, 2008

Deportation – Inhuman or degrading treatment or punishment – Libya – Memorandums of understanding – National security – Torture – Art. 3 European Convention on Human Rights 1950

FACTS

The appellant secretary of state appealed against a decision allowing the appeals of the respondent Libyan nationals against deportation. Both respondents had been served with a deportation order on the grounds that their presence in the United Kingdom was not conducive to the public good because they were a danger to national security. Their appeals against deportation were allowed by the Special Immigration Appeals Commission on the basis that there were substantial grounds for believing that the respondents faced a real risk of suffering ill-treatment contrary to the European Convention on Human Rights 1950, art. 3, if they were returned.

A memorandum of understanding had been entered into between the UK and Libya that provided the UK with assurances that anyone deported from Libya would be properly treated. It was accepted by the secretary of state that, in the absence of the memorandum, there would be substantial grounds for believing that there was a risk of the respondents being tortured on their return. It was accepted on behalf of the respondents that if Libya complied with the memorandum there was no such risk. The commission found that Libya’s motivation and reasoning might change and that it might not honour the memorandum.

The secretary of state submitted that the commission (1) failed to direct itself as to the correct test to measure the degree of risk that the respondents would suffer ill-treatment contrary to art. 3 on return by repeatedly stating that the question was whether there was a real risk of the respondents suffering torture contrary to art. 3 on return, rather than asking itself whether there were substantial grounds for believing that the respondents would face such a real risk; (2) failed to give sufficient weight to the evidence of an expert diplomatic witness (L) and/or wrongly substituted its own assessment for L’s and/or failed to give sufficient reasons for rejecting his evidence; (3) erred in lowering the test for risk on return to take account of the unpredictability of future events in Libya; (4) had come to the conclusion that there were substantial grounds for believing that the respondents faced a real risk of suffering ill-treatment contrary to art. 3 based on findings of fact that did not warrant or support that conclusion.

ISSUES

(1) Whether the commission failed to direct itself as to the correct test to measure the degree of risk that the respondents would suffer ill-treatment contrary to art. 3 on return.

(2) Whether the commission failed to give sufficient weight to the evidence of an expert diplomatic witness.

(3) Whether the commission erred in lowering the test for risk on return to take account of the unpredictability of future events in Libya.

(4) Whether the commission had come to the conclusion that there were substantial grounds for believing that the respondents faced a real risk of suffering ill-treatment contrary to art. 3 based on findings of fact that did not warrant or support that conclusion.

HELD (appeal dismissed)

(1) The submission that the commission misstated the relevant test involved the assertion that it had made an inexplicable error. The correct approach was to consider the judgment of the commission as a whole and to only hold that it had erred in law if it was quite clear that it had done so, AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2007] 3 WLR 832 applied. It was common ground that the correct test was whether substantial grounds were shown for believing that the respondents would face a real risk of suffering ill-treatment contrary to art. 3 of the Convention on return to Libya and that meant no more than that there must be a proper evidential basis for concluding that there was such a real risk, Saadi v United Kingdom (13229/03) Times, February 4, 2008 ECHR (Grand Chamber) applied. A considerable amount of evidence was put before the commission, which considered it with care and, on the basis of it, concluded that there would be a real risk of torture. The commission had applied the correct test. As to the formulation of the test, it would be very surprising indeed if the commission misunderstood or misstated it. If the commission was mistaken in the instant case, it was precisely the kind of egregious and inexplicable error that was referred to in AH (Sudan). It was inconceivable that it made such a mistake. The commission had not made an elementary error and had not misstated or misapplied the test.

(2) The commission had not failed to have proper regard to L’s evidence. The commission fully described L’s experience and expertise and approached his evidence entirely properly and appropriately. Although it relied heavily on his evidence it had not accepted L’s evidence that a breach of the memorandum would be almost unthinkable. It was clear that when the commission’s reasoning was taken as a whole it had due regard to the strong views expressed by L.

(3) The commission had not lowered the test to take account of the unpredictability of the future. It understood that the risk of ill-treatment was contingent on other events occurring but that would often be the case. The commission fully understood and applied the correct test.

(4) There was no basis for holding that the findings of fact, namely that there were substantial grounds for believing that there was a real risk of torture, despite the terms of the memorandum, were not capable of satisfying the test or were otherwise irrational.

Philip Sales QC, Robin Tam QC, Tim Eicke and Andrew O’Connor (instructed by Treasury Solicitor) for the appellant. Edward Fitzgerald QC, Raza Husain, Danny Friedman, Hugh Southey (instructed by Birnberg Peirce & Partners) for the respondents. Michael Fordham QC and Tom Hickman (instructed by in-house solicitor) for the intervener. N Garnham QC and J Farbey (instructed by Special Advocates’ Office) as the Special Advocates for the first respondent. A Nicol QC and J Farbey (instructed by Special Advocate’s Office) as the Special Advocates for the second respondent.

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