West Law Report

Deportations will not infringe human rights

Posted in House of Lords (case), Times Law Report by mrkooenglish on February 19, 2009

From The TimesFebruary 19, 2009

Deportations will not infringe human rights
House of Lords
Published February 19, 2009
RB (Algeria) v Secretary of State for the Home Department
U (Algeria) v Same
Othman (Jordan) v Same
Before Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead, Lord Brown of Eaton-under-Heywood and Lord Mance
Speeches February 18, 2009

Appeals from decisions of the Special Immigration Appeals Commission were restricted to questions of law or irrationality.

The commission had been entitled to conclude, having regard to assurances given by the respective governments and to closed material, that the appellants would not, if deported, face a real risk of inhuman treatment contrary to article 3 of the European Convention on Human Rights or of violation of the article 6 right to a fair trial.

The House of Lords (i) dismissed appeals by RB and U, Algerians, from the Court of Appeal (Sir Anthony Clarke, Master of the Rolls, Lord Justice Buxton and Lady Justice Smith) (The Times August 3, 2007; [2008] QB 533) which had allowed their appeals from the commission and remitted their cases to it for reconsideration and (ii) allowed an appeal by the Secretary of State for the Home Department from the Court of Appeal (Sir Anthony Clarke, Master of the Rolls, Lord Justice Buxton and Lady Justice Smith) (The Times April 15, 2008; [2008] 3 WLR 798) which had allowed Omar Othman’s appeal that his expulsion would contravene article 6.

Mr Rabinder Singh, QC and Mr Hugh Southey for RB; Mr Richard Drabble, QC, Mr Hugh Southey and Mr Raza Husain for U; Mr Ian MacDonald, QC, Mr Mark Henderson and Ms Michelle Butler for Liberty, intervening; Mr Robin Tam, QC and Mr Robert Palmer for the Home Secretary; Mr Martin Chamberlain as special advocate for RB and U. Mr Michael Beloff, QC, Mr Robin Tam, QC, Mr Tim Eicke and Mr Alan Payne for the Home Secretary; Mr Edward Fitzgerald, QC, Mr Guy Goodwin-Gill, Mr Raza Husain and Mr Danny Friedman for Mr Othman; Mr Angus McCullough and Mr Martin Chamberlain as special advocates for Mr Othman. Lord Pannick, QC, Miss Helen Mountfield and Mr Tom Hickman for Justice and Human Rights Watch, intervening in all cases.

LORD PHILLIPS said that the Home Secretary wished to deport the appellants on the ground that each was a danger to the national security of the United Kingdom. Each contended that she could not do so because that would infringe his Convention rights.

RB and U contended that deportation to Algeria would infringe their rights under article 3 in that it would expose them to a real risk of torture or inhuman or degrading treatment. Mr Othman made a similar contention and also contended that he would face a real risk of a flagrant breach of his right to liberty under article 5 and of his right to a fair trial under article 6.

Each had unsuccessfully appealed against the order for his deportation to the commission and successfully appealed to the Court of Appeal. In each case, closed material had been put before the commission, which had given open and closed judgments, as had the Court of Appeal.

Closed material was defined by rule 37(1) of the Special Immigration Appeals Commission (Procedure) Rules (SI 2003 No 1034) as material on which the secretary of state wished to rely but which she objected to disclosing to the appellant or his representative.

The right to appeal to the Court of Appeal from a final determination of the commission was stated by section 7 of the Special Immigration Appeals Commission Act 1997 to be “on any question of law material to that determination”.

By restricting appeals to questions of law, Parliament had deliberately circumscribed the review of commission decisions that the Court of Appeal was permitted to undertake, so that it fell well short of the review that would be carried out if a case reached the European Court of Human Rights at Strasbourg.

The commission’s conclusions could only be attacked on the ground that it had failed to pay due regard to some rule of law, had regard to irrelevant matters, failed to have regard to relevant matters or been otherwise irrational. Its decisions could also be attacked on the ground that its procedures, such as the use of closed material, had failed to meet requirements imposed by law.

The wording of subsections (3) and (6) of section 5 of the 1997 Act was clear and contained no hint that rules providing for closed hearings could only be made in so far as that was necessary in the interests of national security and not in relation to the issue of safety on return, as the appellants contended. Rule 4 of the 2003 Rules fell fairly and squarely within the rule-making power in section 5.

The commission’s procedures struck a fair balance between the public interest, to which it was required to have regard, and the need to ensure that the hearing was fair. The appellants had not been denied a fair trial by reason of the use of the closed material.

In RB and U’s cases, the commission had held that, having regard to assurances given by the Algerian Government as to the way in which they would be treated on return, they would not face a real risk of inhuman treatment under article 3 if returned. The Jordanian Government had given similar assurances in Mr Othman’s case.

Decisions of the Strasbourg Court did not establish a principle that assurances had to eliminate all risk of inhuman treatment before they could be relied on, although they should be treated with scepticism if given by a country where inhuman treatment by state agents was endemic. The contention that the assurances did not, on their true construction, protect against inhuman treatment was not well founded.

Mr Othman contended that, if deported, he faced a retrial in respect of charges on which he had been convicted in his absence, that he would be tried by the State Security Court, which was not an independent and impartial tribunal, and that he would be at real risk of being convicted on the basis of confessions made by others that had been obtained by torture.

Before the deportation of an alien would be capable of violating article 6, there had to be substantial grounds for believing that there was a real risk that there would be a fundamental breach of the principles of a fair trial guaranteed by it and that that failure would lead to a miscarriage of justice that itself constituted a flagrant violation of the victim’s fundamental rights. The focus had to be not simply on the unfairness of the trial process but on its potential consequences.

The potential consequences in Mr Othman’s case were sufficiently severe to satisfy the second limb of the test. The question was thus whether there were substantial grounds for believing that he faced a real risk of a fundamental breach of the principles of a fair trial as recognised in Strasbourg.

While in a domestic case, the composition of the State Security Court would violate article 6, it did not follow that that would, of itself, constitute a flagrant breach of article 6 sufficient to prevent deportation in a foreign case.

The United Kingdom was not required to retain in this country to the detriment of national security a terrorist suspect unless it had a high degree of assurance that evidence obtained by torture would not be adduced against him. What was relevant in the appeal was the degree of risk that Mr Othman would suffer a flagrant denial of justice if deported to Jordan.

The commission had concluded that there were no reasonable grounds for believing that, if deported, the criminal trial that he would face would have defects of such significance as fundamentally to destroy its fairness. The Court of Appeal had held that in so concluding it had erred in law. In his Lordship’s view it had not done so, and the secretary of state’s appeal should be allowed.

Lord Hoffmann, Lord Hope, Lord Brown and Lord Mance delivered concurring opinions.

Solicitors: Fisher Meredith; Birnberg Peirce & Partners; Ms Corinna Ferguson, Southwark; Treasury Solicitor; Special Advocates Support Office, Treasury Solicitor. Treasury Solicitor; Birnberg Peirce & Partners; Special Advocates Support Office, Treasury Solicitor. Herbert Smith LLP.

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