Judgments - RB (Algeria) (FC) and another (Appellants) v Secretary of State for the Home Department
OO (Jordan) (Original Respondent and Cross-appellant) v Secretary of State for the Home Department (Original Appellant and Cross-respondent)

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59.  SIAC held, however, that the authorities established that this was not enough to render the United Kingdom in breach of Article 6 by deporting Mr Othman to Jordan. The test was whether there was a real risk of a “total denial of the right to a fair trial". They concluded that when the picture of the trial was looked at as a whole this test was not satisfied. Aspects of the judicial system that weighed against a finding that there would be a total denial of a fair trial included the following:

“The retrial would take place within a legally constructed framework covering the court system, the procedural rules and the offences. The civil law system contains aspects anyway which may seem strange to eyes adjusted to the common law, but which do not make a trial unfair. The charges relate to offences which are normal criminal offences rather than, as can happen, offences of a nature peculiar to authoritarian, theocratic, or repressive regimes. There is some evidence, if admitted, which would support the charges.”

“The Appellant would be present at the retrial. The trial would be in public and would be reported. Even with local media restrictions, its progress would be reported on satellite channels. He would be represented by a lawyer and at the public expense, if necessary. He would know of the charges and the evidence; indeed he already knows some of it. There would probably be a shortfall in time and facilities for the preparation of the defence on the general background evidence but the particular position of the Appellant would probably obtain for him better facilities and time than most Jordanian defendants.”

“The civil law system dossier or file does not mean that evidence cannot be challenged. It can be. The Appellant could give evidence and call witnesses, including those whose statements were in the dossier and who claim that they were involuntary. The fact that one possible witness has been executed for other offences, (not to prevent his giving evidence for he gave evidence at the first trial), does not show the trial system or the retrial to be unfair. His evidence could impact only tangentially, it would appear, on the Appellant’s involvement. The difficulties which other witnesses may face, notably Abu Hawsher, would not make the retrial unfair.”

“The existence of a legal prohibition on the admissibility of such evidence cannot be ignored, nor the fact that the SSCt would hear evidence relating to the allegations. The role of the Court of Cassation in reviewing and at times overturning the conclusions of the SSCt on this issue is material.”

Mr Othman’s appeal to the Court of Appeal

60.  Mr Othman’s appeal to the Court of Appeal [2008] EWCA Civ 290; [2008] 3 WLR 798 succeeded on one point alone. The Court of Appeal, in a judgment delivered by Buxton LJ, held that deportation of Mr Othman to Jordan would involve a breach by the United Kingdom of Mr Othman’s rights under article 6 of the Convention. SIAC had rightly held that such a breach would only arise if Mr Othman faced a real risk of a flagrant denial of a fair trial in Jordan, by which was meant the complete denial or nullification of the right to a fair trial. SIAC had, however, erred in law in concluding that this test was not satisfied. The critical factor was that the unfairness in issue related to the possible use of evidence obtained by torture. The Convention imposed a “fundamental, unconditional and non-derogable prohibition” against torture. A “high degree of assurance” was required in relation to proceedings in a foreign state before a person could lawfully be deported to face a trial that might involve evidence obtained by torture. Once there was “a very real risk” of evidence in breach of a fundamental prohibition of the Convention being adduced, it was necessary for SIAC to satisfy itself that there could be excluded the further risk that such evidence would be acted upon by the Jordanian court (paragraphs 48 to 51).

Issues in relation to Mr Othman

61.  The issue raised before your Lordships by the Secretary of State’s appeal is whether SIAC’s conclusion in relation to Article 6 was correct. Mr Othman has, however, raised by cross-appeal a number of further issues, namely:

(i) Would Mr Othman’s deportation to face a trial by a military court lacking institutional independence constitute a “flagrant denial of justice” so as to be prohibited by article 6?

(ii) Would Mr Othman’s deportation in the face of a power to detain him for 50 days incommunicado and without access to a lawyer constitute a “flagrant denial of the right to liberty” so as to be prohibited by article 5?

(iii) Can individual assurances of a receiving state be relied upon where there is a pattern of human rights violations in the receiving state?

(iv) Is it permissible for SIAC to rely on closed material when considering the issue of ‘safety on return'?

(v) Has article 1F(c) of the Refugee Convention any application to acts of a person after he has been granted refugee status?

The third and fourth issues are common to both appeals. There is a fifth common issue, raised by the appellants in the first appeal and by submissions advanced by Justice and Human Rights Watch in relation to both appeals. This is whether compatibility with the Convention is itself a question of law, so that on each appeal the Court of Appeal had an unrestricted jurisdiction to review the conclusion on that question reached by SIAC. I propose to consider the common issues before turning to the additional issues that arise in Mr Othman’s case. It is logical to begin by addressing the jurisdiction issue.

The common issues

The jurisdiction of the Court of Appeal

62.  The right to appeal to the Court of Appeal from a final determination of an appeal made by SIAC is stated by section 7 of the 1997 Act to be “on any question of law material to that determination". SIAC’s determination involved the following stages. (1) SIAC had to direct themselves as to the appropriate test for a breach of the relevant article. (2) SIAC had to determine the relevant primary facts. (3) SIAC had to determine whether those facts satisfied the appropriate test. There is no doubt but that the first stage involved a question of law. It is common ground that the second stage involved questions of fact against which there is no right of appeal. The dispute relates to the third stage. The appellants contend that the third stage involved determining a question of law. The Secretary of State contends that the relevant question was one of fact.

63.  The following arguments were advanced by Mr Drabble QC and Mr Singh QC on behalf of the appellants and Mr Pannick QC, on behalf of the interveners Justice and Human Rights Watch. A broad approach must be adopted to the definition of what amounts to a ‘question of law’ in order to give effect to both the object and the express requirements of the Human Rights Act 1998. The object of the Act was to ‘bring human rights home'; to ensure that human rights issues were determined within this jurisdiction rather than by the ECtHR in Strasbourg. In order to achieve this object the Court of Appeal must adopt the same approach to human rights issues as the Strasbourg Court. This obligation is also imposed by section 6(1) of the Act, which provides that “it is unlawful for a public authority to act in a way which is incompatible with a Convention right". The Court of Appeal is a public authority and thus has a statutory duty, when considering the proposals to deport the appellants, to ensure that their deportation does not involve any infringement of Convention rights. The judgment of the ECtHR in Saadi v Italy (application 37201/06) delivered on 28 February 2008 lays down the appropriate approach:

“In determining whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with Article 3, the Court will take as its basis all the material placed before it or, if necessary, material obtained proprio motu….In cases such as the present the Court’s examination of the existence of a real risk must necessarily be a rigorous one.”

Your Lordships were referred to a number of authorities in support of this submission.

64.  Neither the Convention nor the Human Rights Act requires the Court of Appeal to adopt the approach suggested. The requirement of the Convention is the same as that where a breach of the Convention has occurred, namely “an effective remedy before a national authority” - see article 13. This was made plain by the ECtHR in Chahal, which had this to say about the requirements of article 13 in the present context:

“151. In such cases, given the irreversible nature of the harm that might occur if the risk of ill-treatment materialised and the importance the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires independent scrutiny of the claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3. This scrutiny must be carried out without regard to what the person may have done to warrant expulsion or to any perceived threat to the national security of the expelling State.

152. Such scrutiny need not be provided by a judicial authority but, if it is not, the powers and guarantees which it affords are relevant in determining whether the remedy before it is effective.”

65.  Thus the scrutiny that is required by the national authority does not have to be done by a court. Even less does it have to be subject to an appeal to a court. The United Kingdom has gone further to protect those facing deportation than the Convention requires. In SIAC it has instituted a specialist tribunal that by its composition is peculiarly well equipped to resolve the issues of fact that arise in the context of immigration decisions that involve issues of security and to apply the relevant law to the facts found. In addition a right to the Court of Appeal has been granted in relation to questions of law.

66.   By restricting appeals to questions of law Parliament has deliberately circumscribed the review of SIAC’s decisions that the Court of Appeal is permitted to undertake, so that it falls well short of the review that will be carried out if the case reaches the ECtHR, as described in Saadi. There is good reason for this. The length of SIAC’s decision in Othman’s case, and the time that it took to deliver, evidences the size of the task that a rigorous scrutiny of the material facts in a case such as this can involve. It makes sense to reserve such a task to a specialist tribunal without providing for a full merits review by an appellate court. That does, of course, mean that decisions of SIAC may be reversed at Strasbourg, either because the ECtHR makes a different assessment of the relevant facts or because additional relevant facts have come to that court’s attention. This is a possibility that Parliament has chosen to accept.

67.  The submission that section 6(1) of the Human Rights Act imposes a positive duty on the Court of Appeal to carry out a full review of SIAC’s decision in order to ensure that there is no breach of Convention rights is unsound. The Court of Appeal is a creature of statute and its powers are those conferred by statute. Section 6(1) cannot be so interpreted as to require public authorities to act beyond their powers. Were there any doubt as to this it would be resolved by section 6(2).

68.  This part of the appellants’ case was founded in part on the following observations of Lord Bingham of Cornhill in Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167:

“In the Human Rights Act 1998 Parliament not only enabled but required the Convention rights set out in Schedule 1 to the Act (including article 8) to be given effect as a matter of domestic law in this country. It did so (section 2) by requiring courts or tribunals determining a question which had arisen in connection with a Convention right to take into account any relevant Strasbourg jurisprudence, by requiring legislation, where possible, to be read compatibly with Convention rights (section 3) and, most importantly, by declaring it unlawful (section 6) for a public authority to act in a way incompatible with a Convention right. Thus immigration officers, the appellate immigration authority and the courts, as public authorities (section 6(3)), act unlawfully if they do not (save in specified circumstances) act compatibly with a person’s Convention right under article 8. The object is to ensure that public authorities should act to avert or rectify any violation of a Convention right, with the result that such rights would be effectively protected at home, thus (it was hoped) obviating or reducing the need for recourse to Strasbourg.”

69.  The appellants make far too much of these general observations. More pertinent is a subsequent passage in the speech of Lord Bingham where he draws a distinction between the role of the appellate immigration authority, which can be likened to the role of SIAC, and the role of a reviewing body:

“These provisions, read purposively and in context, make it plain that the task of the appellate immigration authority, on an appeal on a Convention ground against a decision of the primary official decision-maker refusing leave to enter or remain in this country, is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful. It is not a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected himself or acted irrationally or was guilty of procedural impropriety. The appellate immigration authority must decide for itself whether the impugned decision is lawful and, if not, but only if not, reverse it.”

The role of the Court of Appeal is, expressly, a secondary, reviewing, function limited by statute to questions of law.

70.  The appellants sought to draw a parallel between assessing whether, on the facts, there is a real risk of a flagrant breach of a Convention right and applying a test of proportionality. As to the latter, Lord Bingham in A v Secretary of State for the Home Department [2005] 2 AC 68 had to determine whether the Court of Appeal could properly review, as a question of law, the conclusion reached by SIAC on the proportionality of the Derogation Order that permitted the detention of alien terrorist suspects. He remarked that the Court of Appeal had treated SIAC’s decision as involving findings of fact and commented:

“The European Court does not approach questions of proportionality as questions of pure fact: see, for example, Smith and Grady v United Kingdom 29 EHRR 493. Nor should domestic courts do so. The greater intensity of review now required in determining questions of proportionality, and the duty of the courts to protect Convention rights, would in my view be emasculated if a judgment at first instance on such a question were conclusively to preclude any further review.”

71.  Lord Bingham went on to hold that SIAC had erred in law. The reasons for this holding were, however, that “the reasons given by SIAC do not warrant its conclusion…I do not consider SIAC’s conclusion as one to which it could properly come” (para 44). Lord Bingham was reviewing not the weight that SIAC had given to primary facts, but the rationality of their conclusions. The Secretary of State has rightly not challenged the proposition that the question of whether SIAC’s conclusions were irrational is open to review as involving a question of law.

72.  The appellants further submitted that a principle advanced by Lord Bridge of Harwich in relation to the risk to life in R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514 at p 531 was equally applicable to a risk of violation of article 3:

“the resolution of any issue of fact and the exercise of any discretion in relation to an application for asylum as a refugee lie exclusively within the jurisdiction of the Secretary of State subject only to the court’s power of review. The limitations on the scope of that power are well known and need not be restated here. Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.”

Lord Bridge went on to hold, however, at p 532, that it was for the Secretary of State to decide as a matter of degree whether the danger posed to an asylum seeker, if returned, was sufficiently substantial to involve a potential breach of Article 33 of the Refugee Convention. Provided that he had asked himself that question and answered it negatively in the light of all the relevant evidence, the court could not interfere. That statement was made in the context of judicial review in a case that predated the Human Rights Act. It does, however, underline the fact that the assessment of whether a danger is sufficient to involve an infringement of a Convention right, albeit that the Convention was there the Refugee Convention, is a question of fact.

73.  The significance of this conclusion in the context of these appeals is considerable. The Court of Appeal had no general power to review SIAC’s conclusions that the facts that they had found did not amount to a real risk of a flagrant breach of the relevant Convention rights. SIAC’s conclusions could only be attacked on the ground that they failed to pay due regard to some rule of law, had regard to irrelevant matters, failed to have regard to relevant matters, or were otherwise irrational. Their decisions could also be attacked on the ground that their procedures had failed to meet requirements imposed by law. Such an attack raises the next issue that is common to both appeals.

The use of closed material

74.  In this part of my judgment I shall refer to the ‘use of closed material’ as shorthand for the procedure by which SIAC hears evidence and submissions in closed session in which the interests of the deportee are represented by a special advocate. In Secretary of State for the Home Department v MB and AF [2007] UKHL 46; [2008] 1 AC 440 (see paras 26 and 27) two men who were subject to control orders attacked the use by the court of closed material in the hearings in which those orders were confirmed. The closed material had been used pursuant to rules of court introduced pursuant to the Schedule to the Prevention of Terrorism Act 2005 which provided by paragraph 4(2)(a) that such rules might

“make provision enabling control order proceedings or relevant appeal proceedings to take place without full particulars of the reasons for decisions to which the proceedings relate being given to a relevant party to the proceedings or his legal representative (if he has one)…”

Your Lordships’ House held, by a majority, that the proceedings were subject to the civil limb of article 6(1) of the Convention and that there were circumstances where the application of this provision and the rules made pursuant to it would not satisfy the requirements of that article. Accordingly it was necessary to ‘read down’ the provision and the rules by adding to them the qualification “except where to do so would be incompatible with the right of the controlled person to a fair trial".

75.  Where an appeal against deportation is made to SIAC closed material may be considered in relation to a number of different issues. There may be an issue as to whether bail should be granted. There may be an issue as to whether the decision to deport can properly be justified on the ground of national security. There may be an issue as to safety on return. These issues engage different articles of the Convention which may carry with them differing requirements as to procedural fairness. No issue arises on these appeals in relation to refusal of bail. Counsel for RB and U briefly sought before your Lordships to challenge the use of closed material in relation to the issue of whether there was good reason to deport each appellant on grounds of national security. No such challenge was made before SIAC or before the Court of Appeal. The challenge raises discrete issues, in respect of which your Lordships heard no argument. Not least of these is the implication of the fact that a decision to deport an alien does not, of itself, engage the Convention. In the case of U the challenge would also involve consideration of the facts of his case. Again no relevant submissions were made in respect of these. For these reasons I do not consider that your Lordships ought to entertain this challenge.

76.  The challenge to the use of closed material that has properly been developed before your Lordships has related to the use of such material in relation to the issue of safety on return. It was submitted that the rule-making power conferred by section 5 of the 1997 Act authorised rules that permitted the use of closed material in the interests of national security but not in the wider public interest. Disclosure of evidence relating to safety on return would not be likely to affect national security. Rule 4 of the 2003 Rules, which had been relied upon to justify the admission of closed material in relation to safety on return, was ultra vires. A number of points were made in support of this submission. The first two were narrow points of statutory interpretation. First it was urged that the SIAC procedure was devised specifically to address the problem of sensitive material that related to national security. Secondly it was submitted that Parliament had been given an assurance that closed material would not be used save where this was necessary for national security. The final point ranged more widely. It was that, where article 3 was involved, the use of closed material was unfair, contrary to the principle of legality and incompatible with the Convention. Accordingly section 5 of the 1997 Act should be given a restrictive interpretation or ‘read down’ so as to preclude making a rule in the terms of Rule 4.

Is Rule 4 Ultra Vires?

77.  The first point made on behalf of the appellants was founded on the decision of the ECtHR in Chahal, for it is common ground that the 1997 Act was a response to that decision. Mr Chahal had two different complaints. One was that he was detained pending deportation on grounds of national security and that he had no effective means of challenging this that complied with article 5(4) because material relating to national security was not disclosed to him. The other was that he was being deported in circumstances where he would be likely to suffer torture and had no effective means of challenging that either.

78.  As to the complaint in relation to article 5, the ECtHR held that, while the United Kingdom was under no obligation to justify its decision to expel Chahal, it could not lawfully detain him with a view to deportation, rather than grant him bail, without good reason. Where, as in his case, the United Kingdom sought to justify his detention on grounds of national security, article 5(4) required that he should be able to challenge his detention before a court. In relation to such proceedings the ECtHR said this:

“The Court recognises that the use of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved. The Court attaches significance to the fact that, as the intervenors pointed out in connection with Article 13, in Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice.”

79.  So far as concerns Chahal’s complaint in relation to article 3, I have already referred to the nature of the proceedings that the ECtHR stated would satisfy article 13. Significantly, the ECtHR commented: “The requirement of a remedy which is ‘as effective as can be’ is not appropriate in respect of a complaint that a person’s deportation will expose him or her to a real risk of treatment in breach of Article 3, where the issues concerning national security are immaterial.”

80.   It thus seems clear that the ECtHR did not, in Chahal, envisage that there might be a need to cater for sensitive material in relation to the question of whether someone would, if deported, be exposed to treatment that would infringe article 3. The promoters of the 1997 Act in response to Chahal appear to have envisaged that closed material would only be used where national security required this. In the course of the third reading of the Bill in the House of Commons, Mr O'Brien MP. junior Home Office minister said, in answer to a question from Mr Humfrey Malins :

“The Hon. Gentleman asked for an assurance that matters not involving national security would not be heard in camera. I am sorry about the double negative there, but I give him that assurance. It is envisaged that matters would be heard in camera only when there is a need for secrecy for reasons of national security. Other matters would not be heard in camera.”

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