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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163.  Section 6 enables the Attorney-General to appoint “a person to represent the interests of an appellant in any proceedings” before SIAC and the Lord Chancellor may under section 5(3)(c) make rules about the functions of such person, who is referred to in the rules as a “special advocate".

164.  Rule 4, under the heading “General duty of Commission", makes its priorities clear:

“4. -(1) When exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.

(2) Where these Rules require information not to be disclosed contrary to the public interest, that requirement is to be interpreted in accordance with paragraph (1).

(3) Subject to paragraphs (1) and (2), the Commission must satisfy itself that the material available to it enables it properly to determine proceedings.”

165.  Rule 35 says that the functions of the special advocate are to cross-examine witnesses and make submissions to the Commission at any hearings from which the appellant and his representatives are excluded. If the Secretary of State wishes to object to disclosure to the appellant of any material upon which he proposes to rely (“closed material”) he must give notice to the special advocate (rule 37) and, after hearing submissions, the Commission must then decide whether disclosure would be contrary to the public interest and, if so, uphold the objection (rule 38). After being served with closed material the special advocate cannot communicate with the appellant except with the leave of the Commission (rule 36(2)) and the closed material is put before the tribunal in a private session from which the appellant and his advisers are excluded (rule 43).

166.  In all three cases SIAC relied to a greater or lesser extent upon closed material, both in relation to the question of whether the deportation was conducive to the public good (“the national security issue”) and the question of whether the alien was at risk of suffering torture or degrading or inhuman treatment (“the safety on return issue”). Indeed, in the case of RB the decision of SIAC on the national security issue was founded entirely on closed evidence (see paragraph 1 of the judgment of Mitting J of 5 December 2006).

167.  The arguments of the aliens against the use of closed material in their cases take two forms. First, it is submitted by RB and U that a decision based on closed material, whether as to national security or safety on return, may be inconsistent with their right to a fair hearing under article 6 of the Convention. Whether it is or not depends on the facts of the case. They say that their cases should therefore be remitted to SIAC to decide whether, in each case the use of the closed material denied them a fair hearing. Secondly, it is submitted for Abu Qatada that, as a matter of domestic law and on the true construction of the 1997 Act and the rules, SIAC may rely upon closed material only in relation to the national security issue and not on the safety on return issue.

Deportation and article 6

168.  The first argument is founded upon the recent decision of the House in Secretary of State for the Home Department v MB [2008] 1 AC 440. The question in that case was whether the procedure established by and under the Prevention of Terrorism Act 2005 for judicial supervision of non-derogating control orders complied with article 6. That procedure mirrors in all relevant respects the procedure followed by SIAC under its rules, including a provision in paragraph 4(3) of the Schedule requiring the applicable rules to ensure —

“(d) that the relevant court is required to give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest".

169.  The Court of Appeal ruled that in principle this procedure complied with article 6: see [2007] QB 415. That was the state of the law when the present cases came before SIAC. In the House of Lords, however, Baroness Hale of Richmond said that although a procedure modelled on that of SIAC would usually provide the “substantial measure of procedural justice” which the Chahal case required, there might be some cases in which it did not. To enable the courts in such cases to comply with article 6, paragraph 4(3)(d) of the Schedule should (pursuant to section 3 of the Human Rights Act 1998) be read subject to an exception in cases in which the use of closed material would be incompatible with the right to a fair trial. The best judge of whether the procedural protection had been adequate was the judge who presided at the hearing. Lord Carswell and Lord Brown of Eaton-under-Heywood agreed.

170.  In the present cases, SIAC was bound by the Court of Appeal decision and made no finding as to whether its procedure had enabled these aliens to obtain a fair trial. So the aliens submit that their cases should be remitted to SIAC for such a finding to be made.

171.  The difficulty for the aliens is that in Secretary of State for the Home Department v MB it was conceded by the Secretary of State that a control order affected civil rights and that article 6 was therefore engaged. The question of whether the order was lawful had therefore to be decided by an independent and impartial court and in accordance with a judicial procedure.

172.  No such concession is made here. On the contrary, the judgment of the ECHR Grand Chamber in Maaouia v France (5 October 2000) Application no 39652/98, 33 EHRR 1037 affirmed (in paragraph 35) that “the decision whether or not to authorise an alien to stay in a country of which he is not a national does not entail any determination of his civil rights". In a concurring opinion, Sir Nicolas Bratza agreed that —

“proceedings which exclusively concern decisions of administrative authorities to refuse leave to an alien to enter, to impose conditions on an alien’s leave to stay or to deport or expel an alien, do not involve the determination of the “civil rights and obligations” of the alien.”

173.  Likewise in Chahal v United Kingdom (1997) 23 EHRR 413, the ECHR decided that an alien who was detained pending deportation was entitled by virtue of article 5(4) to “a substantial measure of procedural justice” in proceedings to determine the lawfulness of his detention (paragraph 131) but not to a judicial tribunal “to review whether the underlying decision to expel could be justified under national or Convention law": paragraph 128.

174.  Faced with this obstacle, the aliens claim that issues about various other Convention rights which may arise incidentally in connection with the making of the deportation order (such as whether return to the country of nationality would infringe rights under articles 3, 5, 6 or 8) require the procedure for the determination of the validity of the deportation order to conform to the requirements of article 6. In particular, they rely upon the alien’s right under article 3, as interpreted in Chahal, not to be deported to a country where he will be at risk of being subjected to torture. The question of whether article 3 would be infringed should, they say, be determined by a procedure which satisfies article 6.

175.  The weakness in this argument, as SIAC pointed out in its ruling in OO v Secretary of State for the Home Department (27 June 2008), is that the ECHR has consistently said not only that proceedings concerning the validity of a deportation order do not engage article 6 but that it makes no difference that the order for deportation has an incidental effect upon rights under other articles of the Convention. Even in cases based upon detention pending deportation, where the power of detention is wholly ancillary to the power of deportation and the requirements of article 5(4) are pretty much indistinguishable from those of article 6 (both require the decision to be made by a court, with appropriate procedures), the ECHR has been punctilious in insisting that article 6 is not engaged: see for examples CG v Bulgaria (13 March 2007) Application no 1365/07 and Mamatkulov and Askarov v Turkey (2005) 41 EHRR 25, paragraphs 81-83. In the Chahal case and Al-Nashif v Bulgaria (2002) 36 EHRR 655, claims under article 5(4) succeeded but complaints under article 6 were either not mentioned or held inadmissible. It is clear that the criterion for the ECHR in deciding whether article 6 is engaged is the nature of the proceedings and not the articles of the Convention which are alleged to be violated. If the proceedings concern deportation, article 6 is not engaged, whatever might be the other articles potentially infringed by removal to another country.

176.  The requirements of article 5(4) are, as I have said, little different from those of article 6. The legality of detention must be determined by a court and must be accompanied by appropriate judicial procedures. In this case, however, the aliens are on bail and no question about the legality of their detention arises. That leaves only their complaints that deportation would infringe their rights under articles 3, 5 and 6 by virtue of the risks of torture, detention and an unfair trial in the receiving country and that it would cause damage to their reputations, contrary to article 8. In respect of these rights, the aliens are entitled under article 13 to an “effective remedy".

177.  In Chahal, however, the ECHR made it clear that the determination of whether a deportation order might infringe article 3 does not require the full judicial panoply of article 6 or even 5(4). An “effective remedy” to protect one’s rights under article 3 need not be a judicial remedy compliant with article 6. What is required, said the Court in Chahal, is “independent scrutiny of the claim” (paragraph 151), not necessarily by a judicial authority. The only scrutiny available at that time in the United Kingdom was by the advisory panel, which the ECHR for various reasons considered inadequate. But its commendation of the Canadian system suggests that it would have had little difficulty in accepting the SIAC procedure as adequate. I therefore agree with the reasoning of Mitting J in OO v Secretary of State for the Home Department (27 June 2008) and his conclusion that the SIAC procedure satisfies the requirements of article 13 for determining whether deportation would infringe an alien’s rights under article 3.

178.  The same is a fortiori true of the claims of a potential violation of articles 5, 6 and 8. It was suggested that the effect of the Human Rights Act 1998 (giving a domestic civil remedy for violations of Convention rights) was to convert all claims of infringement of Convention rights into civil rights within the meaning of article 6. If the proceedings had been an action in tort for a breach or threatened breach of article 3, they would certainly be asserting a civil right and article 6 would be engaged: compare Tomasi v France (1993) 15 EHRR 1 at paragraphs 120-122. Similarly for actions for violations of article 8. But these proceedings are not of that nature. They are to challenge the validity of deportation orders. As I have said, it is the nature of the proceedings which decides whether article 6 is engaged or not.

179.  Finally on this topic it is submitted that application of a different procedure in deportation proceedings from that which Secretary of State for the Home Department v MB [2008] 1 AC 440 held to be required in challenges to control orders was discriminatory, contrary to article 14. It is said to be discriminatory because only aliens may be deported. It is hard to take this submission seriously. Deportation orders are different from control orders and it is in the nature of deportation is that it applies only to aliens. The ECHR is likely to have been aware of this when it decided in Maaouia v France (5 October 2000) Application no 39652/98 that deportation proceedings did not engage article 6.

Closed material in domestic law

180.  I can deal fairly shortly with the alternative argument that as a matter of domestic law, SIAC may rely upon closed materials only when it decides the question of national security but not the question of safety on return. This argument is put forward on behalf of Abu Qatada, whose case on safety on return involved the use of closed materials.

181.  It seems to me clear that the statutory provisions about disclosure of materials are solely concerned with the ways in which disclosure may damage the public interest and not with the issue to which such evidence may be relevant. Thus section 5(6) of the 1997 Act says that in making procedural rules for SIAC the Lord Chancellor shall have regard in particular to “(b) the need to secure that information is not disclosed contrary to the public interest.” This is a perfectly general statement and I find it impossible to construe it as limited to cases in which some particular issue arises. Likewise, rule 4, which I have already quoted, elaborates on the meaning of “contrary to the public interest” but is entirely general in its application. Reference was made to the “presumption of legality” by which general statements in statutes are construed as having a narrower application than their literal meaning might suggest if this would produce an unjust result and in particular would override basic individual rights: see Stradling v Morgan (1560) 1 Pl 199; R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115. But this is in the end a rule of construction (which has now been largely superseded, in its application to human rights, by section 3 of the 1998 Act) and cannot displace what appears to me the plain and obvious meaning of the legislation.

Article 3: the risk of torture or inhuman or degrading treatment.

182.  Having disposed of the procedural objections, I can now come to the substantive grounds of challenge to the deportation orders. All three aliens say that there is a substantial risk that the authorities in the receiving country would subject them to torture or inhuman or degrading treatment, contrary to article 3. The Secretary of State admits that there is sufficient evidence of the use of torture in both Algeria and Jordan to suggest that in the absence of special arrangements, there would be such a risk. In both cases, however, Her Majesty’s Government has been given specific assurances at a high level that the aliens would be lawfully and properly treated. The aliens say that is not good enough; the assurances are not sufficiently specific and the authorities cannot be relied upon to honour them.

183.  In the case of RB, SIAC gave a decision on 5 December 2005 in which it examined the nature of the assurances given by the Algerian government, the ways in which non-compliance could be detected and the government’s incentives for complying with the assurances, and came to the conclusion that they removed any real risk that RB would be subjected to torture or other treatment contrary to article 3. On 14 May 2007 it reached a similar decision in relation to U. Mitting J was party to both decisions. On 26 February 2007 in the case of OO SIAC, this time presided over by Ouseley J, examined the assurances given by the Jordanian government and concluded that they could be relied upon.

184.  The Court of Appeal dismissed appeals against these findings on the ground that an appeal from SIAC lay only on a question of law (see section 7(1) of the 1997 Act). The question which Chahal required to be answered, namely, whether there was a “real risk” that the deportee would be subjected to torture or treatment contrary to article 3, was a question of fact.

185.  There is in my opinion nothing in the subsequent jurisprudence of the ECHR to change the question or to convert it into a question of law. In Saadi v Italy (28 February 2008) Application no 37201/06 the question was whether the applicant could be deported from Italy to Tunisia, where he had been sentenced in his absence to twenty years imprisonment for membership of a terrorist organisation and incitement to terrorism. The Italian embassy in Tunis sent a note verbale to the Tunisian government asking for an assurance that “fears expressed by Mr Saadi of being subjected to torture and inhuman and degrading treatment on his return to Tunisia are unfounded.” The Tunisian Ministry of Foreign Affairs replied that Mr Saadi would be accepted into Tunisia “in strict conformity with the national legislation in force and under the sole safeguard of the relevant Tunisian statutes.” A subsequent note verbale confirmed that Tunisian law guaranteed and protected the rights of prisoners in Tunisia and that Tunisia had acceded to the relevant international treaties and conventions.

186.  As there was a good deal of evidence that the relevant Tunisian statutes, international treaties and conventions had not in the past inhibited extensive use of torture by the Tunisian authorities, it is not surprising that the ECHR found these assurances of limited value. The Court said (at paragraphs 147-148):

“147...[T]he Court observes that the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention.

148. Furthermore, it should be pointed out that even if, as they did not do in the present case, the Tunisian authorities had given the diplomatic assurances requested by Italy, that would not have absolved the Court from the obligation to examine whether such assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention…The weight to be given to assurances from the receiving State depends, in each case, on the circumstances obtaining at the material time.”

187.  My Lords, nothing could be clearer than that last sentence. The question of whether assurances obviate the risk is a question of fact, to be decided in the light of all the evidence.

188.  It must be remembered that the ECHR itself is not a court of limited jurisdiction like the Court of Appeal under the 1997 Act. It is not a court of appeal from a national court at all. It decides whether, on its own assessment of the facts, there has been or would be a violation of a Convention right. Mr Drabble QC, who appeared for RB and U, said that if Saadi v Italy had been decided before the decisions of SIAC and it had “applied” that case, it would have come to a different conclusion. It seems to me, however, that SIAC fully applied the principle laid down in paragraph 148 of the Saadi case. It came to a different conclusion because the facts were different.

189.  Mr Drabble even went so far as to submit (as he had done to the Court of Appeal) that the question of whether a Convention right had been or would be violated was always a question of law, even when it involved what would ordinarily be a question of fact. The reasoning was that SIAC is a public body required by section 6(1) of the Human Rights Act 1998 to act in accordance with Convention rights and therefore if it gave a decision contrary to a Convention right it made an error of law. For my part, I cannot see how that conclusion follows. If the ECHR takes a different view of a case from that of the domestic court, it is just as likely to be because it takes a different view of the facts. Mr Drabble referred to the decision of the House in Huang v Secretary of State for the Home Department [2007] 2 AC 167, in which it was decided that section 6 of the 1998 Act required immigration officers, the appellate immigration authority and the courts, exercising jurisdiction under the Immigration and Asylum Act 1999, to decide whether a challenged decision was compatible with Convention rights or not. The appellate bodies were not exercising a reviewing function but had to decide the question for themselves. But the 1999 Act made no distinction between appeals on fact or law. It gave a general right of appeal against an immigration officer’s decision. The position of the Court of Appeal hearing an appeal from SIAC is quite different.

190.  There is nothing in the Convention which prevents the United Kingdom from according only a limited right of appeal, even if the issue involves a Convention right. There is no Convention obligation to have a right of appeal at all. If there is a right of appeal, then of course it must offer a fair hearing before an independent and impartial tribunal in accordance with article 6. But there is no obligation to provide an appeal against the determination of a Convention right. The only concern of the ECHR with the court structure of the Member State is that it should provide a remedy for breach of a Convention right in accordance with article 13. If a SIAC hearing does so, that is an end of the matter and the extent of the right of appeal, if any, is irrelevant.

191.  The findings of SIAC on safety on return are therefore open to challenge only if no reasonable tribunal could have reached such a conclusion on the evidence: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14. Mr Drabble submits that the Court of Appeal should for two reasons have allowed the appeal on this ground. The first is that the assurance from Algeria contained no express reference to standards of international law as to what counted as torture or inhuman or degrading treatment. The second is that the assurances made no provision for external monitoring of compliance.

192.  The arrangements with Algeria were negotiated at the highest level and it was plain to the Algerian authorities that what the United Kingdom required was an assurance which would enable it to comply with its obligations under article 3. On the other hand, the assurances had to be expressed in language which would respect the dignity of a sovereign state. In the cases of RB and U the assurance therefore said that they would enjoy “the following rights, assurances and guarantees as provided by the Constitution and the national laws currently in force concerning human rights…(h) His human dignity will be respected under all circumstances.” The main reason why SIAC thought that this assurance would satisfy article 3 was that it was not in the national interest of the Algerians to fail to comply. In those circumstances, the precise language of the assurance was less important than the effect which both sides knew it was intended to have. So far from being irrational, that seems to me an entirely reasonable conclusion which SIAC was entitled to draw from the basic facts it had found to exist about the situation in Algeria.

193.  As to external monitoring, a good deal has been written about its importance in enabling a court or other authority to be satisfied that the receiving state is complying with assurances about safety on return. There is no doubt that in the absence of some provision for external monitoring, such assurances may be no more than empty words: see for example Ryabikin v Russia (19 June 2008) Application no 8320/04 at paragraph 119. But there is no rule of law that external monitoring is required. It all depends upon the facts of the particular case and in my opinion SIAC was quite right to say (in paragraph 6 of its decision in RB’s case) that although fulfilment of the assurances must be capable of being verified, external monitoring is only one possible form of verification. In this particular case the Algerian government regarded external monitoring as inconsistent with its sovereign dignity but SIAC considered that there were other ways in which non-compliance was likely to become known and, given the political incentives, these were sufficiently likely to ensure compliance. This was a carefully balanced finding which I think was open to SIAC on the evidence.

194.  For these reasons I would dismiss the appeals of RB and U.

Article 6 and Abu Qatada

195.  The Court of Appeal allowed Abu Qatada’s appeal on the sole ground that there was a real risk that his rights under article 6 (fair trial) would be infringed if he were returned to Jordan. SIAC had rejected this submission, but the Court of Appeal said that it would not have done so if “it had properly understood the status in Convention law of this aspect of article 6.”

196.  There was little doubt that upon his return to Jordan, Abu Qatada would be put on trial for the crimes of which he had already been convicted in his absence. The question of whether he would receive a fair trial turned upon the question of whether the court was likely to admit the evidence of witnesses which had been obtained by torture. As to this, SIAC’s findings were (a) the court was likely to admit the evidence of the witnesses in question (paragraph 422) (b) it could not say that such evidence had been obtained by treatment in breach of article 3, although there was “a very real risk” that it had been (paragraph 437); (c) it could not say whether the treatment in breach of article 3 had amounted to torture, as opposed to other inhuman or degrading treatment (paragraph 411).

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