BB, PP, W, U and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Maurice Kay,Lady Justice Rafferty,Lord Justice Aikens |
| Judgment Date | 23 January 2015 |
| Neutral Citation | [2015] EWCA Civ 9 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: T2/2013/0503, 0504, 0506 & 0513 |
| Date | 23 January 2015 |
[2015] EWCA Civ 9
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION
APPEALS COMMISSION
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Aikens Lady Justice Rafferty, DBE and Sir Maurice Kay
Case No: T2/2013/0503, 0504, 0506 & 0513
Dinah Rose QC, Stephanie HarrisonQC, Amanda Weston, Anthony Vaughan, Charlotte Kilroy
Instructed by Birnberg Peirce & Partners for U, YandZ
Instructed by Fountain Solicitors for PP
Instructed by The Public Law Project for BBandW
Robin Tam, Robert PalmerandCaroline Stone (instructed by The Treasury Solicitor) for the The Secretary of State
Hearing dates:28 and 29 July, 2014
The appellants are Algerian nationals who have been found by the Special Immigration Appeals Commission (SIAC) to constitute a threat to the national security of the United Kingdom. For some years, successive Home Secretaries have been endeavouring to deport them to Algeria. This has given rise to protracted litigation. Although appeals to SIAC have failed on the ground that deportation to Algeria would not infringe the human rights of the appellants because of assurances given by the Algerian government about safety and treatment on return, the appellants have had some success in appeals against the decisions of SIAC. Briefly, SIAC dismissed the original appeals in a series of decisions between September 2006 and May 2007. Y, U and BB appealed successfully to the Court of Appeal which remitted their cases to SIAC: MT (Algeria) v Secretary of State for the Home Department [2007] EWCA Civ. 808– MT in that appeal is the same person as Y in the present appeal. In November 2007, SIAC dismissed the remitted appeals. At the same time, U and BB appealed to the House of Lords on grounds which had been rejected by the Court of appeal. The House of Lords dismissed those appeals in RB (Algeria) v SSHD [2010] 2 AC 110 (RB is the same person as BB in the present appeal).
The decisions of SIAC in the remitted cases were again appealed to the Court of Appeal, where their appeals were consolidated with those of W, Z, G and PP (who were appealing initial adverse decisions of SIAC in their cases). The Court of Appeal dismissed all the appeals in W (Algeria) v SSHD [2010] EWCA Civ. 898. However, the appellants' further appeal to the Supreme Court succeeded in W (Algeria) v SSHD [2012] UKSC 8. The cases were remitted to SIAC for a second and third hearing. On 25 January 2013, SIAC again dismissed the appeals of all appellants except for G whose appeal was allowed on suicide risk and mental health grounds. His case is not before us.
On 25 January 2013, SIAC produced three judgments: an open judgment; a confidential judgment dealing with protected material to which both parties had access but the public did not; and a closed judgment of the kind familiar in SIAC cases. Permission for a further appeal to this Court was granted by Maurice Kay LJ and Sullivan LJ following an oral hearing on 15 January, 2014.
The issues at the heart of this appeal relate to the conditions in which the appellants would or would be reasonably likely to be held for up to twelve days on arrival in Algeria. The controversial period is known as garde à vue detention. It is now the subject of more specific evidence than was available at the previous SIAC hearings. The evidence includes the protected material to which I have referred.
These are essentially the grounds of appeal:
i) SIAC reached a legally unsustainable conclusion when holding that the treatment to which the appellants may be subjected would not violate Article 3 of the European Convention on Human Rights and Fundamental Freedoms (ECHR);
ii) SIAC erred in law by finding that there are adequate safeguards to enable verification of observance by the Algerian authorities of the assurances which have been given by the Algerian government.
iii) SIAC erred in law in referring to the fact that DRS officers were present during discussions about the assurances and have subscribed to them, there being no open evidence to support such a conclusion.
I shall refer to these three grounds as (1) the Article 3 issue; (2) the verification issue; and (3) the closed evidence issue.
The evidence and the facts found by SIAC
Garde à vue detention is carried out at the Antar barracks by the DRS. During a period of up to twelve days detainees are interrogated. It is not disputed that the purpose is to obtain material which might be used in subsequent proceedings. At the end of the period, the detainee, unless released, is handed over to the civilian authorities. If they proceed to detain him, it is within a general custodial institution and in conditions of a kind which are not criticised in these proceedings. The open judgment of SIAC includes these findings:
"31….many…of the holding cells in the Antar barracks are primitive in the extreme. Most people would find the experience of being confined in such conditions disorientating and alarming. They are hardly the conditions in which a detained man can prepare himself to deal adequately with interrogation."
This passage came at the end of a summary of the evidence of a British citizen known as AB and his wife which SIAC accepted as "true, without reservation".
AB (who is deaf) and his wife had travelled to Algeria in May 2012 for the wholly innocent purpose of attending a wedding. SIAC referred to aspects of this evidence in these passages:
"27…AB was detained by the DRS and taken to the Antar barracks. There he was required to change into prison uniform and put into an unlit cell of which the door was locked. The cell was damp and dusty. There was no bed. He suffered an asthma attack but, despite his requests, medical assistance did not arrive until the following morning. He was then seen by a doctor and later given an inhaler and other medication. He was also transferred to another cell with an open door. He was allowed to go to the lavatory under escort, but not permitted to shower. He was allowed to pray, but mocked when doing so. He was well fed.
28. AB was questioned by a number of men who simply referred to themselves by name: 'the boss' or 'major'. He was questioned about Pakistan and Afghanistan and terrorist attacks in Mumbai. Questions were in French or Arabic and by gesture. On Sunday morning – after three nights in detention – his wife was summoned. AB was allowed to wear his own clothes and she was told to come back on Monday morning, when he would be released. She did so. On her return, she translated questions by sign language for AB, who is deaf, on the same topics as those about which he had been questioned before. He was then required to sign a document in Arabic, which he could not read. It was explained that there had been a misunderstanding and an apology was made to him. He was taken to a hotel and the price paid."
I infer that the Algerian authorities had realised that they had committed a mistake of identity.
The accepted evidence of AB and his wife or from other sources also included these features:
i) incommunicado detention for up to twelve days, without access to a lawyer or any visits (apart from a single fifteen minute telephone call to family);
ii) the requirement to wear prison uniform which AB found humiliating and discriminatory;
iii) captors not telling AB that he was under arrest and not disclosing their real names, giving rise to feeling of fear and inferiority;
iv) solitary confinement;
v) Detention in a dark cell, with no light — AB's words, "when they locked me in there I didn't know what was happening or where I was. It was a horrifying feeling to be in that place not knowing if it was night or day."
vi) cell infested with mosquitoes – AB's wife noticed that he was "bitten all over with mosquito bites".
vii) no bed or mattress in the cell. AB had to sleep on a concrete floor with only a blanket on two cloths.
viii) AB was unable to sleep at all because of the conditions;
ix) there was no furniture in the cell.
x) there were no toilet facilities, not even a bucket, in the cell.
xi) the cell was "filthy …very dusty and damp".
xii) AB experienced breathing difficulties, including AB's asthma attack.
xiii) lack of, or very tardy medical attention.
xiv) AB's hearing aid was removed, causing sensory deprivation and feelings of fear and insecurity;
xv) AB was not permitted to shave for the duration of his detention, notwithstanding the heat, the filthy conditions of the cell, the lack of a bed or adequate toilet facilities;
xvi) mockery and humiliation by the guards, including being "heavily mocked" while praying;
xvii) intimidating and intensive repeated interrogation by groups of men;
xviii) pressure to sign documents, including documents AB did not understand: "It was made clear to me that if I didn't sign the document that they asked me to sign that I would not be released. I feared the consequences of not signing the documents. I did not want to sign them because I did not understand them but I had no choice and anyway by that stage I would have done anything".
To put all this into context, the Home Secretary's witness, Mr Anthony Layden, accepted that the purpose of DRS detention is the interrogation of suspects with specific purposes including the extraction of confessions (true or false). He also agreed that some of the treatment of AB had been "degrading", although, of course, the question whether it, or any treatment, amounts to a violation of Article 3 is for judicial determination.
The conclusion of SIAC on Article 3
To continue reading
Request your trial
-
Y.Y. v the Minister for Justice and Equality No. 9
...no. 43611/11, European Court of Human Rights, 16th January, 2014) (xv) B.B. and Others v. Secretary of State for the Home Department [2015] EWCA Civ 9 (xvi) J.K. v. Sweden (Application No. 59166/12, European Court of Human Rights, 23rd August, 2016) (xvii) X. v. Switzerland (Application no......
-
Metodi Kirchanov and Others v District Prosecutor's Office, Blagoevgrad, Bulgaria and Others
...EWHC 2786 (Admin.) in the following terms at paragraph 52: “52 We accept that the factors which Mitting J identified in BB v. Secretary of State for the Home Department, SC/39/2005, and approved by the Court of Appeal, are those for evaluating the assurance in this case. Mitting J said: “Wi......
-
Metodi Kirchanov and Others v District Prosecutor's Office, Blagoevgrad, Bulgaria and Others
...EWHC 2786 (Admin.) in the following terms at paragraph 52: “52 We accept that the factors which Mitting J identified in BB v. Secretary of State for the Home Department, SC/39/2005, and approved by the Court of Appeal, are those for evaluating the assurance in this case. Mitting J said: “Wi......
-
The Court in Mures (1st Appellants) v The Bistrita-nasaud Tribunal, Romania (1st Respondent)
...these submissions, Mr Emmerson began with cases from the Special Immigration Appeals Commission ("SIAC"), notably BB v. Secretary of State for the Home Department [2015] EWCA Civ 9. There the Court of Appeal held that SIAC had misdirected itself in considering appeals by Algerian nationals ......
-
Refoulement
...the Home Department , SC/84/2009 (SIAC) at paras 25Ǻ27; see, also, BB, PP, W, U & Ors v Secretary of State for the Home Department , [2015] EWCA Civ 9 at paras 27Ǻ42; see, also, Sarah Singer, ȀǽUndesirable and UnreturnableǾ in the United Kingdomȁ (2017) 36:1 Refugee Survey Quarterly 9 at 14......
-
Table of Cases
...BB, PP, W, U & Ors v Secretary of State for the Home Department, [2015] EWCA Civ 9 .................................................................................688 Batayav v Secretary of State for the Home Department, [2003] EWCA Civ 1489 ......................................................