Deportation of Suspected Terrorists with ‘Real Risk’ of Torture: The House of Lords Decision in Abu Qatada1

Published date01 July 2010
DOIhttp://doi.org/10.1111/j.1468-2230.2010.00811.x
Date01 July 2010
CASES
Deportation of Suspected Terrorists with‘Real Risk’ of
Torture:The House of Lords Decision in Abu Qatada
1
Matthew Garrod
n
This note discusse s the House of Lords’ decision i n RB (Algeria)(FC) and anothervSecretaryof State
forthe Home Department;OO (Jordan) vSecretaryof State for the HomeDepartment that the real risk of
third-party foreign torture evidence does not meet the required standard of unfairness so as to
prevent the deportation of suspected terrorists u nder Article 6 ECHR. It considers three key
issues that were raised byth is case:Parliament has deliberately restricted the right of appeal from
SIACto the Court of Appeal on questions of fact; the procedureof usi ngclosed material by SIAC
in the assessment of safety on return is unequivocally permitted by statute; and the conclusions by
SIAC thatdiplomatic assurances contained in Memoranda of Understanding do not giveri se to
points of law and, therefore, are beyond review by the appellate courts.
INTRODUCTION
Suspected of terrorism, Abu Qatada resisted deportation at the Court of Appeal
on the single ground that the Special Immigration Appeals Commission (SIAC)
erred in lawby concluding that the‘very real risk’ of being convicted at retrial in
Jordanon the basis of tortureevidence procured byJordanian o⁄cials(third-party
foreign torture evidence) did not constitute ‘a £agrant denial of the right to fair
trial’required by Article 6 ECHR.
2
In RB (Algeria) (FC) and another vSecretary of
State for the Home Department;OO (Jordan) vSecretaryof State for the Home Department,
the House of Lords, for the ¢rst time, had to consider whether the required stan-
dard of unfairness had indeed been meti norder to prevent Qatadas deportation.
3
Accordingly, Lord Phillips observed that ‘by invoking Articles 5 and 6, Qatada
invites the House to break further new ground’.
4
Ultimately the House refused
to do so but itwas the complex broader issues that make this case signi¢cant.This
note concerns three common issues that are relevant to all three of the appeals in
the present case: Parliament has deliberately restricted the right of appeal from
n
Research Associate, Sussex Law School, University of Sussex, Brighton, England. I am grateful to
Professor J. Craig Barker for encouraging me to undertake this note and for the comments of the
anonymous reviewer. Any errors are the responsibility of the author.
1RB (Algeria) (FC) and another vSecretaryof State for the Home Department; OO (Jordan)vSecretaryof
State forthe Home Department[2009] UKHL 10.
2Othman (Jordan) vSecretary of State for the HomeDepartment [2008] EWCA Civ 290. Third-party
foreign torture evidence refers to torture in£icted by Jordanian authorities without the compli-
city of British authorities against third-parties in order to procure confessions and incriminating
statements.
3n1 above.The proceedings concerned three conjoined appeals that shared common issues and for
convenience the House delivereda si ngle judgment. Abu Qatadais ide nti¢ed bythe name ‘OO’.
The other two appellants also suspected of terrorism are identi¢ed as ‘RB’a nd‘U’ and are both of
Algerian nationality.
4ibid at [8].
r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2010)73(4) 631^655
SIAC to the Court of Appeal on questions of fact; the procedure of using closed
materialby SIAC in the assessment of safety on return is unequivocallypermitted
by statute; and the conclusions by SIAC on assurances contained in Memoranda
of Understanding (MOU) do not give rise to points of law and, therefore, are
beyond review by the appellate courts.
DEPORTATION OF TERRORISM SUSPECTS
The facts of the present case are complex and may be described as ‘typical’o fcase s
that have emerged since 2001 concerning the problem’ of foreign nationals sus-
pected of international terrorism who are liableto deportation but whocannot be
removed from the UK because of Article 3 ECH R.
5
Qatada claimed asylum
upon arrival in the UK in 1993 and was granted refugee status in 1994 on the
ground that he had been subjected to torture by Jordanian authorities.
6
In 1999
and 2000 he was convicted in absentia by the Jordanian State Security Court, a
military court, for participation in terrorist conspiracies to cause explosions in
Jordan and was sentenced to life imprisonment and ¢fteen years imprisonment
respectively. At bothtrials incriminating statementswere admitted againstQatada
to the State Prosecutor by co-defendants. The co-defendants unsuccessfully
sought to have these statements excluded on the basis that they had bee n obtained
by torture. Following the terrorist attacks on 11 September 2001, Qatada was
excluded from the Refugee Convention
7
and the Home Secretary certi¢ed his
presence in the UK as not ‘conducive to the publ ic good’ on the ground of
national security and issued a notice of intention to deport.
8
Deportation back to
Jordan, however, was not possible because of the real risk’ of ill-treatment con-
trary to Article 3 ECHR.
9
In 2002 Qatada, along with16 other foreign nationals
suspected of terrorism, was certi¢ed and detained inde¢nitely by the Secretary of
State pursuant to Part 4 of the Anti-Terrorism, Crime and Security Act 2001.
After an unsuccessful appeal by Qatada before SIAC challenging Part 4, in
December 2004 the House of Lords in A(FC)andothers;X(FC)andothersvSecre-
tary of State for the Home Department (B elmarsh) granted a declaration that the inde-
5Article 3 ECHRwas incorporated into UK law by virtue of the 1998 Human Rights Act and
provides that: ‘[n]o one shall be subject to torture or to inhuman or degrading treatment or
punishment.
6United NationsConvention on the Status of Refugees1951,art 33(1), provides that:‘No contract-
ing state shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on account of his race, religion, nation-
ality,membership of a social group or political opinion.
7Article 33(2)provides that:‘the bene¢t of the present provision may not...beclaimedby a refu-
gee whomthere are reasonable grounds for regardingas a danger to the security of the country in
which he is, or who, having been convicted by a ¢nal judgment of a particularly serious crime,
constitutes a danger to the community of that country.
9The Grand Chamber of the ECtHR has held Article 3 ECHRto be non-derogable and broader
than the Refugee Convention in that individuals cannot be returned to their country of origin
even if they represent a danger to national security, Chahal vUnit ed Kingdom Ap p No 22414/93,
judgment of 15 November 1996;Sa adi vItalyApp No 37201/06,judgment of 28 February 20 08.
For commentary on Chahal and Saadi and Article 3 ECHR, s ee J. C. Barker and M. Garrod,
‘Security or Responsibility: The UK Borders Act 20 07 and the Automatic Deportation of For-
eign Prisoners’ (2007/08) 9 Contemporary Issues in Law 93,99.
Deportation of Suspected Terrorists with ‘Real Risk’ of Torture
632 r2010The Author.Journal Compilation r2010 The Modern LawReview Limited.
(2010) 73(4) 631 ^655

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