J1 v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Elias,Lord Justice Treacy |
| Judgment Date | 27 March 2013 |
| Neutral Citation | [2013] EWCA Civ 279 |
| Docket Number | Case No: T2/2011/2175, T2/2011/2175Y |
| Court | Court of Appeal (Civil Division) |
| Date | 27 March 2013 |
[2013] EWCA Civ 279
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
SC/98/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lord Justice Elias
and
Lord Justice Treacy
Case No: T2/2011/2175, T2/2011/2175Y
Mr Timothy Otty QC and Ms Stephanie Harrison (instructed by Birnberg Peirce & Partners) for the Appellant
Mr Angus McCullough QC and Ms Cathryn McGahey appeared as Special AdvocatesMr Robin TamQC and Ms Kate Grange (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 5th & 6th February 2013
This judgment is in eight parts, namely:
Part 1. Introduction,
Part 2. The facts,
Part 3. The present proceedings,
Part 4. The appeal to the Court of Appeal,
Part 5. To what extent can SIAC leave issues to be resolved by the Secretary of State at a future date?
Part 6. The first ground of appeal: ECHR Article 3,
Part 7. The second and third grounds of appeal,
Part 8. Conclusion.
This is an appeal against a decision of the Special Immigration Appeals Commission ("SIAC") upholding the Secretary of State's decision that the appellant should be deported to Ethiopia. The central issue is whether such deportation would constitute a breach of Article 3 of the European Convention on Human Rights ("ECHR"). The main question of law is whether SIAC was entitled to conclude that assurances given by the Ethiopian Government were a satisfactory safeguard, even though not all the arrangements for monitoring fulfilment of those assurances were in place.
By way of background I should say something about hostile organisations in Africa. The branch of Al Qaeda which operates in the Horn of Africa is known as Al Qaeda in East Africa. I shall refer to it as "AQEA". Another Islamist extremist organisation in Africa is known as Al Shabaab. Al Shabaab has declared the ambition of establishing a caliphate in the Horn of Africa. The Ethiopian Parliament has declared AQEA and Al Shabaab as terrorist organisations.
Ethiopia is a country with a poor record on human rights. There is only one organisation in Ethiopia which exists to monitor human rights. This is the Ethiopian Human Rights Commission ("EHRC"). The EHRC is subject to some political control and interference.
The two provisions of the ECHR which are relevant to this appeal are Articles 3 and 6. Article 3 provides;
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
Article 6 of the ECHR provides that everyone facing a criminal charge is entitled to a fair and public hearing within a reasonable time. The article then goes on to spell out the requirements of a fair trial.
As is well known SIAC sometimes has to receive evidence of matters which are confidential for reasons of national security or to protect other public interests. Such evidence is received in closed hearings, at which the individual concerned is represented by one or more special advocates.
In the present case there were both open and closed hearings. There were also two open and two closed judgments. I have read the closed judgments and the relevant parts of the closed evidence and submissions. In this judgment I shall only make reference to matters emerging from the open evidence and the open judgments. What I have read in the closed material does not undermine my conclusions. On the contrary, it reinforces those conclusions.
The rules governing proceedings before SIAC are the Special Immigration Appeals Commission (Procedure) Rules 2003, to which I shall refer as the "2003 Rules". Rule 4 of the 2003 Rules provides:
"(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. "
I shall refer to the Asylum and Immigration Tribunal as "the AIT". The AIT is the predecessor body of the Asylum and Immigration Chamber of the Upper Tribunal.
I shall refer to the Convention Relating to the Status of Refugees made at Geneva in 1951 as "the Refugee Convention". Article 1A of the Refugee Convention defines a refugee as:
"Any person who
…
(2) … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
Article 33 (1) of the Refugee Convention provides:
"No Contracting 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, nationality, membership of a particular social group or political opinion."
There have been some changes of counsel since the hearing before SIAC. In this court Mr Timothy Otty QC and Ms Stephanie Harrison represent the appellant. Mr Angus McCullough QC and Ms Cathryn McGahey appear as special advocates. The appellant's counsel are pursuing an appeal against the second open judgment on a number of grounds. The special advocates are pursuing an appeal in respect of the second closed hearing on one ground. Mr Robin Tam QC and Ms Kate Grange appear for the Secretary of State. I am most grateful to all counsel for their helpful oral and written submissions.
After these introductory remarks I must now turn to the facts.
The appellant is an Ethiopian national, aged 33. He came to the UK with his father, step-mother and siblings in 1990. Most of the family returned to Ethiopia in 1992, but the appellant and his sister remained in this country. Eventually, after various refusals of asylum and appeals, the appellant obtained indefinite leave to remain in the UK. He now has a wife and children in this country.
Unfortunately the appellant has not lived peacefully in his host country. Instead he has thrown in his lot with a group of Islamist extremists, who are committed to terrorism. The appellant has been associating with the following men: Dawit Semeneh, Joseph Kebide, Nathan Oqubay, Zulgai Popal, Elias Girma Eyassu, Bilal Berjawi, Mohammed Sakr, and Walla Eldin Rahman.
In May 2004 Semeneh and Kebide attended a training camp in Cumbria, which was run by a man called Hamid. Hamid was subsequently convicted of soliciting to murder and providing terrorism training. The training camp in May 2004 appears to have been a serious affair. Four men who were involved in the failed London bombings of 21 st July 2005 attended Hamid's training camp in May 2004.
In December 2004 the appellant and three others were found by the police at Lanark. They were all wearing plastic gloves. They said that they were on their way to Fort William. At about this time Hamid was organising a training or bonding camp near Loch Ness.
In May 2005 Semeneh, Oqubay, Popal, Eyassu and Kebide travelled to Somalia for purposes relating to terrorism. The appellant admits that he knew about this trip, but claims he thought it was for religious purposes.
On 21 st July 2005 the appellant was in telephone contact with a man called Hussain Osman. Osman was one of five men who attempted to cause bomb explosions in London on that day. He is now serving a substantial prison sentence.
In 2008 the UK Government wished to put in place arrangements whereby it could deport individuals associated with terrorism to Ethiopia without exposing those individuals to the risk of torture or ill treatment contrary to Article 3 of the ECHR. On 12 th December 2008 the British and Ethiopian Governments signed a Memorandum of Understanding concerning the provision of assurances in respect of persons who are deported between those two countries. I shall refer to that Memorandum of Understanding as "the MOU". The MOU provided:
"A request for assurances under this Memorandum may be made by the sending state in respect of any citizen of the receiving state who is suspected or convicted of activities which may constitute a threat to national security.
Such requests will be submitted in writing by the British Embassy in Addis Ababa to the Ministry of Foreign Affairs or by the Ethiopian Embassy in London to the Home Office. The Government to which the request is made will acknowledge receipt of the request within 5 working days.
A final response to such a request will be given promptly in writing, by the Home Secretary in the case of a request made to the United Kingdom, or by the Minister of Foreign Affairs in the case of a request made to Ethiopia.
To assist a decision on whether to request assurances under this Memorandum, the receiving state will inform the sending state of any penalties outstanding against a person, and of any outstanding convictions or criminal charges pending against him and the penalties which could...
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