R (B) v Secretary of State for Foreign and Commonwealth Affairs

Lord Phillips, MR:

This is the judgment of the Court

Introduction

This appeal raises the question of whether and in what circumstances the Human Rights Act 1998 requires British diplomatic or consular officials to afford what has been described as 'diplomatic asylum' to fugitives whose fundamental human rights are under threat. The matter came before us as an application for permission to appeal against the refusal by the Administrative Court to grant permission to bring a claim for judicial review. Moses J refused the paper application on 8 October 2003. Legal aid was withdrawn at this point and the applicants were not present or represented before Sullivan J on 10 March 2004 when the matter was listed for an oral hearing. Sullivan J dismissed the application in their absence.

Because the issue raised was both novel and important we decided, in the course of the hearing, that it would be appropriate to grant permission and to reserve to ourselves the application for judicial review. Mr Tim Eicke, for the Secretary of State, took the point that the application was well out of time. So it was, but there were extenuating circumstances and we have decided that it is right that we should deal with the application on its merits.

Lord Kingsland QC, for the applicants, contended that their rights under Article 6 of the European Convention on Human Rights ('the Convention') had been infringed at more than one stage of the story. We can see no merit in that contention. What is at issue in this case is whether substantive human rights have been infringed. If these are properly to be classified as 'civil rights', the three day hearing that the applicants have had before this court clearly satisfies their right, under Article 6, to a fair and public trial.

The facts

The applicants are, or at least claim to be, of Afghan origin. They claim to be members of the Hazara ethnic minority from the Urizghan province. When the events giving rise to their claim occurred Alamdar was thirteen years old and his brother Muntazar twelve. It is their case that in March 1998 their father left Afghanistan and travelled to Rawalpindi in Pakistan and that a little later their mother took them to join him. Their father then left Pakistan with the intention of travelling to Germany. Those arranging for his travel conveyed him instead to Indonesia. From there he took a boat to Australia, where he arrived without documentation in October 1999 and claimed asylum. He was detained until August 2000 when he was granted a Protection Visa by the Australian Immigration Authorities on the basis of his Afghan nationality and Hazara ethnicity. He went to live in Sydney.

The applicants, with their mother and three sisters, followed their father to Australia. They arrived without documentation in January 2001 and sought asylum. Pursuant to section 189 of the Migration Act 1958 they were detained in the Woomera Detention Centre in South Australia. On 21 February 2001 the applicants' mother applied for a Temporary Protection Visa for herself and her five children on humanitarian grounds. The application was refused. Appeals, including a judicial challenge to this refusal, were not successful, ending in a rejection of a final appeal by the High Court of Australia on 23 February 2003. Meanwhile, on 12 April 2002 the Australian Department of Immigration gave the applicants' father Notice of Intention to cancel his visa on the ground that he was from Quetta in Pakistan and not Afghanistan. He was returned to detention in December 2002. Judicial challenges to this decision have failed.

The Woomera Detention Centre opened in 1999 as one of a number of centres for the detention, pursuant to the Migration Act 1958, of those who arrived in Australia by sea without authorisation. By 2001 the conditions in which immigrants, and especially children, were detained in Woomera and other detention centres were giving rise to well publicised concern. On 28 November 2001 the Australian Human Rights Commissioner announced the commencement of an Inquiry into Children in Immigration Detention. The Inquiry reported on 14 May 2004. The Report found:

"Children in immigration detention for long periods of time are at high risk of serious mental harm. The Commonwealth's failure to implement the repeated recommendations by mental health professionals that certain children be removed from the detention environment with their parents, amounted to cruel, inhumane and degrading treatment of those children in detention."

On or about 29 June 2002 35 detainees escaped from the Woomera Detention Centre. They included the two applicants, but not the other members of their family. At about 1000 on 18 July 2002 the applicants entered the waiting area of the British Consulate in Melbourne, escorted by a nun. The receptionist asked if she could help them and they replied that they had come to seek asylum. The media had plainly been tipped off, for media representatives arrived and sought, unsuccessfully, permission to interview the nun and the applicants and to take photographs.

The applicants had clearly had the benefit of legal assistance, for they had each been provided with a statement in the following terms:

"I request asylum, refugee and humanitarian protection from the Government of the United Kingdom of Great Britain.

Please bring our urgent request to the immediate attention of your High Commissioner or his or her most senior representative.

The United Kingdom of Great Britain is a signatory to the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol relating to the status of Refugees.

The United Kingdom of Great Britain is also a signatory to other international human rights instruments that apply to my case including but not limited to the Universal Declaration of Human Rights, the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, the United Nations Convention Against Torture and other Forms of Cruel, Inhuman and Degrading Punishment and the International Covenant on Economic, Social and Cultural Rights.

The United Kingdom of Great Britain is represented on the Executive Committee (EXCOM) of the United Nations High Commissioner for Refugees (UNHCR). The United Kingdom of Great Britain is also a party to the European Convention of Human Rights which now forms part of the domestic law of the United Kingdom through the passage of the Human Rights Act 1998.

We request that you abide by the very important international and domestic human rights and refugee law principles which the government of the United Kingdom of Great Britain has entered into and not remove either myself or my brother from this consulate or embassy."

The applicants gave their statements to the receptionist, who read them and returned them to the applicants. She then went to the office of Mr Philip Mudie, the Vice-Consul, and informed him of what had occurred. Mr Mudie telephoned Mr Robert Court, the Deputy High Commissioner, who happened to be in Melbourne at the time, accompanying Ms Patricia Hewitt, the Secretary of State for Trade and Industry. He took the call on his mobile telephone and may well have explained what had occurred to, or within the hearing of, the Federal and State Police who were escorting him and the Minister.

Mr Mudie led the applicants from the reception area to his office, where they were joined by two lawyers, Mr Vardalis and Mr Burt, who had been instructed to represent the applicants. Mr Vardalis had been given a briefing note about each of the boys, and he conveyed the information contained in these to Mr Mudie.

Alamdar's experiences were described in the briefing note as follows:

"Alamdar has related a catalogue of incidents of an extremely traumatic nature which he has either directly experienced or witnessed.

Alamdar has witnessed numerous riots at Woomera and has been himself repeatedly exposed to tear gas and water cannons. On one occasion when ACM were deploying tear gas canisters in Woomera Alamdar found a live canister which was emitting tear gas in Donga (accommodation hut) No.18 where his uncle was sleeping. Alamdar immediately grabbed a blanket that he placed over the live canister and threw it out of the donga. He has described the experience of being exposed to tear gas as akin to being 'blinded – I cannot see and I cannot breathe'.

On another occasion Alamdar was located near the perimeter fence when a disturbance was in progress. Alamdar relates an incident when an ACM officer using his shield pushed him into razor wire near the perimeter fence. Alamdar sustained a laceration to his right forearm from contact with the razor wire. A raised and healed scar on the right forearm is clearly visible and distinguishable from other scars, which have been the results of acts of self-harm.

Alamdar has frequently engaged in acts of self-harm while at Woomera. Previous to his detention in Woomera Alamdar had never self-harmed. Alamdar has cut both his arms using razor blades and has engaged in two prolonged hunger...