RB (Algeria) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Buxton
Judgment Date09 April 2008
Neutral Citation[2008] EWCA Civ 290,[2007] EWCA Civ 808
Date09 April 2008
Docket NumberCases Nos: T1/2006/2624, T1/2006/2669 and T1/2007/9505,Case No: T1/2007/9502

[2007] EWCA Civ 808

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION

(1) The Hon Mr Justice Ouseley, Mr CP Mather and Mr J Daly

SC/36/2005

(2) The Hon Mr Justice Mitting, Senior Immigration Judge Latter

And Mr J Daly

SC/39/2005

(3) The Hon Mr Justice Mitting, Senior Immigration Judge Mackey

and Mr J Mitchell

SC/32/2005

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

The Master of the Rolls

Lord Justice Buxton and

Lady Justice Smith

Cases Nos: T1/2006/2624, T1/2006/2669 and T1/2007/9505

Between
(1) MT (Algeria)
(2) RB (Algeria)
(3) U (Algeria)
Appellants
and
Secretary of State for the Home Department
Respondent

Keir Starmer QC and Raza Husain (instructed by Birnberg Peirce and Partners) for the Appellant MT

Rabinder Singh QC and Hugh Southey (instructed by Fisher Meredith) for the Appellant RB

Richard Drabble QC and Hugh Southey (instructed by Birnberg Peirce and Partners) for the Appellant U

Dinah Rose QC and Alex Bailin (instructed by intervener Liberty) for the Respondent

Robin Tam QC, Robert Palmer and Caroline Neenan (instructed by the Treasury Solicitor) for the Respondent

Judith Farley as Special Advocate for MT

Nicholas Blake QC and M Chamberlain as Special Advocate for RB

Andrew Nicol QC and T de la Mare as Special Advocate for U (instructed in each case by the Special Advocates Support Office)

Hearing dates: MT: 25–28 April, 2–4 and 24 May, 28 June and 24 August 2006

RB: 14–17 November and 5 December 2006

U: 13–21 February, 17–18 April and 14 May 2007

Judgement

INDEX

DESCRIPTON

PARAGRAPH NUMBERS

Introduction

1–5

Closed material

Introduction

6–8

The statutory scheme

9

The effect of article 3 of the Convention

10–13

Legality and fairness as a matter of English law

14–18

A question of balance

19–22

Conclusion as to the use of closed material

23

The appeal of Y

Introduction

24–25

The background facts

26–30

The Ordonnance

31–39

Article 8

40–44

Article 9

45–58

Meeting in Algiers on 14 November 2006

59–64

Discussion

65–70

Remission

71–75

Closed material

76

Article 1F(c) of the Refugee Convention

77–90

Disposal of Y's appeal

91

The jurisdiction of this court

Introduction

92

The statute and the issue

93–96

A mixed question of law and fact

97–99

The appellants' case expanded

100

Authority on proportionality is irrelevant

101

Fact-finding obligations in a Convention case

102–107

The role of “assessment”

108–110

The comparison with judicial review

111–112

Conclusion as to the court's jurisdiction

113

The appeal of BB

Background

114–120

The factual findings of SIAC

121

Control of the DRS

122–123

SIAC's assessment of the attitudes of the Algerian state

124

Are assurances ever appropriate?

125–127

The terms of the assurances

128–129

Monitoring

130–132

Conclusion on SIAC's findings of fact

133–134

Disclosure of information by the Secretary of State

135–137

Prison Conditions

138

Article 6

139

Disposal of BB's appeal

140

The appeal of U

Introduction

141

The appeal to SIAC

142–155

The appeal to this court

156

Karanakaran

157–164

Shamayev

165–166

Verification of compliance with assurances

167

The language of the assurances

168

Prison conditions

169–173

Separate consideration of the risk or torture and bad prison conditions

174

Article 6

175–188

Disposal of U's appeal

189

Conclusions

190–192

Sir Anthony Clarke MR:

This is the judgment of the court to which each of its members has made a substantial contribution.

Introduction

1

This is the open judgment of the court in three appeals from determinations of the Special Immigration Appeals Tribunal ('SIAC') in each of which SIAC dismissed an appeal from a deportation decision of the Secretary of State for the Home Department ('the Secretary of State') made on the ground of national security. In this court the appellants have been called MT, RB and U. Before SIAC they were called Y, BB and U respectively and we will use these initials in this judgment.

2

SIAC was created by section 1 of the Special Immigration Appeals Commission Act 1997 ('the 1997 Act'). By section 2 of SIACA as amended, a person may appeal to SIAC if he would have been entitled to appeal against the decision under sections 82(1), 83( 2) or 83A(2) of the Nationality, Immigration and Asylum Act 2002 but for a certificate under section 97 of that Act ('the 2002 Act'). By section 97(1) an appeal under those sections may not be brought if the Secretary of State certifies that the decision was made or taken wholly or in part on a ground listed in subsection 97(2), namely (a) in the interests of national security or (b) in the interests of the relationship between the United Kingdom and any other country.

3

These appeals raise closely related but in some respects different issues. They each centre principally on whether there is a real risk that the particular appellant will be subjected to treatment contrary to article 3 of the European Convention on Human Rights ('the Convention') if he is returned to Algeria. It is common ground that that is the test under article 3: see eg Chahal v United Kingdom (1996) 23 EHRR 413 ('Chahal') at [97]. Article 3 of course provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

4

In the case of each appellant the Secretary of State decided to deport him to Algeria on the ground that his deportation would be conducive to the public good because he was a danger to national security. By section 7 of SIACA, this court has jurisdiction to entertain an appeal from such a decision but it is limited to “any question of law material to” the decision. In each case the appellant submits that SIAC erred in law in concluding that there were no substantial grounds for believing that he would be exposed to a real risk of being subjected to torture or to inhuman or degrading treatment or punishment contrary to article 3 of the Convention if returned to Algeria.

5

We will consider the issues in this order; the appellants' objections to the use of closed material, which are common to all three appeals, the appeal of Y, the jurisdiction of this court, which is principally relevant to the appeals of BB and U, the appeal of BB, the appeal of U and our overall conclusions

Closed material

Introduction

6

The issue is whether it was open to SIAC to use closed, as well as open, material in reaching its conclusions. SIAC did rely on, or at least refer to, such material in reaching its conclusions, adverse to all of the appellants, on risk on return; and in reaching its conclusion, contested before us in closed proceedings, as to the danger to national security presented by BB. The appellants contended that that procedure was unlawful, an unlawfulness that was not cured by the system of special advocates. The Secretary of State should either have made his case on the basis of material that was disclosed to the appellant, or have accepted that the appellant could not lawfully be removed to Algeria.

7

SIAC's procedure was that envisaged by section 5 of the 1997 Act, section 97 of the 2002 Act and rule 4 of the SIAC (Procedure) Rules 2003 ('the SIAC rules'). In order to demonstrate that SIAC had erred in law the appellants had to displace or explain that statutory scheme. Their case was that SIAC was nonetheless prevented from relying on undisclosed evidence by both of, or by a combination of, the jurisprudence of the ECtHR and the rules of English common law.

8

This case was supported by the intervener, Liberty, who had the advantage, as did the court, of submissions by Miss Dinah Rose QC. Miss Rose formulated the issue as being:

“whether SIAC erred in taking into account material which had not been disclosed to the appellant in support of its conclusion that the appellants did not face a real risk of torture if removed to Algeria.”

The statutory scheme

9

We have already noted that by section 97(3) of the 2002 Act SIAC's jurisdiction is engaged when the Secretary of State certifies that his decision was made wholly or partly in reliance on information which should not be made public (a) in the interests of national security; (b) in the interests of the relationship between the United Kingdom and another country; or (c) otherwise in the public interest. SIAC's procedure is governed by the 1997 Act, and rules made under that Act. Section 5(3)(a) of the 1997 Act provides that rules may be made which enable proceedings before SIAC to take place without the appellant being given full particulars of the reasons for the decision. Rule 4(1) of the SIAC rules provides:

“When exercising its functions, [SIAC] 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.”

The effect of article 3 of the Convention

10

The argument changed its shape somewhat in the course of the proceedings, but the final statement of it rested very strongly on what was described as the procedural as well as the substantive component of article 3. The state's obligation is not only not to deport persons to a state where they face a real risk of torture, but also to ensure that the proceedings in which that issue was...

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