RB (Algeria) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Court | Court of Appeal (Civil Division) |
| Judge | Lord Justice Buxton |
| Judgment Date | 09 April 2008 |
| Neutral Citation | [2008] EWCA Civ 290,[2007] EWCA Civ 808 |
| Date | 09 April 2008 |
| Docket Number | Cases 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
The Master of the Rolls
Lord Justice Buxton and
Lady Justice Smith
Cases Nos: T1/2006/2624, T1/2006/2669 and T1/2007/9505
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
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.
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.
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.”
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.
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
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.
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.
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
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
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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