A, X and Y and Others and Secretary of State for the Home Department

JurisdictionUK Non-devolved
Judgment Date16 December 2004
Neutral Citation[2004] UKHL 56
CourtHouse of Lords
Date16 December 2004
A (FC)

and others

(FC) (Appellants)
Secretary of State for the Home Department
X (FC)

and another

(FC) (Appellants)
Secretary of State for the Home Department

[2004] UKHL 56

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Hope of Craighead

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Carswell



My Lords,


The nine appellants before the House challenge a decision of the Court of Appeal (Lord Woolf CJ, Brooke and Chadwick LJJ) made on 25 October 2002 ( [2002] EWCA Civ 1502, [2004] QB 335). The Court of Appeal allowed the Home Secretary's appeal against the decision of the Special Immigration Appeals Commission (Collins J, Kennedy LJ and Mr Ockelton) dated 30 July 2002 and dismissed the appellants' cross-appeals against that decision: [2002] HRLR 1274.


Eight of the appellants were certified by the Home Secretary under section 21 of the Anti-terrorism, Crime and Security Act 2001 on 17 or 18 December 2001 and were detained under section 23 of that Act on 19 December 2001. The ninth was certified on 5 February 2002 and detained on 8 February 2002. Two of the eight December detainees exercised their right to leave the United Kingdom: one went to Morocco on 22 December 2001, the other (a French as well as an Algerian citizen) went to France on 13 March 2002. One of the December detainees was transferred to Broadmoor Hospital on grounds of mental illness in July 2002. Another was released on bail, on strict conditions, in April 2004. The Home Secretary revoked his certification of another in September 2004, and he has been released without conditions.


The appellants share certain common characteristics which are central to their appeals. All are foreign (non-UK) nationals. None has been the subject of any criminal charge. In none of their cases is a criminal trial in prospect. All challenge the lawfulness of their detention. More specifically, they all contend that such detention was inconsistent with obligations binding on the United Kingdom under the European Convention on Human Rights, given domestic effect by the Human Rights Act 1998; that the United Kingdom was not legally entitled to derogate from those obligations; that, if it was, its derogation was nonetheless inconsistent with the European Convention and so ineffectual to justify the detention; and that the statutory provisions under which they have been detained are incompatible with the Convention. The duty of the House, and the only duty of the House in its judicial capacity, is to decide whether the appellants' legal challenge is soundly based.


In argument before the House, Liberty made written and oral submissions in support of the appellants, as it did in the courts below. Amnesty International made written submissions, also in support of the appellants. Special advocates were instructed by the Treasury Solicitor, but were not in the event called upon.

The background


In July 2000 Parliament enacted the Terrorism Act 2000. This was a substantial measure, with 131 sections and 16 Schedules, intended to overhaul, modernise and strengthen the law relating to the growing problem of terrorism. Relevantly for present purposes, that Act defined "terrorism" in section 1, which reads:

"1 Terrorism: interpretation

  • (1) In this Act 'terrorism' means the use or threat of action where-

  • (a) the action falls within subsection (2),

  • (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and

  • (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

  • (2) Action falls within this subsection if it -

  • (a) involves serious violence against a person,

  • (b) involves serious damage to property,

  • (c) endangers a person's life, other than that of the person committing the action,

  • (d) creates a serious risk to the health or safety of the public or a section of the public, or

  • (e) is designed seriously to interfere with or seriously to disrupt an electronic system.

  • (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

  • (4) In this section -

  • (a) 'action' includes action outside the United Kingdom,

  • (b) a reference to any person or to property is a reference to any person, or to property, wherever situated,

  • (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and

  • (d) 'the government' means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.

  • (5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation."


On 11 September 2001 terrorists launched concerted attacks in New York, Washington DC and Pennsylvania. The main facts surrounding those attacks are too well known to call for recapitulation here. It is enough to record that they were atrocities on an unprecedented scale, causing many deaths and destroying property of immense value. They were intended to disable the governmental and commercial power of the United States. The attacks were the product of detailed planning. They were committed by terrorists fired by ideological hatred of the United States and willing to sacrifice their own lives in order to injure the leading nation of the western world. The mounting of such attacks against such targets in such a country inevitably caused acute concerns about their own security in other western countries, particularly those which, like the United Kingdom, were particularly prominent in their support for the United States and its military response to Al-Qaeda, the organisation quickly identified as responsible for the attacks. Before and after 11 September Usama bin Laden, the moving spirit of Al-Qaeda, made threats specifically directed against the United Kingdom and its people.


Her Majesty's Government reacted to the events of 11 September in two ways directly relevant to these appeals. First, it introduced (and Parliament, subject to amendment, very swiftly enacted) what became Part 4 of the Anti-terrorism, Crime and Security Act 2001. Secondly, it made the Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 2001/3644) ("the Derogation Order"). Before summarising the effect of these measures it is important to understand their underlying legal rationale.


First, it was provided by para 2(2) of Schedule 3 to the Immigration Act 1971 that the Secretary of State might detain a non-British national pending the making of a deportation order against him. Para 2(3) of the same schedule authorised the Secretary of State to detain a person against whom a deportation order had been made "pending his removal or departure from the United Kingdom". In R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 it was held, in a decision which has never been questioned (and which was followed by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97), that such detention was permissible only for such time as was reasonably necessary for the process of deportation to be carried out. Thus there was no warrant for the long-term or indefinite detention of a non-UK national whom the Home Secretary wished to remove. This ruling was wholly consistent with the obligations undertaken by the United Kingdom in the European Convention on Human Rights, the core articles of which were given domestic effect by the Human Rights Act 1998. Among these articles is article 5(1) which guarantees the fundamental human right of personal freedom: "Everyone has the right to liberty and security of person". This must be read in the context of article 1, by which contracting states undertake to secure the Convention rights and freedoms to "everyone within their jurisdiction". But the right of personal freedom, fundamental though it is, cannot be absolute and article 5(1) of the Convention goes on to prescribe certain exceptions. One exception is crucial to these appeals:

"(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

  • (f) the lawful arrest or detention of ….. a person against whom action is being taken with a view to deportation ….."

Thus there is, again, no warrant for the long-term or indefinite detention of a non-UK national whom the Home Secretary wishes to remove. Such a person may be detained only during the process of deportation. Otherwise, the Convention is breached and the Convention rights of the detainee are violated.


Secondly, reference must be made to the important decision of the European Court of Human Rights in Chahal v United Kingdom (1996) 23 EHRR 413. Mr Chahal was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of the day decided that he should be deported from this country because his continued presence here was not conducive to the public good for reasons of a political nature, namely the international fight against terrorism. He resisted deportation on the ground (among others) that, if returned to India, he faced a real risk of death, or of torture in custody contrary to article 3 of the European Convention which provides that "No one shall be subjected to torture or to inhuman or degrading...

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