A, X and Y v Secretary of State for the Home Department [Court of Appeal (Civil Division).]
| Jurisdiction | England & Wales |
| Judgment Date | 25 October 2002 |
| Date | 25 October 2002 |
| Court | Court of Appeal (Civil Division) |
(Collins J, Chairman; Kennedy LJ and Ockelton, Members)
(Lord Woolf CJ; Brooke and Chadwick LJJ)
Aliens Immigration and deportation Alien suspected of terrorist activity Whether subject to deportation Whether liable to detention if deportation not practicable Discrimination Objective differences between aliens and nationals Whether justifying differences in treatment Customary international law regarding detention of aliens in time of war and national emergency
Human rights Right to liberty Discrimination Detention of aliens suspected of involvement in terrorism Detention limited to persons who cannot be deported Whether discriminatory European Convention on Human Rights, 1950, Article 15(1) Extent of right to derogate from Convention Notice of derogation Nature of public emergency threatening the life of the nation Whether measures taken strictly required by the exigencies of the situation Other human rights treaties
Relationship of international law and municipal law Treaties European Convention on Human Rights, 1950 Human Rights Act 1998 Whether right to derogate more limited under Act than under Convention Customary law Application by national courts
Terrorism Definition Anti-terrorism, Crime and Security Act 2001 Terrorism as threat to international peace and security Role of the courts in controlling executive and legislative action in the field of terrorism The law of England
Summary: The facts:Following the terrorist attacks in the United States of America on 11 September 2001, the United Kingdom Parliament enacted the Anti-terrorism, Crime and Security Act 2001 (the Act). Section 23 of the Act2 conferred on the Secretary of State power to issue a certificate in respect of any person who was not a national of the United Kingdom if he reasonably believed that their presence in the United Kingdom posed a risk to national security and suspected that that person was involved in terrorism. Terrorism was defined for these purposes by Section 1 of the Act. A person in respect of whom a certificate was issued could be deported but, if deportation was prevented by fears for their safety in any State to which they could be deported or because of practical considerations, such a person could be detained in the United Kingdom. A person so detained was free to leave the United Kingdom but was subject to detention if he or she opted to remain in the United Kingdom.
The United Kingdom Government determined that, in the aftermath of the events of 11 September 2001, international terrorism created a public emergency threatening the life of the nation. Accordingly, it gave notice under Article 15 of the European Convention on Human Rights (the Convention)3 that it was derogating from the right to liberty under Article 5 of the Convention to the extent necessary to permit the detention of persons covered by Section 23 of the Act.4 The derogation was notified to the Council of Europe and set out in the Human Rights Act 1998 (Designated Derogation) Order 2001 (the Order), as required by the Human Rights Act.5
Certificates were issued in respect of eleven persons, two of whom opted to leave the United Kingdom. The remaining nine persons were detained under Section 23. They appealed to the Special Immigration Appeals Commission in accordance with Section 30 of the Act. They contended that the derogation was unlawful in that (1) the requirements of Article 15 were not met, since there was no public emergency threatening the life of the nation; (2) even if there were, the Act went beyond what was strictly required by the exigencies of the situation and was therefore disproportionate; and (3) the provision for detention of non-nationals was discriminatory and therefore contrary to other principles of international law. The Commission had before it both evidence which was available to the appellants and closed material.
Held:The Order was quashed and a declaration granted that the Act was incompatible with the Convention to the extent that it permitted the detention of non-nationals suspected of terrorism but not of British citizens.
(1) The evidence which was disclosed to the appellants showed that there was a public emergency threatening the life of the nation. The fact that other European States had not derogated from the Convention was not conclusive. The attacks of 11 September 2001 were not an isolated event but heightened the risk. The Secretary of State had been entitled to conclude that the United Kingdom was a prime target, second only to the United States, and that if an attack were to take place it could well occur without warning and on a sufficient scale to threaten the life of the nation. Article 15 of the Convention required the actuality or imminence of an emergency; it did not require a government to wait until a terrorist attack was itself imminent (paras. 2435).
(2) The measures taken did not go beyond what was strictly required by the exigencies of the situation. The fact that the same objectives might have been achieved by other means did not demonstrate that the measures actually adopted were not strictly necessary. The process of fitting the measures to the threat was a difficult one and the Commission should not substitute its discretion for that of the Government. In determining whether the measures were over-inclusive, it was necessary not to consider them in the abstract but to look at how they were actually applied in practice. On that basis, it could not be said that the measures in question were over-inclusive. The fact that a detainee could choose to leave the United Kingdom, far from showing that the measures were irrational, confirmed that they did not go beyond what was required (paras. 3753).
(3) The measures adopted were, however, clearly discriminatory since only non-nationals could be subjected to detention.
(a) The derogation from the Convention, as notified to the Council of Europe, was expressed to be only in respect of the obligations of the United Kingdom under Article 5. The United Kingdom remained subject to Article 14, which prohibited discrimination on grounds of nationality, as well as other human rights provisions, noticeably those of the International Covenant on Civil and Political Rights, 1966 (the ICCPR), from which the United Kingdom had again derogated only in respect of the provisions on personal liberty and not in respect of those on discrimination or other matters. Nevertheless, the notification requirements of Article 15(3) of the Convention and Article 4(3) of the ICCPR were directory, not mandatory. The lawful ambit of the measures taken by the Government was not, in international law, limited by the terms of the diplomatic communication (paras. 5463).
(b) The position was different in domestic law. The requirement in the Human Rights Act that any derogation be designated was a strict one and derogation was accordingly limited to what was actually contained in the Order. Accordingly, the appellants were entitled to succeed if they could establish that the Act contravened any of their Convention rights other than those arising under Article 5(1) (paras. 646).
(c) There was no violation of Article 3 of the Convention either in the option to leave the United Kingdom or in the manner of a detainee's treatment while in detention. Nor did detention violate Article 6 of the Convention (paras. 6778).
(d) While States were entitled to discriminate on grounds of nationality in their immigration policy and decisions, once an alien was admitted to the United Kingdom he or she was entitled to be treated in a non-discriminatory fashion outside the immigration context. If an alien could not be deported because of the risk of torture in the only State or States to which he could be returned, he had to be allowed to remain in the United Kingdom. He could not, therefore, be detained indefinitely simply on the basis that he could not be deported (paras. 7995).
The Secretary of State appealed against the decision of the Commission on the issue of discrimination. The detainees cross-appealed against the decision of the Commission on the other grounds.
Held:The appeal was allowed and the cross-appeals dismissed.
(1) Notwithstanding the derogation, there could still be discrimination in relation to Article 5 of the Convention read together with Article 14. Accordingly, if there had been discrimination, as the Commission held, the Order and the Act were flawed and the Commission had been right to grant the relief sought (paras. 301).
(2) The Commission had been entitled to find that there was a public emergency threatening the life of the nation within the meaning of Article 15(1) of the Convention. Each State Party to the Convention had a responsibility for the life of its nation and it fell to the State to determine whether there was an emergency which threatened that life and what measures were strictly required to address it. While the Convention institutions would subject such a decision to scrutiny, they would do so on the basis of a broad margin of discretion for the State. Derogation required an actual or imminent emergency but the term imminent should not be given too literal an interpretation (paras. 334, 7290 and 1404).
(3) The Commission had been entitled to find that the measures taken were strictly required by the exigencies of the situation. The threat posed by international terrorism was one which had been characterized by the UN Security Council as a threat to international peace and security. While the language of the Act was very wide, the Attorney-General had undertaken that the relevant powers would be used only for the emergency which was the subject of the derogation. Decisions as to what was required in the interest of national...
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