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Session 2008 - 09
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Judgments - RB (Algeria) (FC) and another (Appellants) v Secretary of State for the Home Department
OO (Jordan) (Original Respondent and Cross-appellant) v Secretary of State for the Home Department (Original Appellant and Cross-respondent)


SESSION 2008-09

[2009] UKHL 10

on appeal from: [2007]EWCA Civ 808

[2008] EWCA Civ 290




RB (Algeria) (FC) and another (Appellants) v Secretary of State for the Home Department (Respondent)

OO (Jordan) (Original Respondent and Cross-appellant) v Secretary of State for the Home Department (Original Appellant and Cross-respondent)

Appellate Committee

Lord Phillips of Worth Matravers

Lord Hoffmann

Lord Hope of Craighead

Lord Brown of Eaton-under-Heywood

Lord Mance


Appellant (RB):

Rabinder Singh QC

Hugh Southey

(Instructed by Fisher Meredith LLP)

Appellant: (U):

Richard Drabble QC

Raza Husain, Hugh Southey

(Instructed by Birnberg Peirce & Partners)

Original Appellant (OO):

Michael Beloff QC

Robin Tam QC

Time Eicke, Andrew O'Connor, Alan Payne

(Instructed by Treasury Solicitors )

Respondent: (RB):

Robin Tam QC

Robert Palmer

(Instructed by Treasury Solicitors)

Original Respondent (OO):

Edward Fitzgerald QC

Guy Goodwin-Gill

Raza Husain, Danny Friedman

(Instructed by Birnberg Peirce & Partners)

Special Advocates Counsel:

Martin Chamberlain (RB &U)

Angus McCullough (OO)

(Instructed by Treasury Solicitors’ Special Advocates Support Office)

Interveners (Justice & Human Rights Watch) (RB & OO)

David Pannick QC
Helen Mountfield, Tom Hickman
(Instructed by Herbert Smith LLP)

Interveners (Liberty) (RB)

Ian Macdonald QC
Mark Henderson, Michelle Butler
(Instructed by Liberty)

Hearing dates:

23, 27, 28, 29 and 30 OCTOBER 2008






RB (Algeria) (FC) and another (Appellants) v Secretary of State for the Home Department (Respondent)

OO (Jordan) (Original Respondent and Cross-appellant) v Secretary of State for the Home Department (Original Appellant and Cross-respondent)

[2009] UKHL 10


My Lords,


1.  These appeals relate to three men whom the Secretary of State for the Home Department wishes to deport on the ground that each is a danger to the national security of the United Kingdom. Each contends that the Secretary of State cannot do so because deportation will infringe his rights under the European Convention on Human Rights (‘the Convention’). RB and U are Algerian nationals. They contend that deportation to Algeria will infringe their rights under article 3 of the Convention in that it will expose them to a real risk of torture or inhuman or degrading treatment. Mr Othman is a Jordanian national. He contends that if he is deported he will face a real risk of torture or inhuman or degrading treatment contrary to article 3 of the Convention, a real risk of a flagrant breach of his right to liberty under article 5 of the Convention and a real risk of a flagrant breach of his right to a fair trial under article 6 of the Convention, so that his deportation will infringe those three Convention rights.

2.  An unsuccessful appeal against the order for his deportation was made by each to the Special Immigration Appeals Commission (‘SIAC’). Appeals by RB and U against SIAC’s decisions were made to the Court of Appeal. Insofar as is material to the present appeals they were dismissed. Mr Othman’s appeal to the Court of Appeal was allowed on the single ground that his deportation would infringe his right to a fair trial under article 6 of the Convention. I shall describe RB, U and Mr Othman collectively as ‘the appellants’, this being the status that each had before SIAC. RB and U’s appeals to the House were heard immediately before the Secretary of State’s appeal in relation to Mr Othman and a cross-appeal brought by Mr Othman. Liberty intervened in support of RB and U. The House received interventions on behalf of Justice and Human Rights Watch. There are common issues, which include issues as to the legitimacy of SIAC’s procedures, and it is convenient to deliver a single judgment.

3.  In each case closed material was put before SIAC, which gave open and closed judgments. The Court of Appeal considered the closed material and also gave open and closed judgments. The Secretary of State invited us to consider the closed judgments and some closed material. We decided that it was not necessary or appropriate to do so.


4.  The obligations imposed by the Convention relate primarily to the manner in which signatories treat those who are within their jurisdictions. The ECtHR has, however, made it clear that the act of deportation or extradition is capable of infringing Convention obligations by reason of the treatment that the individual is likely to receive in the country to which he is deported or extradited. In Soering v United Kingdom (1989) 11 EHRR 439 the court held:

“90. It is not normally for the Convention institutions to pronounce on the existence or otherwise of potential violations of the Convention. However, where an applicant claims that a decision to extradite him would, if implemented, be contrary to article 3 by reason of its foreseeable consequences in the requesting country, a departure from this principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by that article.

91. In sum, the decision by a contracting state to extradite a fugitive may give rise to an issue under article 3, and hence engage the responsibility of that state under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country.”

The court went on to observe:

“The right to a fair trial in criminal proceedings, as embodied in article 6, holds a prominent place in a democratic society. The court does not exclude that an issue might exceptionally be raised under article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country.”

5.  In R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323 at para 9 Lord Bingham of Cornhill coined the phrase “foreign cases” to describe those cases in which it is claimed that the conduct of a state in removing a person from its territory to another territory may lead to a violation of the person’s Convention rights in that other territory. In this opinion I shall use that phrase in the same way.

6.  Chahal v United Kingdom (1996) 23 EHRR 413 was another foreign case. Like Soering the Convention right that was engaged was article 3. Article 3 is an absolute right. The ECtHR made it plain that the question of whether Article 3 prevented deportation was not influenced by the ground of deportation, even if this were that the individual under threat of deportation (‘the deportee’) posed a threat to national security:

“79. Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation.

80. The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion. In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees.”

7.  In Ullah the question was raised whether deportation of an alien could infringe the Convention because of the risk of violation of a Convention right in the receiving country where that right arose not under article 3 but under some other Convention article. The ECtHR had stated in Soering that this possibility could not be excluded in the case of article 6. This House held that it could not be ruled out not merely in relation to article 6 but in relation to articles 2, 4, 5, 7, 8 and 9. The speeches emphasised that it was only in extreme cases that it was possible to envisage these rights being successfully invoked in foreign cases. Lord Steyn ended his speech with this comment:

“It will be apparent from the review of Strasbourg jurisprudence that, where other articles may become engaged, a high threshold test will always have to be satisfied. It will be necessary to establish at least a real risk of a flagrant violation of the very essence of the right before other articles could become engaged.”

8.  This comment would seem well justified by the fact that, so far as I am aware, the ECtHR has not upheld a claim in any foreign case involving articles 4, 5, 6, 7, 8 or 9. Recently, however, this House upheld a claim in a foreign case where the right engaged was that arising under article 8 - EM (Lebanon)(FC) v Secretary of State for the Home Department [2008] UKHL 64; [2008] 3 WLR 931. By invoking articles 5 and 6 Mr Othman invites the House to break further new ground.

9.  In Chahal the ECtHR held that the possibility of judicial review of the Secretary of State’s decision did not constitute the “effective remedy” required by Article 13 of the Convention. This was because the Secretary of State had based his decision on matters of national security that had not been disclosed to the deportee. The court accepted that disclosure that would harm national security could not be expected. It commented at para 142 that, where questions of national security were in issue, an “effective remedy” meant “ ‘a remedy that is as effective as can be', given the necessity of relying upon secret sources of information". At para 144 the court commended what it understood to be a procedure introduced in Canada:

“…a Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarising, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the State’s case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant.”

10.   SIAC was created by the Special Immigration Appeals Commission Act 1997 (‘the 1997 Act’) in response to these observations. The object of that Act was to provide as effective a remedy as possible for those challenging immigration decisions that involved information which the Secretary of State considered should not be made public because disclosure would be contrary to the public interest. Amendments have been made to the Act by, among others, the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’).

11.  Section 82 of the 2002 Act gives those adversely affected by immigration decisions, including decisions to deport, the right to challenge the decisions by an appeal to the Asylum and Immigration Tribunal (‘AIT’). Section 84 sets out the grounds of appeal that may be advanced. These include that removal of the appellant would be incompatible with the appellant’s Convention rights. The right of appeal to the AIT is, however, subject to the provisions of section 97 of the Act. These preclude an appeal to the AIT where the Secretary of State’s decision was taken wholly or partly on grounds of national security or wholly or partly in reliance on information which in the Secretary of State’s opinion should not be made public in the interests of national security, the interests of the relationship between the United Kingdom and any other country, or otherwise in the public interest.

12.  Where an appeal against a decision is precluded by these provisions a right of appeal lies instead, under section 2(1) of the 1997 Act, to SIAC. Schedule 1 to the Act provides for the appointment of members to SIAC by the Lord Chancellor. SIAC is deemed to be duly constituted if it consists of three or more members, at least one of whom holds or has held high judicial office, and at least one of whom is or has been a legally qualified member of the AIT. In practice SIAC customarily sits in a panel of three and the third member appointed is a person with experience in security matters.

13.  Section 5 of the 1997 Act gives the Lord Chancellor the power to make rules. The following subsections of that section are of particular relevance:

“(3) Rules under this section may, in particular -

(a)  make provision enabling proceedings before the Commission to take place without the appellant being given full particulars of the reasons for the decision which is the subject of the appeal,

(b)  make provision enabling the Commission to hold proceedings in the absence of any person, including the appellant and any legal representative appointed by him,

(c)  make provision about the functions in proceedings before the Commission of persons appointed under section 6 below, and

(d)  make provision enabling the Commission to give the appellant a summary of any evidence taken in his absence….

(6) In making rules under this section the Lord Chancellor shall have regard, in particular, to -

(a) the need to secure that decisions which are the subject of appeals are properly reviewed, and

(b) the need to secure that information is not disclosed contrary to the public interest.”

14.  The Lord Chancellor has made the Special Immigration Appeals Commission (Procedure) Rules 2003 (“the 2003 Rules”) pursuant to section 5. These Rules have been amended, but at the time that the appeals of RB, U and Mr Othman were heard the original Rules were in force. Rule 4, which was headed “General duty of Commission", provided as follows:

“4(1) When exercising its functions, the Commission 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.

(2) Where these Rules require information not to be disclosed contrary to the public interest, that requirement is to be interpreted in accordance with paragraph (1).

(3) Subject to paragraphs (1) and (2), the Commission must satisfy itself that the material available to it enables it properly to determine proceedings.”

15.  The Rules go on to provide machinery to enable SIAC to give effect to these duties. Rule 34 provides for the appointment of Special Advocates. Rule 35 provides for the manner in which the Special Advocate is to perform his function of representing the interests of an appellant to SIAC. Rule 36 provides that the Special Advocate may communicate with the appellant or his representative up to the time that he is served with ‘closed material’ but not thereafter unless authorised so to do by SIAC. “Closed material” is defined by Rule 37(1) to mean material upon which the Secretary of State wishes to rely in any proceedings before the SIAC, but which the Secretary of State objects to disclosing to the appellant or his representative. Such material may only be relied upon if a special advocate has been appointed to represent the appellant’s interests: Rule 37(2). When serving closed material upon the special advocate, the Secretary of State must also serve a statement of the material in a form which can be served on the appellant, if and to the extent that it is possible to do so without disclosing information contrary to the public interest: Rule 37(3)(c).

16.  Rule 38 provides for the procedure by which the Special Advocate may challenge the Secretary of State’s objections to disclosure of the closed material. SIAC may uphold or overrule the Secretary of State’s objection. If it overrules the objection, it may direct the Secretary of State to serve on the appellant all or part of the closed material which he has filed with the SIAC but not served on the appellant. In that event, the Secretary of State shall not be required to serve the material if he chooses not to rely upon it in the proceedings.

17.  The procedures laid down by these rules have been supplemented by the Secretary of State by practices which were established at the time of the appeals with which your Lordships are concerned and which have since been inserted, by amendment, into the Rules. A wide search is carried out for ‘exculpatory material', that is, material that will advance the case of an appellant or detract from the case of the Secretary of State. Exculpatory material is disclosed to the appellant save where this would not be in the public interest. In that event it is disclosed to the special advocate. Rule 38 applies to such material.

18.  Section 7 of the 1997 Act confers a right of appeal to the Court of Appeal against a final determination of an appeal made by SIAC in England and Wales “on any question of law material to that determination".

SIAC’s decision in relation to RB

19.  RB left Algeria in 1992, but did not arrive in the United Kingdom until 4 May 1995. He was granted 6 months leave to enter. Contact with him was lost until February 1999 at which point he made a claim to asylum. This had not been resolved by September 2003 when he was arrested on charges that included offences under the Terrorism Act 2000. These charges were later withdrawn. He pleaded guilty to offences in relation to a false passport and was sentenced to three months imprisonment. On release in July 2004 on the expiration of his sentence he was granted temporary admission. On 15 September 2005 he was served with notice of the decision of the Secretary of State for the Home Department to deport him to Algeria on grounds of national security, pursuant to section 3(5) of the Immigration Act 1971. He appealed against this decision to SIAC on the ground, among others, that if he returned to Algeria he faced a real risk of ill-treatment contrary to article 3 of the Convention (‘article 3’).

20.  RB was arrested on 15 September 2005 after he was served with notice of the intention to deport him and remained detained until 22 April 2008 when SIAC ordered his release on conditional bail, which was not opposed by the Secretary of State.

21.  SIAC held both open and closed hearings. Their decision was delivered by Mitting J on 5 December 2006 in open and closed judgments. SIAC’s first finding was that RB was a threat to national security so that it would be in the public good for him to be deported. No reasons were given for this in the open judgment. SIAC explained that the reasons could only be discerned from the closed decision.

22.  SIAC then turned to deal with the issue of ‘safety on return'. Mitting J set out the test to be applied, based on Chahal: “whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to article 3 if removed to another state, the responsibility of the contracting state to safeguard him or her against such treatment is engaged in the event of expulsion". He commented that the assessment of risk was fact-specific and had to be related to the individual applicant. He then posed the question of what part assurances given by the receiving state could play in the evaluation of the risk. This, he said, was not a question of law but he none the less observed that the ECtHR had twice taken assurances into account in answering the basic question and once attached significance to the lack of such assurances (paragraph 4).

23.  Mitting J stated that assurances given by the Algerian Government were central to the issue of safety on return. He then set out four conditions that had to be satisfied if the assurances were to carry the credibility necessary to permit RB’s return to Algeria:

i)  the terms of the assurances had to be such that, if they were fulfilled, the person returned would not be subjected to treatment contrary to Article 3;

ii)  the assurances had to be given in good faith;

iii)  there had to be a sound objective basis for believing that the assurances would be fulfilled;

iv)  fulfilment of the assurances had to be capable of being verified.

The first two conditions were axiomatic. The third required a settled political will to fulfil the assurances allied to an objective national interest in doing so. It also required the state to be able to exercise an adequate degree of control over its agencies, including its security services, so that it would be in a position to make good its assurances. As to verification, this could be achieved by a number of means, both formal and informal, of which monitoring was only one. Effective verification was, however, an essential requirement. An assurance the fulfilment of which was incapable of being verified would be of little worth.

24.  Mitting J then turned to consider the general situation in Algeria. This had been exhaustively summarised by SIAC in its open decision in the case of Y delivered on 24 August 2006 and SIAC accepted and adopted this in relation to RB. SIAC had found a general amelioration of a situation of insurgency in Algeria. On 14 August 2005 President Bouteflika had presented a Charter for Peace and National Reconciliation, which was implemented by an Ordonnance of 27 February 2006. Pursuant to this 2,500 detainees, including persons convicted of terrorist offences committed within Algeria, had been released. On 11 July 2006 the UK and Algeria had signed four conventions on extradition, judicial co-operation in civil and commercial matters, the circulation and readmission of persons and mutual legal assistance in criminal matters. President Bouteflika had acknowledged and approved a letter from the Prime Minister which included the statement that “this exchange of letters underscores the absolute commitment of our two governments to human rights and fundamental freedoms…” By longstanding diplomatic convention this amounted to a commitment on the part of the Algerian government to respect those rights.