In mid June 2012, the Court of Appeal (Lord Neuberger MR, Richards and Davis LJJ) unanimously upheld the Special Immigration Appeals Commission’s (SIAC) decision that the deportation of an Ethiopian national – who posed a national security risk – would not breach articles 3 and 6 of the ECHR. The ruling rested on the basis of the existence of a memorandum of understanding (MoU) between the British and Ethiopian governments that the latter would comply with its human rights obligations under international law.
The appellant, XX, arrived in the UK with his mother and siblings in 1992 and subsequently (in 1999) acquired indefinite leave to remain (ILR). Prior to that, XX was raised as a Christian and his father was posted as third secretary of the Ethiopian Embassy in Rome under the Derg regime – which ultimately bit the dust in 1991. But in Rome, XX’s father lived apart from his family and they opted to come to the UK. XX had an unsettled childhood. He took drugs and had a criminal record for robbery and assault. However, he also had a relationship with a British woman and, in 2000, they had their first child. Weirdly having become a radical Islamist, XX travelled repeatedly to the Horn of Africa (Ethiopia, Somalia) between 2000 and 2005 and in September 2005, upon learning that his sisters and brother-in-law were arrested in connection to the failed 21 July 2005 London bombings, he flew from Somalia to Dubai and then to Ethiopia (where he remained until December 2006) after which he tried to re-enter the UK. While attempting to exit Ethiopia, XX was detained by the Ethiopian security service (NISS) for two weeks and interrogated about his visit to Somalia, the failed attacks and people connected therewith. He was subsequently released and flew to the UK.
His ILR was cancelled upon arrival because it had been decided to exclude him from the UK and he was detained and refused entry. In January 2007, XX was arrested under terrorism legislation but released without charge into immigration detention. A year later, he was granted ILR again but was simultaneously made the subject of a non-derogating control order which was finally revoked but by then the SSHD had decided that to deport XX was conducive to the public good and the present appeal arose as a result of that decision.
SIAC gave an open, a closed and a confidential judgment in XX’s case. He did not challenge the national security case, as assessed by the Security Service, against him which was embedded in his attendance of a terrorist training camp in Cumbria, association with known extremists and participation in terrorist training in Somalia.
SIAC thought that XX would not face article 3 ill-treatment upon his return to Ethiopia because of a MoU between the UK and Ethiopian governments which contained assurances that human rights obligations – in relation to accommodation, nourishment, medical, legal and other civil and human rights – under international law would be upheld and, hence, they were “satisfied that the Government of Ethiopia” would “ensure that the assurances are fulfilled”: para 22. Whilst it considered the Ethiopian Human Rights Commission to be beholden to the government, SIAC nevertheless thought that the Commission’s role as an independent monitoring body offered “a reasonable partial safeguard against breaches of the memorandum”: para 23. Therefore, following the House of Lords in RB (Algeria)  UKHL 10, SIAC was satisfied that if the assurances were fulfilled and this was, in turn, independently verified by the Ethiopian Human Rights Commission then XX would not suffer article 3 ill-treatment and the UK would not be in breach of articles 5 and 6 of the ECHR.
To summarise briefly, in RB (Algeria) the House of Lords held that the question whether assurances provided a sufficient guarantee against the risk of treatment contrary to article 3 was a question of fact. No principle of law required that such assurances needed to eliminate all such risk or that external monitoring was required. The terms on which the assurances were given and the opportunities for monitoring and the extent to which the risk would be reduced required careful evaluation, particularly in instances where such assurances were given by countries where inhuman treatment by state agents was rife.
Grounds of Appeal
In XX’s case, the SIAC’s decision was appealed on three grounds namely that (1) evidence, especially obtained by the attendance of UK Security Service officers, taken from unofficial detention centres where people were arbitrarily held incommunicado was included in proceedings; (2) SIAC erred in law as to the meaning of a “flagrant breach” of article 6 and that its findings of fact were irrational as to the meaning of the risk of prosecution; and (3) there was a failure to follow the House of Lords’ guidance as to mandatory prerequisites to be followed before a deportation pursuant to governmental assurances can be lawful and the conclusion that there would be no real risk of article 3 ill-treatment or flagrant violation of article 5 was unlawful.
The Court of Appeal
Although Richards LJ, para 78, expressed “reservations” about SIAC’s judgment, his Lordship was not persuaded that any of the grounds employed in the open hearings established an error of law.
In respect of evidence relating to individuals held in secret detention, XX’s point of departure was that an internationally acknowledged principle equivalent to a peremptory norm of general international law prohibited “secret detention” because such treatment would be “arbitrary”, “prolonged”, “unacknowledged”, and “incommunicado”. Thus, it was irrelevant that “the detention was known to, or that the detainee was visited by, the security services of a third state”: para 28. For the Court, the “shorthand” of secret detention was “convenient but its content lacked precision.” Yet the Court, para 31, was prepared to assume that the prohibition on secret detention was a peremptory norm of general international law (jus cogens).
Observing that article 53 of the Vienna Convention on the Law of Treaties 1969 provided definition to this peremptory norm of international law, from which no derogation is permitted, Richards LJ explained that such a norm prohibiting secret detention “has not been definitively recognised to date”: para 29. XX’s counsel, nevertheless, argued that the sources of law identified in article 38 of the ICJ’s statute and material associated within each category showed that secret detention is “impermissible”.
It was explained that XX sought to exclude evidence about conditions experienced during detention and the nature of the way detainees were treated but unlike A (No. 2) and Others  UKHL 71 this case was not concerned with the “fruits of torture.” Noting that the belief that the same principles in respect of torture apply to evidence obtained by any form of inhuman or degrading treatment was expressly rejected in A (No. 2), the Court found that basic human rights, the integrity of the judicial process and the rule of law were not compromised: paras 39 – 40. Thus, public confidence in the legal process was not undermined. The Court decided, subject to statutory provisions allowing judicial discretion, there was no general rule that evidence obtained by unlawful means is inadmissible in legal proceedings. A (No. 2) itself highlighted the exceptional nature of any exclusionary rule and Richards LJ was satisfied that the exceptional step of exclusion was not justified in the assumed circumstances (that secret detention is prohibited by a peremptory norm of general international law or jus cogens and the evidence in question was obtained as a result of the attendance by UK Security Service officers at secret detention facilities in Ethiopia) of this case: para 42.
The second ground of appeal – that there was the risk of a flagrant breach of article 6 – broke down into two issues. The first of these issues – whether SIAC erred in law by finding that there was no real risk that XX would be prosecuted if removed to Ethiopia and whether it should have found a real risk of prosecution – was subdivided into the evidence before SIAC in the instant case and fresh evidence which emerged in the later case of J1  UKSIAC 98/2010.
In relation to the evidence before SIAC in the present case, Richards LJ ruled that there was no risk of XX being prosecuted on his return to Ethiopia for being perceived as an active member or supporter of al-Shabaab and that SIAC was “reasonably entitled” to find that the Ethiopian authorities would not take a different view of XX from the one held “in December 2006, when they detained and interrogated him without ill-treatment and released him without charge”: para 50.
In respect of J1 (an Islamist with links to al-Qaeda and al-Shabaab who trained in Somalia and traveled to and promoted Jihad in East Africa), the Note Verbale informing the Ethiopian government that he would be deported on national security grounds also named XX as being involved in terrorism related activities. Yet, Richards LJ pointed out that “there was very limited scope” that SIAC made an error of law because the evidence in J1 was not before it in this case and was unavailable when the decision was made: para 56.
The Court rejected XX’s counsel’s reliance on the principles laid out in E and R  QB 1044 under which, subject to unfairness, a mistake of fact may amount to a mistake of law. Richards LJ did not accept that there was any unfairness in this case and considering the evidence de bene esse his Lordship ruled that fresh evidence neither established a fact on which SIAC erred nor made it unfair for SIAC to make the findings that it did: para 58. So the application to adduce the evidence was refused: para 59. The Court noted that it remained open to XX to rely on the fresh evidence to make a fresh claim under paragraph 353 of the Immigration Rules. This was a better solution “than by seeking artificially to accommodate them [the representations] within the framework of an appeal on a point of law against SIAC’s decision”: para 60.
During the closed hearings, Anuja Dhir QC (special advocate) identified that if the fresh evidence was contained in closed material, then this gave rise to the problem that the evidence could not be used in support of fresh claim representations and the special advocate would, therefore, not be able to alert their client of the existence of the material or to make fresh claim representations on his behalf: para 62. Equally, no procedure existed which allowed the use of such material in a judicial review challenge to the SSHD’s refusal to treat representations as a fresh claim.
This point was rebutted by the assertion that the SSHD would adhere to her duty to act compatibly with the ECHR but Richards LJ noted that this was not a “an adequate substitute for judicial evaluation of such material in a forensic process.” Yet, despite acknowledging Ms Dhir QC’s concerns, the Court did not extend the E and R principles to cover the situation because it would “subvert the legislative intention that appeals be limited to points of law”: para 63.
Therefore, sensibly the Court could do little in relation to closed material. But where a fresh claim could arise out of closed material, then there could be “no objection to stating that bare fact in an open judgment, thereby alerting the appellant to the possibility of a fresh claim.” Accordingly, if XX chose to make fresh claim representations, the SSHD would have “to take into account not only the representations themselves but also any relevant closed material that has become available since SIAC considered XX’s case.”
The second issue under the second ground – whether SIAC erred in law in finding that XX would not be subjected to a trial process so unfair as to amount to a flagrant breach of his right to a fair trial – turned on the stringent test contained in Othman (Abu Qatada) v UK  ECHR 56, para 260 whereby the breach of the principles article 6 “is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed”. Unfairness amounting to a flagrant breach included convictions in absentia which could not be freshly determined on the merits of the charge, summary trials totally disregarding the rights of the defence, detention without access to an impartial tribunal and deliberate and systematic refusal of access of a lawyer.
Noting that the test for the flagrant breach of article 6 was “undoubtedly a very high one” and expressing its “reservations” about SIAC’s conclusions, the Court of Appeal thought that SIAC was entitled to find that there was no real risk that XX would be prosecuted in Ethiopia: paras 65 & 66.
The Court dealt with the third ground by noting that the first part of it – that XX would not be at risk of article 3 ill-treatment during detention and interrogation in Ethiopia – was subsumed by first and second grounds. Richards LJ concluded that SIAC did not err in law or act irrationally by (i) taking evidence into account which was obtained as a result of the attendance of Security Service officers at secret detention facilities; and (ii) finding that XX would not be perceived as a threat to Ethiopia.
Yet, clarifying that arguments connected to the sufficiency of the MoU did not arise for decision, the Court expressed its “reservations” about the way compliance with the MoU would be verified. This was because SIAC acknowledged that the Ethiopian Human Rights Commission’s monitoring of XX’s case only served as a “partial safeguard” – meaning that the Commission could/would not challenge a deliberate breach by the Ethiopian government but would report on unauthorised breaches by low ranking officials. But SIAC, nonetheless, still arrived at the unqualified conclusion that the assurances were given in good faith and would be fulfilled and verified. By contrast, Richards LJ was clearly troubled by the question whether the assurances were capable of sufficiently protecting XX against article 3 ill-treatment in an environment where the Ethiopian government’s compliance with the assurances given could not be verified.
Observing that in MS (Algeria)  EWCA Civ 306 the Court of Appeal stated in terms that in RB (Algeria) the House of Lords had held that effective verification of compliance with the assurances under the MoU was an essential ingredient, Richards LJ concluded that
73. If effective verification is an essential ingredient, there is a serious problem about SIAC’s acceptance of the MoU in the present case as providing a sufficient safeguard against ill-treatment, since on SIAC’s own findings the Ethiopian Human Rights Commission was the only relevant monitoring body yet it provided only a partial safeguard, and SIAC did not spell out any alternative means of effective verification.
74. It is strongly arguable, however, that neither RB (Algeria) nor MS (Algeria) constitutes binding authority on the point, since in neither case does the point seems to have been directly in issue or the subject of specific argument; and it is notable that in MS (Algeria) the court relied for this point on a paragraph of the judgment in RB (Algeria) in which Lord Phillips was simply summarising SIAC’s judgment. Further, the Strasbourg court has not said that verification is an “essential ingredient” but has listed it as one of a number of factors to which regard will be had. Thus, in Othman (Abu Qatada) v United Kingdom, at para , the court said that its usual approach is “to assess first, the quality of assurances given and, second, whether, in light of the receiving State’s practices they can be relied upon”, and that in so doing the court will have regard inter alia to a number of factors, including “(viii) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers”.
75. It may be that, on the approach in Othman, the way SIAC dealt with the issue of effective verification, and the overall conclusion it reached on the reliability of the assurances given, are sustainable, but I confess to a degree of unease about reliance on assurances when there is an apparent gap in the means of verification of compliance and SIAC have to rely, as they appear to have done in their concluding paragraph, on the proposition that “[i]f he is detained and no contact occurs, it will be obvious that something has gone wrong”, and more generally on their finding that it was, and would be perceived by the Government of Ethiopia to be, in the interests of that Government to ensure that the assurances were fulfilled. (I note that SIAC dealt somewhat more fully with this topic in their judgment in J1′s case, at paras -, but those paragraphs are not in issue in the present appeal and we were not addressed on them.)
The Court considered the article 5 point under ground three in its private judgment.