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), (2009)

 
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HOUSE OF LORDSSESSION 2008-09[2009] UKHL 10 on appeal from: [2007]EWCA Civ 808[2008] EWCA Civ 290OPINIONSOF THE LORDS OF APPEALFOR JUDGMENT IN THE CAUSERB (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 CommitteeLord Phillips of Worth MatraversLord HoffmannLord Hope of CraigheadLord Brown of Eaton-under-HeywoodLord ManceCounselAppellant (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 QCTime 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-GillRaza 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 QCMark Henderson, Michelle Butler(Instructed by Liberty) Hearing dates:23, 27, 28, 29 and 30 OCTOBER 2008ONWEDNESDAY 18 FEBRUARY 2009HOUSE OF LORDSOPINIONS OF THE LORDS OF APPEAL FOR JUDGMENTIN THE CAUSERB (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 10LORD PHILLIPS OF WORTH MATRAVERSMy Lords,Introduction1.  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. Background4.  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 States decision did not constitute theeffective remedy required by Article...

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