Lord Justice Jackson:
- This judgment is in eight parts, namely:
Part 1. Introduction,
Part 2. The facts,
Part 3. The present proceedings,
Part 4. The appeal to the Court of Appeal,
Part 5. To what extent can SIAC leave issues to be resolved by the Secretary of State at a future date?
Part 6. The first ground of appeal: ECHR Article 3,
Part 7. The second and third grounds of appeal,
Part 8. Conclusion.
Part 1. Introduction
- This is an appeal against a decision of the Special Immigration Appeals Commission ("SIAC") upholding the Secretary of State's decision that the appellant should be deported to Ethiopia. The central issue is whether such deportation would constitute a breach of Article 3 of the European Convention on Human Rights ("ECHR"). The main question of law is whether SIAC was entitled to conclude that assurances given by the Ethiopian Government were a satisfactory safeguard, even though not all the arrangements for monitoring fulfilment of those assurances were in place.
- By way of background I should say something about hostile organisations in Africa. The branch of Al Qaeda which operates in the Horn of Africa is known as Al Qaeda in East Africa. I shall refer to it as "AQEA". Another Islamist extremist organisation in Africa is known as Al Shabaab. Al Shabaab has declared the ambition of establishing a caliphate in the Horn of Africa. The Ethiopian Parliament has declared AQEA and Al Shabaab as terrorist organisations.
- Ethiopia is a country with a poor record on human rights. There is only one organisation in Ethiopia which exists to monitor human rights. This is the Ethiopian Human Rights Commission ("EHRC"). The EHRC is subject to some political control and interference.
- The two provisions of the ECHR which are relevant to this appeal are Articles 3 and 6. Article 3 provides;
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
- Article 6 of the ECHR provides that everyone facing a criminal charge is entitled to a fair and public hearing within a reasonable time. The article then goes on to spell out the requirements of a fair trial.
- As is well known SIAC sometimes has to receive evidence of matters which are confidential for reasons of national security or to protect other public interests. Such evidence is received in closed hearings, at which the individual concerned is represented by one or more special advocates.
- In the present case there were both open and closed hearings. There were also two open and two closed judgments. I have read the closed judgments and the relevant parts of the closed evidence and submissions. In this judgment I shall only make reference to matters emerging from the open evidence and the open judgments. What I have read in the closed material does not undermine my conclusions. On the contrary, it reinforces those conclusions.
- The rules governing proceedings before SIAC are the Special Immigration Appeals Commission (Procedure) Rules 2003, to which I shall refer as the "2003 Rules". Rule 4 of the 2003 Rules provides:
"(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. "
- I shall refer to the Asylum and Immigration Tribunal as "the AIT". The AIT is the predecessor body of the Asylum and Immigration Chamber of the Upper Tribunal.
- I shall refer to the Convention Relating to the Status of Refugees made at Geneva in 1951 as "the Refugee Convention". Article 1A of the Refugee Convention defines a refugee as:
"Any person who
(2) … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
- Article 33 (1) of the Refugee Convention provides:
"No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
- There have been some changes of counsel since the hearing before SIAC. In this court Mr Timothy Otty QC and Ms Stephanie Harrison represent the appellant. Mr Angus McCullough QC and Ms Cathryn McGahey appear as special advocates. The appellant's counsel are pursuing an appeal against the second open judgment on a number of grounds. The special advocates are pursuing an appeal in respect of the second closed hearing on one ground. Mr Robin Tam QC and Ms Kate Grange appear for the Secretary of State. I am most grateful to all counsel for their helpful oral and written submissions.
- After these introductory remarks I must now turn to the facts.
Part 2. The facts
- The appellant is an Ethiopian national, aged 33. He came to the UK with his father, step-mother and siblings in 1990. Most of the family returned to Ethiopia in 1992, but the appellant and his sister remained in this country. Eventually, after various refusals of asylum and appeals, the appellant obtained indefinite leave to remain in the UK. He now has a wife and children in this country.
- Unfortunately the appellant has not lived peacefully in his host country. Instead he has thrown in his lot with a group of Islamist extremists, who are committed to terrorism. The appellant has been associating with the following men: Dawit Semeneh, Joseph Kebide, Nathan Oqubay, Zulgai Popal, Elias Girma Eyassu, Bilal Berjawi, Mohammed Sakr, and Walla Eldin Rahman.
- In May 2004 Semeneh and Kebide attended a training camp in Cumbria, which was run by a man called Hamid. Hamid was subsequently convicted of soliciting to murder and providing terrorism training. The training camp in May 2004 appears to have been a serious affair. Four men who were involved in the failed London bombings of 21st July 2005 attended Hamid's training camp in May 2004.
- In December 2004 the appellant and three others were found by the police at Lanark. They were all wearing plastic gloves. They said that they were on their way to Fort William. At about this time Hamid was organising a training or bonding camp near Loch Ness.
- In May 2005 Semeneh, Oqubay, Popal, Eyassu and Kebide travelled to Somalia for purposes relating to terrorism. The appellant admits that he knew about this trip, but claims he thought it was for religious purposes.
- On 21st July 2005 the appellant was in telephone contact with a man called Hussain Osman. Osman was one of five men who attempted to cause bomb explosions in London on that day. He is now serving a substantial prison sentence.
- In 2008 the UK Government wished to put in place arrangements whereby it could deport individuals associated with terrorism to Ethiopia without exposing those individuals to the risk of torture or ill treatment contrary to Article 3 of the ECHR. On 12th December 2008 the British and Ethiopian Governments signed a Memorandum of Understanding concerning the provision of assurances in respect of persons who are deported between those two countries. I shall refer to that Memorandum of Understanding as "the MOU". The MOU provided:
"A request for assurances under this Memorandum may be made by the sending state in respect of any citizen of the receiving state who is suspected or convicted of activities which may constitute a threat to national security.
Such requests will be submitted in writing by the British Embassy in Addis Ababa to the Ministry of Foreign Affairs or by the Ethiopian Embassy in London to the Home Office. The Government to which the request is made will acknowledge receipt of the request within 5 working days.
A final response to such a request will be given promptly in writing, by the Home Secretary in the case of a request made to the United Kingdom, or by the Minister of Foreign Affairs in the case of a request made to Ethiopia.
To assist a decision on whether to request assurances under this Memorandum, the receiving state will inform the sending state of any penalties outstanding against a person, and of any outstanding convictions or criminal charges pending against him and the penalties which could be imposed.
The Governments of the United Kingdom and of Ethiopia will comply with their human rights obligations under international law regarding a person in respect of whom assurances are given under this Memorandum. The assurances set out in the following paragraphs (numbered 1-8) will apply to such a person, together with any further specific assurances which may be provided by the receiving state.
Further assurances may be sought in particular in relation to a member of the armed forces facing trial before a court martial to whom assurances 3 and 7 do not apply.
An independent body ("the monitoring body") will be nominated in each country by both Governments to monitor the implementation of assurances given, including any specific assurances which may be given, under this Memorandum by the receiving state. The responsibilities of the monitoring body will include, but are not limited to, monitoring the return of, and any detention, trial or imprisonment of, the person. All findings of the monitoring body will be made available to both Governments. The methods to be employed by the monitoring body will be agreed between the two Governments and the monitoring body concerned with a view to ensuring effective verification of the assurances.
1. If arrested, detained or imprisoned following his deportation, the person will be afforded adequate accommodation, nourishment, and medical treatment, and will be treated in a humane and proper manner, in accordance with the national and international obligations of the receiving state.
2. If the person is arrested or detained, he will be informed promptly by the authorities of the receiving state of the reasons for his arrest or detention, and of any charge against him. The person will be entitled to consult a lawyer promptly.
3. If the person is a civilian and is arrested or detained, he will be brought promptly before a civilian judge or other civilian official authorised by law to exercise judicial power in order that the lawfulness of his detention may be decided.
4. Any person who is detained but who at the end of a court-supervised investigation is not charged with an offence, or is found not guilty of any offence, will be released promptly.
5. The person will have unimpeded access to the monitoring body unless they are arrested, detained or imprisoned. If the person is arrested, detained or imprisoned within 3 years of the date of his return, he will be entitled to contact promptly and in any event within 48 hours a representative of the monitoring body. Thereafter he will be entitled to regular visits from a representative of the monitoring body and, in the event of an allegation of ill-treatment, the monitoring body will have access to the person without delay.
6. The person will be allowed to follow his religious observance following his return, including while under arrest, or while detained or imprisoned.
7. If the person is a civilian and is charged with an offence he will receive a fair and public hearing without undue delay by a competent, independent and impartial civilian tribunal established by law. The person will be allowed adequate time and facilities to prepare his defence, and will be permitted to examine or have examined the witnesses against him and to call and have examined witnesses on his behalf. He will be allowed to defend himself in person or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given legal assistance free when the interests of justice so require.
8. Any judgment against the person will be pronounced publicly, but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
- Also in 2008 there was an exchange of side letters between the British and Ethiopian Governments. These side letters concerned the death penalty and the terms of the reference for the monitoring body. The Ethiopian Government nominated the EHRC as the monitoring body in Ethiopia.
- In October 2009 Berjawi, Sakr and Rahman travelled from the UK to Somalia for the purpose of terrorist training and terrorist activity in Somalia. The appellant knew in advance about the travel plans of those three men and the purpose of their expedition. During 2009 and 2010 the appellant was an important and significant member of a group of Islamist extremists in the UK, who provided support to those three men in Somalia.
- Media reporting identifies Berjawi as a close associate of Harum Fazul. Until his death in June 2011 Fazul was a, if not the, leader of AQEA. Fazul was also a close associate of the leaders of Al Shabaab. On 11th July 2010 there were twin bombings in Kampala, for which Al Shabaab claimed responsibility. It is now generally thought that that claim is well founded.
- Perhaps unsurprisingly the Secretary of State came to the conclusion that the deportation of the appellant from the UK would be conducive to the public good for reasons of national security. Accordingly on 25th September 2010 the Secretary of State notified the appellant of her decision to make an order that the appellant be deported to Ethiopia. The Secretary of State certified that decision under section 97 (3) of the Nationality, Immigration and Asylum Act 2002. The appellant was taken into immigration detention on 25th September 2010.
- In June 2011 the Ethiopian Government agreed to accept the appellant's return to Ethiopia under the terms of the MOU. This agreement was reached orally at a meeting in London on 8th June 2011 between the British Foreign Secretary and the Ethiopian Deputy Prime Minister. The Ethiopian Ministry of Foreign Affairs confirmed this agreement in a note verbale dated 10th June 2011 which it sent to the Foreign Office.
- The appellant was aggrieved by the decision to deport him. Accordingly he commenced the present proceedings.
Part 3. The present proceedings
- By a notice of appeal dated 8th October 2010 the appellant appealed to SIAC against the Secretary of State's decision to deport him. The appellant maintained that there was no justification for deporting him on grounds of national security. The appellant also maintained that the UK Government would be acting in breach of Articles 2, 3, 5, 6 and 8 of the ECHR if it were to deport him to Ethiopia.
- Mr Justice Mitting, sitting with Senior Immigration Judge Eshun and Mr S. Parker comprised the panel hearing the appellant's appeal. The panel dealt with the matter in two stages.
- In the week commencing 21st March 2011 the panel heard the appellant's appeal on the national security issues. Following the conclusion of that hearing Mr Justice Mitting on behalf of the panel delivered two separate judgments, one open and one closed. In the open judgment he upheld the Secretary of State's decision that the deportation of the appellant from the UK would be conducive to the public good for reasons of national security. In the closed judgment the judge provided supplementary findings of fact and analysis, which supported the panel's conclusions in the open judgment.
- In the week commencing 13th June 2011 the panel heard the appellant's appeal on the human rights issues. The appellant's wife gave evidence in support of the appellant's appeal. The appellant also submitted an expert report by Dr Roy Love, to deal with the risks which he would face if he returned to Ethiopia. Dr Love is a former university lecturer in social studies and economics, with special knowledge of African affairs.
- The Secretary of State called two witnesses to deal with the question of risk on return. The first was Mr Debebe Hailegebriel, an honorary legal advisor to the British Embassy in Ethiopia and a former Ethiopian High Court judge. The second witness was Mr Anthony Layden, who had retired from the Foreign Office in 2006 after serving for many years in the Diplomatic Service. It should be noted that Mr Layden had full security clearance. He was therefore present during the closed hearing and was cross-examined by the special advocates representing the appellant. Mr Debebe did not have security clearance. He gave his evidence by video link from Addis Ababa and he only participated in the open hearing.
- On 11th July 2011 Mr Justice Mitting on behalf of the panel delivered two judgments on the human rights issues, one open and one closed. In the open judgment the judge rejected the appellant's contention that deportation to Ethiopia would constitute a breach of the UK Government's obligations under the ECHR. In the closed judgment the judge provided supplementary findings of fact and analysis in support of his conclusions in the open judgment. I would summarise the judge's reasoning in the open judgment in the following nine propositions:
i) If the appellant is returned to Ethiopia, he will be of interest to the Ethiopian authorities. He will be at risk of detention and interrogation. It is possible that he will be prosecuted.
ii) Ethiopia has a poor human rights record. Absent the assurances given in the MOU, there would be a real risk that the appellant will suffer torture or ill treatment contrary to ECHR article 3.
iii) The Ethiopian Government can be trusted to comply with those assurances.
iv) The credibility of those assurances is established by reference to the four yardsticks set out in paragraph 5 of SIAC's judgment in BB v Secretary of State for the Home Department (SC/39/2005) 5th December 2006.
v) In relation to the fourth yardstick, the EHRC could not be trusted to report deliberate breaches by the Ethiopian Government. Once it has developed a proper capacity, however, the EHRC will report upon unauthorised breaches by junior officials.
vi) There is work to be done before the EHRC will have developed proper capacity for monitoring. The Secretary of State will not deport the appellant before all that work has been done. The Secretary of State has undertaken to give removal directions five days before the date of deportation. That will allow J1 sufficient time to commence judicial review proceedings, if he contends that the necessary work in relation to preparation for monitoring has not yet been done.
vii) In relation to risk of the death penalty (article 2), prison conditions (article 3), right to liberty, (article 5) and fair trial (article 6), the appellant's appeal was rejected. In each case the Ethiopian government could be trusted to comply with the assurances given.
viii) Deportation of the appellant would result in separation from his wife and children, unless they chose to relocate to Ethiopia. Thus deportation will interfere with the exercise by the appellant and his family of their rights under article 8. Nevertheless that interference is justified under the provisions of article 8.2.
ix) Deportation of the appellant from the UK would not infringe the rights of his wife and children (who are UK citizens) under article 21 of the Treaty on the Functioning of the European Union.
- In later parts of this judgment I shall refer to these elements of SIAC's judgment as "proposition (i)" "proposition (ii)" and so forth.
- In the result, therefore, SIAC upheld the Secretary of State's decision that the appellant should be deported to Ethiopia. The appellant was aggrieved by SIAC's decision. Accordingly he has appealed to the Court of Appeal.
Part 4. The appeal to the Court of Appeal
- By an appellant's notice dated 12th August 2011 the appellant appealed against SIAC's decision, upholding the Secretary of State's decision that the appellant should be deported.
- The numbering and grouping of the grounds of appeal have become somewhat complex, as new arguments were added and old arguments were abandoned or their order was re-arranged.
- I would summarise the appellant's grounds of appeal as follows:
i) SIAC erred in holding that the assurances given by the Ethiopian Government were sufficient to prevent the appellant from being subjected to ill treatment contrary to ECHR article 3. In particular, an important issue concerning verification has been left over for resolution by the Secretary of State.
ii) SIAC erred in concluding that, if the appellant is prosecuted in Ethiopia, there is not a real risk of a flagrant breach of ECHR article 6.
iii) In a number of respects the proceedings before SIAC were unfair.
- SIAC granted to the appellant permission to pursue some elements, but not other elements, of each of those grounds of appeal. Richards LJ has ordered that in so far as the appellant seeks to pursue matters for which permission was refused, these matters should be dealt with in a rolled-up hearing at the same time as the main appeal for which permission has been granted. In the result therefore the appellant's counsel have argued all the points which they wish to argue, without being constrained by the permission requirements of CPR rule 52.3.
- Likewise in this judgment I shall concentrate on the substantive issues without trying to wend my way through the procedural maze.
- The one overarching issue in this appeal is whether proposition (vi) provides a proper basis for upholding the deportation decision. This immediately raises the question of the extent to which issues raised before the tribunal can properly be left for resolution by the Secretary of State at a future date. I must, therefore, first address that question.
Part 5. To what extent can SIAC leave issues to be resolved by the Secretary of State at a future date?
- Decisions concerning asylum, risk on return to deportees and similar issues involve an evaluation of likely future events on the basis of present evidence. Such decisions will not always turn out to be correct. They represent the best that the court can do on the basis of the material presented to it. Because of the drastic consequences if those judicial decisions turn out to be wrong, both tribunals and courts adopt a cautious approach to the evidence. This approach has sometimes been described as "anxious scrutiny".
- The manner in which courts evaluate future risks to asylum seekers on the basis of present evidence was reviewed by the House of Lords in R v Secretary of State for the Home Department Ex parte Sivakumaran  1 AC 958. As explained in their lordships' speeches, the court is not considering whether it is more likely than not that the individual will suffer persecution upon return. Instead the court is determining objectively, on the basis of the existing circumstances in the relevant country, whether there is a reasonable degree of likelihood that the individual will suffer persecution.
- In Ravichandran v Secretary of State of the Home Department  Imm AR 97 the Court of Appeal described the court's evaluative exercise in broadly similar terms. Staughton LJ observed at page 114 that the Immigration Appeal Tribunal "manifestly looks to the future at the date of the appeal". Simon Brown LJ, stated at pages 112-113 that the appellate structure should be regarded as an extension of the decision making process. Thus the appellate tribunal would have to take account of events which had occurred since the date of the original decision.
- Statements of the Secretary of State's intention may form part of the evidence which tribunals or courts take into account when assessing the question of risk on return. This is exemplified by the Court of Appeal decision in Gardi v Secretary of State for the Home Department  EWCA Civ 750,  1 WLR 2755.
- In Gardi the applicant was a national of Iraq and ethnically a Kurd. He had lived in Northern Iraq within the Kurdish Autonomous Region, which had devolved powers of self government but which continued to be in violent conflict with the government of Iraq. In August 2000 he entered the United Kingdom illegally and applied for asylum. The application was refused and directions were given for his removal to Iraq at a time and place to be notified. A series of appeals by both parties followed, the details of which I need not recite. The evidence showed that Mr Gardi would be safe in the Kurdish Autonomous Region, but he would be at risk of serious persecution if returned to Iraq by way of Baghdad. At that stage the only available means of return was via Baghdad. When this case reached the Court of Appeal the Secretary State gave the following undertaking:
"Consistent with the statement approved by the then Minister of State, the Secretary of State confirms that he will not seek to enforce the removal of any failed Iraqi asylum seeker to the Kurdish Autonomous Zone (KAZ) of northern Iraq unless satisfied that he is able to do so without breaching obligations under the Refugee Convention and the Human Rights Act 1998. The Secretary of State will be mindful of these obligations in considering not only conditions in the KAZ itself but also the route of return to the KAZ. For the avoidance of any doubt the Secretary of State also confirms that he will not for the time being enforce return of any failed Iraqi asylum seeker either to or via territory controlled by the Iraqi government. Subject to the above, it is the Secretary of State's intention to effect removal as soon as it is practicable to do so."
- The Court of Appeal held that, absent the Secretary of State's undertaking, Mr Gardi would be entitled to protection under Article 33 of The Refugee Convention: see paragraph 33 of the judgment of Keene LJ with which Sir Martin Nourse and Ward LJ agreed. The court went on to hold, however, that in the light of the Secretary of State's undertaking, Mr Gardi would not be exposed to danger in the course of return. Furthermore his home area was safe. Therefore Mr Gardi did not qualify as a refugee. (It subsequently transpired that the English courts did not have jurisdiction in this appeal, because the proceedings originated in Scotland. This technical flaw does not affect the Court of Appeal's reasoning and is not relevant for present purposes.)
- Although an undertaking by the Secretary of State is relevant evidence for the court to take into account, this does not obviate the need for the tribunal to consider the extent of the relief to which the individual is entitled. In MS (Ivory Coast) v The Secretary of State for the Home Department  EWCA Civ 133 the appellant sought discretionary leave to remain in reliance on ECHR article 8. At the relevant time she was pursuing proceedings in the family courts in order to obtain rights of contact with her children. The Secretary of State stated that he would not issue removal directions, so long as the contact proceedings were in progress and provided that the appellant prosecuted them with due diligence. The AIT held that, in the light of the Secretary of State's assurances, the appellant had no entitlement to discretionary leave to remain. The Court of Appeal, comprising Lord Phillips CJ, Scott Baker and Thomas LJJ, allowed the appellant's appeal and remitted the case to the AIT for reconsideration. Scott Baker LJ, delivering the judgment of the court, said that the AIT should deal with the claim for discretionary leave to remain on the basis of the current evidence. The tribunal might decide to direct the grant of leave to remain for a limited period, which could be extended if necessary.
- It may be thought that the distinction between Gardi and MS is quite a fine one, but the two cases must be reconcilable. In my view the reconciliation is this. Any assurance or undertaking which the Secretary of State gives is a relevant factor for the court or tribunal to take into account. Such an assurance or undertaking cannot, however, operate so as to cut down the legal protection to which the individual is entitled. This analysis is consistent with the reasoning of the Court of Appeal in a case the following year, CL (Vietnam) v Secretary of State for the Home Department  EWCA Civ 1551,  1 WLR 1873.
- In CL the claimant arrived in the UK as an unaccompanied child and claimed asylum. The Secretary of State refused his claim. An immigration judge allowed the claimant's appeal on the basis that there were not adequate reception facilities for the claimant in his home state. The Secretary of State appealed to the AIT. The Secretary of State gave an undertaking that he would not return the claimant to Vietnam, unless he was satisfied that the reception facilities were adequate. The AIT allowed the Secretary of State's appeal and the claimant appealed to the Court of Appeal. The Court of Appeal allowed the claimant's appeal. Keene LJ gave the lead judgment, with which Sedley and Smith LJJ agreed.
- Keene LJ reasoned as follows. The tribunal must adjudicate upon the claimant's claim on the current evidence. It must answer the hypothetical question, what would happen if the claimant were to be returned to Vietnam? In considering that question the tribunal should disregard the fact that the claimant will not actually be removed until some future date (see paragraph 19). The Secretary of State's undertaking does not provide a proper basis for rejecting the claimant's claim in so far as it was based on article 8 of ECHR. The core of Keene LJ's reasoning appears at paragraph 23 as follow:
"I cannot accept that argument. The Secretary of State is not giving a guarantee that the reception conditions in the home country will in fact be adequate if removal is decided upon, but only that the Secretary of State considers them to be so. The conclusion at which she arrives may be right or wrong but, as Mr Hyam concedes, it is a conclusion which could only be challenged by judicial review, albeit applying anxious scrutiny, and not by statutory appeal. Certainly that will be the case where, as here, removal directions have been given. That means the effect of the procedure being advocated is to remove the child's statutory right of appeal on that aspect of the article 8 claim, and to leave him or her only with the more limited remedy of judicial review. The immigration judge, if adopting the BV (Vietnam) approach, would in effect be delegating to the Secretary of State the decision on this part of the article 8 appeal, a very important part of it in the case of an unaccompanied child, and denying the appellant his or her statutory entitlement to a full appeal process. That cannot be right."
- SH (Iraq)  EWCA Civ 462 was another asylum claim concerning an Iraqi Kurd who came from the northern region of Iraq. Keene LJ, in a judgment with which Ward and Lawrence Collins LJJ agreed, dismissed the appellant's appeal. One of the appellant's arguments (first raised in the Court of Appeal) was that there was no practicable and safe route by which he could be returned to Northern Iraq. Keene LJ dismissed this argument for two reasons. First the appellant had raised the argument too late in the day and there were no relevant findings of fact made by the immigration judge. Keene LJ formulated the second reason as follows in paragraph 22 of his judgment:
"No removal directions have yet been settled for the appellant's return, and it is therefore unclear as to how and where he would be returned. The issue of accessibility, its safety and its practicality cannot therefore yet be judged in any meaningful sense. Those issues will of course change over time as well as being dependent upon the method and location to which return is to be effected. If, when those removal directions are set, there would be a real risk of this country breaking its obligations under the Refugee Convention or the ECHR because of those directions, they themselves could then be challenged but there is nothing it seems to me in this particular point."
- It can be seen that SH differs from Gardi, MS and CL in an important respect. The court was not relying on any undertaking by the Secretary of State. The court was instead leaving for later resolution by the Secretary of State an issue which the appellant had raised at a late stage in the proceedings. Keene LJ added that if the Secretary of State did not address the matter properly, his future decision could be challenged by judicial review. In my view the Court of Appeal's decision in SH, upon which Mr Tam places reliance can readily be reconciled with MS and CL, upon which Mr Otty relies.
- HH (Somalia) v SSHD  EWCA Civ 426 concerned the return of four individuals to Somalia. One of the issues concerned safe route of return. The court held that where the actual route and method of return were known, the AIT could not hive off the consideration of what risk was involved. If there was a challenge to the safety of the route or method of return, the AIT was required to consider and determine that issue. See paragraphs 56-58, 62-63, 81 and 122 of the judgment of the court.
- The principles which emerge from the above line of authority are the following:
i) In cases where the claimant seeks asylum or a right to remain in the UK on human rights grounds, the court or tribunal must determine that claim on the basis of current evidence.
ii) Where the claim is based upon dangers confronting the claimant in their home state, that determination involves an assessment of what will happen, or what there is a real risk of happening, in the future.
iii) In determining the claim the court or tribunal will take into account any undertaking or assurance given by the Secretary of State, in so far as it is relevant to the issues under consideration.
iv) Such an assurance or undertaking cannot cut down the legal protection to which the claimant is entitled.
v) If the route or method of return is unknown, the court or tribunal may in appropriate cases leave this matter for later decision by the Secretary of State. If the Secretary of State fails to address the matter properly, the claimant's remedy is by way of making a fresh claim or bringing judicial review proceedings.
vi) The court or tribunal cannot, however, delegate to the Secretary of State the resolution of any material element of the legal claim which the claimant has brought before that court or tribunal for determination.
- Aided by this review of the authorities, I must now turn to the first ground of appeal, which is based upon ECHR article 3.
Part 6. The first ground of appeal: ECHR article 3
- J1 contends that if he is returned to Ethiopia, he is liable to be detained and interrogated pending possible prosecution. On the basis of SIAC's findings of fact this is indeed the case.
- J1 further contends that there is a real risk that he will suffer torture or ill treatment contrary to ECHR article 3 during that period. It can be seen from propositions (ii) and (iii) that SIAC rejected this contention because, and only because, SIAC was satisfied that the Ethiopian Government and the junior officials dealing with the appellant would comply with the assurances contained in the MOU. In reaching this conclusion Mr Justice Mitting referred to the four yardsticks set out in BB v Secretary of State for the Home Department (SC/39/2005) 5th December 2006 at paragraph 5.
- Those four yardsticks are as follows:
"(i) the terms of the assurances must be such that, if they are fulfilled, the person returned will not be subjected to treatment contrary to Article 3;
(ii) the assurances must be given in good faith;
(iii) there must be a sound objective basis for believing that the assurances will be fulfilled;
(iv) fulfilment of the assurances must be capable of being verified."
- It was common ground that the first yardstick was satisfied. SIAC gave solid reasons for concluding that the second and third yardsticks were satisfied. These reasons included the excellent record of the Ethiopian Government in complying with bilateral agreements and the strength of the relationship between the British and Ethiopian Governments. There is no basis upon which this court could disturb those assessments made by SIAC.
- In relation to the fourth yardstick, the relevant monitoring body in Ethiopia was the EHRC. SIAC found that the EHRC could not be trusted to report upon deliberate breaches of the assurances in the MOU by the Ethiopian Government. That did not matter, because there would be no such breaches.
- The real problem in SIAC's view concerned possible breaches by junior officials, acting without the authority of the Government. The EHRC would report such breaches if it detected them. At the time of SIAC's decision, however, the EHRC was under-staffed and inadequately trained. Furthermore the junior staff who might have dealings with the returned deportees did not know what was expected of them. SIAC concluded that these matters were not an obstacle to deportation.
- The core reasoning of SIAC on this issue is contained in paragraph 15 of Mitting J's judgment, which I shall quote in full:
"Mr Otty submitted that the fact that those steps still required to be taken meant that J1's appeal had to be allowed on safety on return grounds: if J1 were to be deported tomorrow, the British Government would be in breach of its obligations under Article 3 ECHR, because necessary steps to ensure the effectiveness of verification would not then be in place. The practical answer is that given by Mr Layden: it is unlikely that, whatever the outcome if this appeal, J1 will be deported very soon. The principled answer is that it is not necessary that everything must be in place at the date on which the appeal is decided. SIAC is engaged in an exercise in forecasting: that it will, or will not, be possible for the United Kingdom to deport J1 to Ethiopia without breaching its obligations to him under Article 3 ECHR. The steps which remain to be taken are substantially under the control of the British Government: it has commissioned the consultancy which is overseeing the training of monitors and contributes substantially towards the cost of doing so. Its officials, in particular its embassy staff, will make a judgment about two significant matters: whether the Ethiopian Government has taken effective steps to ensure that junior officials know about and will comply with the assurances given by the government; and whether or not the members of EHRComm have been sufficiently trained to perform their monitoring and reporting tasks effectively. As a matter of law, SIAC is entitled to make its decision on the premise that both of those conditions will be fulfilled. If they are not – or, more accurately, if there are credible grounds for believing that they have not been – J1 could request the Secretary of State to reconsider her intention to deport him under paragraph 353 of the Immigration Rules. If, without good reason, she refused to treat the representations as giving rise to a fresh claim, her decision would be open to challenge by judicial review. On a successful challenge or a decision by the Secretary of State that failure to fulfil those obligations gave rise to a fresh claim, a fresh appeal on the merits would lie to SIAC. In practice, it is extremely unlikely that such a situation would arise, because it is in the interests of the British Government, as much of that of J1 and of the Ethiopian Government, that effective monitoring arrangements should be in place at the point of removal. To ensure that J1 has an adequate opportunity to challenge the facts at that point, the Secretary of State has, by Mr Kovats QC, stated (ie undertaken) that removal directions will be notified at least five working days before the intended day of removal, together with an explanation of the steps taken to ensure that everything is in place for effective monitoring of the carrying out of the Ethiopian Government's assurances."
- Mr Otty submits that this reasoning is flawed. SIAC cannot delegate to the Secretary of State the decision whether these matters have been satisfactorily dealt with. Furthermore the proposed remedy of judicial review will not be satisfactory, because the scope of judicial review is more limited than a statutory appeal and there is no procedure for closed hearings or special advocates in the context of judicial review.
- Mr Tam maintains, first, that on the authorities an effective system of verification is not a mandatory prerequisite: see RB (Algeria) v Secretary of State for the Home Department  UKHL 10,  2 AC 110 at paragraphs 123-125 (per Lord Phillips) and paragraph 193 (per Lord Hoffmann); MS (Algeria)  EWCA Civ 306; Ahorugeze v Sweden  55 EHRR 2. Secondly, Mr Tam submitted that the matters left over for later resolution by the Secretary of State are of a kind that can properly be dealt with after SIAC's decision. This does not involve any delegation of decision making by SIAC.
- As to the first point, I agree that in many cases an effective regime of monitoring is not required. In the present case, however, SIAC held that having regard to Ethiopia's human rights record such a regime was required. In my view SIAC was fully entitled to reach that conclusion and this court should not disturb it.
- I turn now to Mr Tam's second submission. In relation to this issue I must apply the principles set out in Part 5 above. In my view SIAC was not entitled to conclude that deportation of the appellant to Ethiopia would be compliant with ECHR article 3 on the basis set out in paragraph 15 of Mitting J's judgment. I reach this conclusion for four reasons:
i) Whether or not the EHRC was competent to monitor the conduct of junior officials was one of the questions for determination by SIAC. SIAC could not delegate the decision on that issue to the Secretary of State or the British Embassy in Addis Ababa.
ii) SIAC was obliged to determine that issue on the basis of the current evidence. On the basis of that evidence the proper answer to that question would have been along these lines: the EHRC is not at the moment competent to monitor the conduct of junior officials; it may or may not become so in the future.
iii) The proposed remedy of judicial review would be unsatisfactory for two reasons. First, it would not involve the same level of scrutiny as an appeal to SIAC. Secondly, there is no procedure for closed hearings or special advocates in the context of judicial review. See Al-Rawi v Security Service  UKSC 34,  1 AC 531. Therefore the appellant would be prejudiced if he were forced to litigate the issues concerning the EHRC and junior Ethiopian Officials in judicial review proceedings.
iv) SIAC was entitled to take account of the Secretary of State's undertaking. SIAC erred, however, in allowing the Secretary of State's undertaking in effect to cut down the legal protection to which the appellant was entitled.
- I therefore conclude that the judge fell into error in paragraph 15 of his judgment. SIAC ought to have held that deportation of the appellant to Ethiopia would constitute a breach of ECHR article 3.
- The appellant also advances a separate argument to the effect that, if he is convicted in Ethiopia, the prison conditions under which he would serve his sentence are so bad as to constitute a breach of article 3. SIAC rejected that argument for the reasons set out in paragraph 19 of Mitting J's judgment. Although the appellant criticises that decision, I see no basis for disturbing it.
- Let me now draw the threads together. For the reasons set out above I would uphold the appellant's first ground of appeal on the basis that SIAC was not entitled to find that fulfilment of the Ethiopian Government's assurances was capable of being verified.
- Since the appellant has succeeded on his first and principal ground of appeal, I shall deal more briefly with the remaining grounds of appeal where, in my view, the appellant faces greater difficulties.
Part 7. The second and third grounds of appeal
- The second ground of appeal is based upon ECHR article 6. The appellant contends that if he is prosecuted, there is a real risk that his trial will fall so far short of proper standards as to constitute a flagrant breach of ECHR article 6.
- The Strasbourg Court has made clear that the test for establishing a breach of article 6 in these circumstances is a stringent one. See Mamatkulov and Askarov v Turkey (2005) 41 EHRR 25 at paragraph O-III 14 and Othman v UK (2012) 55 EHRR 1 at paragraphs 258-262.
- SIAC concluded that the Ethiopian Government would not risk ruining its relationship with the UK Government by reneging on assurance number 7 contained in the MOU. In my view that assessment made by SIAC on the basis of the evidence before it is impregnable.
- The appellant complains that SIAC focused solely on the question whether the appellant would be forced to make a confession under torture. I reject this criticism. SIAC were right to consider this issue. Nevertheless it is clear from paragraphs 20 and 21 of the judgment that SIAC considered the article 6 issue more broadly.
- I reject the second ground of appeal.
- I turn now to the third ground of appeal. The appellant alleges that in certain respects the proceedings before SIAC were unfair. First, the appellant says that when his solicitors were gathering evidence in Ethiopia they were unable to give any absolute guarantee of confidentiality. Since then, however, the Supreme Court has held that SIAC has power to make an irrevocable and absolute confidentiality order: see W (Algeria) v Secretary of State for the Home Department  UKSC 8,  2 AC 115.
- There are two answers to this complaint. The first answer is that the appellant's case was prepared on the basis of the law as it then stood. The appellant is not entitled to more than that. The second answer is that SIAC's decision is being quashed on the basis of the appellant's first ground of appeal. The appellant will therefore have a chance to gather any further evidence which he seeks with the benefit of the Supreme Court's recent elucidation of the law.
- The appellant's second complaint under the rubric of ground 3 is that his special advocates were not permitted to cross-examine Mr Debebe during the closed hearing. Nor were they permitted to put closed material to him.
- The reasons why this facility was not afforded to the special advocates are twofold. First, Mr Debebe was giving evidence by video link, which is not a secure medium. Secondly, Mr Debebe had not obtained the necessary security clearance.
- The Secretary of State suggested a practical resolution to the problem, namely that the special advocates could submit, in writing, their proposed questions in advance of the hearing so that they could be appropriately security checked and cleared for use in the open session. The special advocates refused to accept this proposed course of action.
- Instead, the special advocates prepared a list of "topics" on which they might wish to question Mr Debebe. That list was provided to SIAC, but not to the Secretary of State's representatives, at a preliminary closed hearing on 13th June 2011 (shortly before the substantive hearing was due to commence on 14th June 2011).
- Having reviewed the topics submitted by the special advocates, the chairman of SIAC concluded that most of those topics were either (1) irrelevant (given the evidence previously given by Mr Debebe in cross-examination) or (2) would be covered as part of the open evidence in any event. However, SIAC identified one topic upon which it invited the special advocates to formulate open questions which could then be submitted for security checking. However, the special advocates refused the invitation to prepare any such questions. At a closed hearing on 14th June they indicated that it was "not in J1's interest" to do so.
- In those circumstances the proceedings continued without the special advocates formulating any questions to be put to Mr Debebe.
- The appellant complains that this procedure was unfair in two respects. First, his special advocates ought to have been allowed to cross-examine Mr Debebe in the closed hearing. Secondly, in the alternative, Mr Debebe's evidence ought to have been excluded.
- I do not consider that the proceedings were unfair in either of those respects. Mr Debebe was, essentially, giving evidence about conditions in Ethiopia and the Ethiopian legal system. In so far as he dealt with J1's case in ignorance of relevant matters, the special advocates were well able to point that out to the tribunal during the closed session. Furthermore the special advocates were entitled to and did cross-examine Mr Layden during the closed hearing.
- It is quite true, as the appellant points out, that the 2003 Rules confer a right on special advocates to cross-examine witnesses. This is contained in rule 44 (5A). on the other hand that rule is subject to the overriding provisions of rule 4, which have been set out in Part 1 above.
- The appellant makes a separate complaint about SIAC's judgment. He contends that having regard to the lack of cross-examination by the special advocates, SIAC placed too much weight on Mr Debebe's evidence. I do not accept that submission. SIAC heard Mr Debebe cross-examined at the open hearing by Mr Otty. SIAC was also in possession of the closed material which Mr Debebe did not see. SIAC also heard the special advocates' submissions concerning the impact of that closed material on Mr Debebe's evidence. Questions of weight are for SIAC, not for this court.
- In the result, therefore, I do not accept that the proceedings before SIAC were unfair in any of the respects alleged.
- In reaching my conclusions on the second and third grounds of appeal, I have taken into account the closed material as well as the open material. I have also taken into account the submissions made by the special advocates during the closed hearing in the Court of Appeal. During that hearing it emerged that the special advocates had no satisfactory answer to the points mentioned above.
- In the result, therefore, I would reject the second and third grounds of appeal.
Part 8. Conclusion
- Let me first tie up some loose ends. I would grant permission to the appellant to argue all those grounds in respect of which he makes a renewed application for permission to appeal. In relation to the matters set out in paragraphs 6 (b) and (c) of the amended grounds of appeal, the appellant accepts that these grounds must be dismissed but he reserves the right to seek to pursue these grounds in the Supreme Court. So be it. At this level of the judicial hierarchy those grounds of appeal must be dismissed.
- Turning to the main grounds of appeal, if My Lords agree, the appellant's appeal will be allowed on the first ground. The second and third grounds of appeal will be dismissed. In the result, therefore, the appellant succeeds in this appeal and the decision of SIAC dismissing the appeal is reversed.
- I should add that this is a decision which I reach with little enthusiasm. The appellant has been closely associating with Islamist extremists who are involved in terrorism. Such people show scant regard for the rights to life of others. I have no doubt that the Secretary of State was entitled to conclude that the appellant's deportation was conducive to the public interest on national security grounds. The fact remains, however, that the UK is party to the ECHR and has incorporated its provisions into our domestic law. Everyone within our shores is entitled to protection under the ECHR, even those who are involved in or connected with terrorism. The courts are under a duty to uphold those rights and we do so in this case.
Lord Justice Elias:
- I agree that the appeal should be upheld on the single ground identified by Jackson LJ, namely that on the findings SIAC made the only conclusion open to them was that the return of the appellant to Ethiopia would subject him to a risk of persecution which would infringe Article 3 of the European Convention. Since we are overturning a very experienced judge on this issue, I would like to explain my reasons in my own words gratefully drawing upon the facts set out by Jackson LJ.
- The fundamental constitutional principle is that it is for the court to determine whether a refusal by the Secretary of State to grant asylum will involve a breach of the asylum seeker's rights under the Human Rights Convention. This is not simply a Wednesbury review of the Secretary of State's decision. In any Article 3 case the court is answering the hypothetical question whether the applicant would face a real risk of persecution on return; the court must assess that risk on the basis of the evidence before the court at the time of its determination.
- There are three reasons why it is in principle wrong for the court to allow the Secretary of State to determine any element of the asylum claim. First, it involves an unlawful delegation of the judicial function allowing the executive to determine matters falling within the jurisdiction of the courts. Second, it means that the case will be determined not on the basis of the evidence before the court but on speculation as to what the facts are likely to be at some time in the future. Third, it leaves the asylum seeker in an unacceptable state of limbo pending the future clarification of his status. He is technically illegally in the country and yet he is unable to return to his home state until further steps have been taken sufficient to guarantee his safety. If he is entitled to refugee status or protection from removal on human rights grounds, even if only on the basis that he should be given leave to remain for limited duration, he ought to be given that status or protection from removal at least for the period when his safety is potentially compromised.
- The first principle is exemplified in the CL (Vietnam) case to which Jackson LJ has referred. The question was whether reception facilities in Vietnam for an unaccompanied child were adequate; if not, it was accepted that the Secretary of State would be in breach of Article 8 if the child were to be returned there. An assurance by the Secretary of State that he would only return the child once he was satisfied that appropriate reception arrangements were in place was not a satisfactory answer to the Article 8 claim. My Lord has set out paragraph 23 of the judgment of Keene LJ which finds that accepting the assurance of the Secretary of State involved an unlawful delegation of the court's judicial function, and I will not repeat it. This was so notwithstanding that the court recognised the practical benefits of the arrangement. I would also draw attention to paragraphs 18 and 19 of the decision in which the court confirmed the second and third principles to which I have referred:
"… It is well established that the immigration judge, when dealing with human rights issues and indeed asylum issues, is concerned with evidence about the situation as put before him at the time of the hearing. He may receive evidence not before the Secretary of State when the original (Home Office) decision was made, and he may receive evidence on "a matter arising after the date of the [Home Office] decision": section 85(4) of the Nationality, Immigration and Asylum Act 2002. That embodies a long standing approach adopted by the courts, an approach which recognises that this is indeed an appeal process, rather than one of judicial review concerned only with the propriety of the original decision in terms of the evidence as it was before the original decision-maker: see Ravichandran v Secretary of State for the Home Department  Imm AR 97.
Even where there is no foreseeable prospect of removal the AIT is still required to determine any human rights claim that may be raised before it relating to the impact that removal may have on the claimant: JM (Liberia) v Secretary of State for the Home Department  Imm AR 293, para 28. This may involve a degree of hypothetical reasoning, as the courts have several times emphasised, because one is looking at what would be the situation if the claimant were to be returned: Saad v Secretary of State for the Home Department  Imm AR 471, para 57. The fact that the removal of the claimant may only take place at some time in the future does not relieve the immigration judge of his burden of making a decision on the human rights claim. "
- The application of the second and third principles is also exemplified in the decision in MS (Ivory Coast) case, referred to by Keene LJ in the passage quoted. The issue was whether the appellant, a woman who was pursuing proceedings to establish contact with her children, would have her rights under Article 8 infringed if she were to be returned to the Ivory Coast. The Secretary of State gave an assurance that she would not be removed whilst she was pursuing her case expeditiously. The question was whether this was an effective answer to her Article 8 claim. The Court of Appeal held that it was not. The court considered a number of earlier Court of Appeal authorities, including JM v Secretary of State for the Home Department  EWCA Civ 1402 and the Afghan Hijacking case  INLR 116, noting that in the latter case the court had in terms accepted the principle that if removal would be contrary to the Geneva Convention, an applicant for asylum is entitled to succeed even though the Secretary of State has no current ability or intention of removing him. Lord Justice Scott Baker, with whose judgment the Lord Chief Justice and Thomas LJ concurred, summarised the position as follows (para 72):
"The appellant was entitled to have determined whether removal from the United Kingdom with an outstanding contact application would breach s 6 of the Human Rights Act 1998. That question was capable of resolution one way or the other. What was not appropriate was to leave her in this country in limbo with temporary admission and the promise not to remove her until her contact application has been concluded. Temporary admission is, as we have explained, a status given to someone liable to be detained pending removal. If the appellant had a valid human rights claim she is not liable to be detained pending removal. And if she has not, she ought to be removed. If she is entitled to discretionary leave to remain she ought to have it for the period the Secretary of State thinks appropriate, together with the advantages that it conveys; and if not she ought not to."
The court identified the advantages as the entitlement to work, to receive benefits, and the opportunity to apply for leave to be extended.
- In my judgment, the decision of SIAC in this case infringed each of these principles. I see no proper basis for distinguishing this case from CL (Vietnam). There can be no doubt that at the time SIAC made its decision, it was not safe for the appellant to be returned to Ethiopia. The conditions necessary to ensure that an acceptable Memorandum of Understanding ("MOU") was in place had not been met to the satisfaction of the court and therefore there was an unacceptable risk of persecution on return. A key factor in the assessment of risk, namely when and whether the Ethiopian Human Rights Commission could effectively monitor the activities of junior officials, had been left for the Secretary of State to determine at a later stage.
- The Secretary of State contends that there is nothing untoward in SIAC's approach. Mr Tam QC submits that, properly analysed, the court had decided the case by reference to present facts which included SIAC accepting, on the balance of probabilities, that in the near future the conditions necessary to establish an effective MOU would be secured. There was nothing left for later resolution by the Secretary of State. The court was merely accepting an undertaking by the Secretary of State that he would not return the appellant until the safeguards were in place.
- I do not accept that submission. First, in accepting the undertaking the court was denying the appellant the right to have his status determined. Second, by leaving the Secretary of State to determine whether and when the conditions precedent to an effective MOU had been achieved, SIAC was not simply acting on the assumption that the Secretary of State would honour an undertaking. It was permitting the Secretary of State unilaterally to decide when return would be safe and thereby also to determine when his undertaking could be discharged.
- Mr Tam also contends that the position here was no different in nature from decision making by the Secretary of State in every human rights and asylum claim. I reject that submission also. As the appellant points out, the usual position is that the Secretary of State makes a determination which, if it is to refuse asylum, is then subject to the statutory right of appeal. Here he is making a determination which is inextricably linked to the question of safety on return – the very question which SIAC has to decide - and yet is not itself subject to any further right of appeal. It will be subject only to judicial review, unless the Secretary of State accepts that the circumstances amount to a fresh claim giving rise to fresh appeal rights. Moreover, as Jackson LJ points out, the closed procedure will not be applicable.
- Mr Tam submits that his case is supported by the decision of the Court of Appeal in Gardi v Secretary of State for the Home Department  1 WLR 2755. The position in that case was that the AIT found that the applicant asylum seeker could live safely in his home territory in the Kurdish autonomous region of Iraq. The Court of Appeal held that accordingly he was not a refugee as defined by Article 1A of the Geneva Convention because he had no well founded fear of being persecuted in his own country. The court accepted, however, that it would nonetheless be a breach of the Geneva Convention and of Article 3 of the Human Rights' Convention to send him back because the only way of returning him was via Baghdad and it was conceded that this would place him at risk of persecution. However, the Secretary of State had undertaken not to send him back to the Kurdish autonomous region until a safe method of return was available. Keene LJ held that "the removal directions have to be read in the light of the undertaking given on behalf of the Secretary of State" and that accordingly he could not have a legitimate fear that he would be returned and persecuted.
- Mr Tam submits that there is a direct analogy with this case: the Secretary of State has undertaken not to send the appellants back unless and until satisfied that the MOU can be effectively enforced and the conditions specified by SIAC are met.
- I do not consider that the Gardi case assists the Secretary of State for two reasons. First, questions of the risks arising from the route of return are quite distinct from the question whether in principle the asylum seeker would be safe in his home territory. Frequently the route of return is unknown at the time when the asylum status of the applicant is being considered because removal directions have not been set, and the court cannot then engage with the question whether the method of return of itself poses an unacceptable risk to the applicant. SN Iraq (referred to by Jackson LJ at para 51 above) is such a case, and other cases to like effect include GH v Secretary of State for the Home Department  EWCA Civ 1182 and Gedow v Secretary of State for the Home Department  EWCA Civ 1342. As Jackson LJ points out, they are not cases where the courts are relying on any undertaking from the Secretary of State; they are cases where the route, and therefore the risks, are not yet known and cannot be assessed. Nor is the court delegating to the Secretary of State the right to make a decision relevant to the question whether the applicant should in principle be granted refugee status or leave to remain on human rights grounds.
- Second, and in any event I do not think that the analysis in Gardi can now be sustained in the light of subsequent jurisprudence. It fails to respect the third principle I have set out in paragraph 97 above, namely that an applicant for asylum is entitled to have his or her status properly considered.
- This principle was again confirmed in the most recent authority on route of return, HH (Somalia) v Secretary of State  EWCA Civ 426, in which the Court of Appeal held that where safety on return is an issue raised by the applicants, the court should determine it. Sedley LJ, giving the judgment of the court (Sedley, Smith and Elias LJJ), after considering various route of return cases, including GH and Gedow, to which I have referred, observed (para 58):
"… in any case in which it can be shown either directly or by implication what route and method of return is envisaged, the AIT is required by law to consider and determine any challenge to the safety of that route or method."
- The court noted in this regard that the intention of the Qualification and Procedures Directives (EU instruments dealing with the position of refugees) appears to be that the Secretary of State should make a decision on entitlement to refugee status within a reasonable time of the application being made. This is inconsistent with accepting the general undertaking from the Secretary of State that he or she will not remove the asylum seeker until it is safe to do so. Moreover, the court in HH went on to express the provisional view, obiter, that if there is a real issue on safety of return, the Secretary of State should engage with that question and identify what the proposed route will be so that it can be challenged on appeal.
- In view of these developments, in my judgment, Gardi is no longer good law on this point. It is not now legitimate to deny an applicant leave to remain in this country, if only for a limited period, on the grounds that an undertaking of the Secretary of State will ensure that his or her safety is not put at risk.
- It is not in fact necessary formally to distinguish the Gardi case since the decision was made without jurisdiction as the court later recognised: see  1 WLR 3282. It was a case emanating from a Scottish adjudicator and the appeal should have been heard in the Court of Session rather than the Court of Appeal; so it has no precedent value. Even if it had, I would not follow it in the light of the later jurisprudence.
- I do not doubt that in some cases the court may take comfort from an undertaking by the Secretary of State. For example, if one route is safe and the other not, an undertaking by the Secretary of State not to use the unsafe route would justify a court concluding that Article 3 would not be infringed on return. But it is of limited significance because even without the undertaking, the court ought to assume the Secretary of State would act in accordance with Convention obligations, as Hooper LJ pointed out in Gedow (paras 32 and 125). The undertaking enables the court to make that assumption with confidence.
- In my view, therefore, the route of return cases are not directly relevant to the issues before us and in any event provide no support for the Secretary of State's case. The question here is whether, in the determination of the primary issue whether the appellant would be at risk on return to Ethiopia, SIAC has wrongfully delegated the determination of part of that question to the Secretary of State. I am satisfied that it has, and that if it had asked itself whether at the time of its decision the appellant could be safely returned, the only possible answer was that he could not. Accordingly, I uphold the appeal on this point.
- I would, however, reject the appeal on all other grounds for the reasons given by Jackson LJ.
Lord Justice Treacy:
- I too agree that this appeal should succeed on the ground set out at paragraph 38(i) of Jackson LJ's judgment. There was in reality at the time of the SIAC hearing an unacceptable risk of persecution on return contrary to Article 3. It was in my view wrong for SIAC in effect to leave the ultimate decision as to whether return would be safe to the Secretary of State where the Appellant had brought the issue before SIAC for determination, and in circumstances which would have the result of cutting down the Appellant's rights.