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You are here: BAILII >> Databases >> Special Immigrations Appeals Commission >> G v Secretary of State for the Home Department [2007] UKSIAC 2/2005 (08 February 2007) URL: https://www.bailii.org/uk/cases/SIAC/2007/2_2005.html Cite as: [2007] UKSIAC 2/2005 |
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Appeal No: SC/02/05
Date of Judgment: 8 February 2007
Sitting at Field House
MR MICHAEL JAMES
G | Appellant | |
- and - | ||
SECRETARY OF STATE FOR THE HOME DEPARTMENT | Respondent |
Introduction
A person who is not a British citizen is liable to deportation from the United Kingdom if -
(a) the Secretary of State deems his deportation to be conducive to the public good; ...
The grounds of appeal
(i) the notice of intention to deport is incompatible with the Appellant's rights under ECHR Articles 2, 3, 5, and/or 6 (Grounds at [2] – [5] and [7(i)]), or as a matter of discretion, should be reversed (Grounds at [9]);
(ii) the notice of intention to deport is a disproportionate interference with the Appellant's rights under ECHR Article 8 (Grounds at [6] and [7(ii)]); and
(iii) the notice of intention to deport amounts to a breach of the United Kingdom's obligations under the Refugee Convention on the basis that the Appellant cannot "… be excluded from the definition of refugee status under Article 1F, nor from the protection against refoulement [i.e. expulsion or return] under articles 32 and 33".
The issues
(a) Was the Home Secretary right to conclude that the Appellant's deportation is conducive to the public good in the interests of national security, i.e., by reason of the risk he presents to national security? This has been referred to as "the National Security Issue".
(b) If so, would his deportation interfere with his Convention rights enjoyed in this country? The Convention right engaged is that conferred by Article 8.
(c) If our answer to (a) is Yes, and our answer to (b) No, would his deportation infringe his Convention rights under Articles 2, 3, 5 and 6 by reason of the detention and/or trial and/or treatment he would or might undergo or suffer on his return to Algeria? This issue has been referred to as "the Safety on Return Issue". We note, however, that in so far as the allegations are based on Articles 5 and 6 they go beyond his safety on return.
The authority of previous decisions of SIAC
The National Security Issue
15. We note the denials [of the Appellant], but we have to consider all the evidence. As will be clear from this judgment, we have reason to doubt some of the Appellant's assertions. But the closed material confirms our view that there is indeed reasonable suspicion that the Appellant is an international terrorist within the meaning of section 21 [of the ATCSA] and reasonable belief that his presence in the United Kingdom is a risk to national security. We have no doubt that he has been involved in the production of false documentation, has facilitated young Muslims to travel to Afghanistan to train for jihad and has actively assisted terrorists who have links with Al Qa'eda. We are satisfied too that he has actively assisted the GSPC. We have no hesitation in dismissing his appeal.
9. [The Appellant] was released on bail on 22 April 2004 on strict conditions, which amount to house arrest with further controls. But in granting bail, the Commission did not revise its view as to the strength of the grounds for believing that he was an international terrorist and a threat to national security. The threat could be managed proportionately in his case in view of his severe mental illness. That however is no reason to cancel the certificate. There might be circumstances in which he breaches the terms of his bail or for other reasons it was necessary to revoke it. The need for the certification to continue must depend on whether the terms of the [ATCSA] and of the derogation continue to be met.
10. A number of his contacts remain at large including some who are regarded as actively involved in terrorist planning. There is nothing to suggest that his mental illness has diminished his commitment to the extremist Islamic cause; he has the experience and capacity to involve himself once more in extremist activity. The bail restraints on him are essential; those are imposed pursuant to his certification and the SIAC dismissal of his appeal against it. The certificate is properly maintained.
Article 2
Article 8
Article 3
The relevance of G's ill health
Will G suffer treatment prohibited by Article 3 if returned to Algeria?
Any Algerian national who activates or joins a terrorist or subversive association, group or organisation abroad, whatever its former name may be, even if its activities are not directed against Algeria, shall be liable to imprisonment for a set term of 10 (ten) to twenty (20) years and a fine of 500,000 DA to 1,000,000 DA.
Where the acts described above are intended to harm Algeria's interests, the penalty shall be life imprisonment.
It is only offences under the second paragraph that are subject to the Charter. G is not known to have committed, and is not wanted, for any offence against Algeria. His offences relate to international terrorism, i.e. they fall within the first paragraph. Its exclusion from the Charter was intended to demonstrate, and does demonstrate, the Government of Algeria's participation in the so-called war against international terrorism. Thus G remains liable to prosecution on his return to Algeria. Whether there is a real risk that he will be prosecuted is another question, which we consider below.
(a) Until the relatively recent political and legal changes, although Algeria is a party to the Convention against Torture, there was torture of persons held in detention. Officers of the Département du renseignement et de la sécurité or DRS (Information and Security Department) were particularly involved. It seems that no DRS officer has ever been prosecuted for having tortured or ill-treated a detainee.
(b) The changes in Algerian society to which we have referred have led to a reduction in torture and other ill-treatment of suspects and detainees. Nonetheless, according to an Amnesty International report of July 2006, which was not disputed, "torture and other ill-treatment continue to be used systematically by the "Military Security" (i.e., the DRS). See too the UNHCR position paper of December 2004.
(c) Algeria is a party to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. That has not prevented torture being inflicted by state agents against persons suspected of Islamic terrorism.
(d) The Algerian Government has given the UK Government assurances as to the treatment of its citizens suspected of terrorism who are returned there. In the absence of these assurances there would be a real risk that on his return to Algeria G (and persons in a similar position) would be tortured or subject to other ill-treatment.
(e) It follows that the lawfulness of the Secretary of State's decision to deport G depends on the degree of confidence that the Algerian Government's assurances will be honoured.
(f) In considering that question, the Commission must consider not merely the genuineness of those assurances (and it is accepted by G that they have been given in good faith), but also whether their observance on the ground, by officers of the DRS and others who may be involved with the detention of G, can be relied upon.
(g) If returned to Algeria, G will be detained for a period (the anticipated duration of which is in issue) and questioned with a view to establishing his "status". He is likely to be held incommunicado. There would therefore be the opportunity for torture and ill-treatment.
(h) Algeria is not a party to OPCAT, the Optional Protocol to the Convention against Torture. Algeria has not agreed to international or UK monitoring of its observance of the Convention against Torture. Thus there would be no formal monitoring of G's treatment while in detention.
In this case, the assurances given by the Algerian Government are central to the issue of safety on return. We hold that we can and should evaluate their credibility and worth. By what yardsticks should they be judged? Without attempting to lay down rules which must apply in every case, we believe that four conditions must, in general, be satisfied:
(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.
6. (i) and (ii) are axiomatic. (iii) covers a number of possible situations. In a country where the rule of law is firmly embedded, it can safely be assumed that an assurance given to another state will be fulfilled – as, for example, assurances given by the United States of America in extradition cases that the death penalty, even if allowed by law for the extradition crime, will not be carried out. In the case of states where the rule of law is less firmly embedded, it will ordinarily be necessary to look for other grounds for believing that their assurances will be fulfilled: principally, that it is in the objective interest of the state to fulfil its assurance. We accept Mr Tam's suggestion that clear evidence of a settled political will to fulfilment can be a further relevant factor; but by itself, it is insufficient, because political personnel and imperatives can change. Only when allied to objective national interest will it provide firm support. The government of the receiving state must also be able to exercise an adequate degree of control over its agencies, including its security forces, to satisfy the reasoning and decision of the court in Chahal at paragraph 105. As to (iv), verification can be achieved by a variety of means, both formal and informal and by a variety of agencies, both governmental and non-governmental. "Monitoring" is one means of verification, but not the only one. Mr Tam submitted that the capacity to verify was not a condition, but only a factor. We do not agree. An assurance, the fulfilment of which is incapable of being verified, would be of little worth.
If the person concerned is arrested so that his status may be assessed he will enjoy the following of rights, assurances and guarantees laid down by the Constitution and the national legislation in force concerning human rights:
(a) Appearance before a judge to rule on the legality of his arrest or detention and to inform him of any charges against him and his right to be assisted by counsel of his choice and to make contact with such counsel immediately;
(b) He may receive free legal aid;
(c) He may not be placed in detention other than by the competent judicial authority;
(d) If criminal proceedings are brought against him, he will be presumed innocent until his guilt has been legally established;
(e) Right to inform a close relative of his arrest or detention;
(f) Examination by a doctor;
(g) Appearance before a judge to rule on the legality of his arrest or detention;
(i) Respect for his human dignity under all circumstances.
(There is no paragraph numbered (h).)
Articles 5 and 6
Conclusion
MR JUSTICE STANLEY BURNTON