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You are here: BAILII >> Databases >> Special Immigrations Appeals Commission >> BB, G, PP, U, W, Y, Z (Deportation - Substantive - remitted appeal) [2013] UKSIAC 39/2005 (25 January 2013) URL: https://www.bailii.org/uk/cases/SIAC/2013/39_2005.html Cite as: [2013] UKSIAC 39/2005 |
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IN THE SPECIAL IMMIGRATION APPEALS COMMISSION
BETWEEN:
W and Others Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent
NOTE
These judgments were drafted, approved by all members of the panel and submitted to the FCO for vetting before the French intervention in Mali and the incidents at In Amenas. If those events prove to have a material impact on the situation in Algeria it is unlikely to be capable of being definitively assessed for many months. Accordingly, we see no reason to defer handing down our judgments, based on the material available to us at the hearing.
[This note is drafted with the approval of the 2 legal members of the panel. The third is not contactable.]
The Honourable Mr Justice Mitting
21st January 2013
Hearing Date: 11th - 18th December 2012
Date of Judgment: 25th January 2013
Appellants
Respondent
MS D ROSE QC, MS S HARRISON, MS A WESTON, MR D FRIEDMAN and MS C KILROY (instructed by Birnberg Peirce & Partners Solicitors, Luqmani Thompson & Partners and Fountain Solicitors) appeared on behalf of the Appellants.
MR R TAM QC, MR R PALMER and MS C STONE (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
MS J FARBEY QC, MR H KEITH QC and MR M GOUDIE (instructed by the Special Advocates' Support Office) appeared as Special Advocates.
MR JUSTICE MITTING :
Background
SIAC's approach to the remitted appeals
Developments in Algeria since January 2011
Differing opinions and conclusions about the government of Algeria
Q and H and others who have returned
The British citizen who visited Algiers on 3 May 2012
i) Would the DRS officers who would detain and question the appellants regard conditions of detention comparable to that experienced by AB as consistent with their human dignity?
ii) If so - on the basis that there would then be a real risk that an appellant would be detained in such conditions - would that put the United Kingdom in breach of its obligations to that appellant under Article 3 ECHR?
"67 The court recalls that, according to its case law, ill- treatment must attain a minimum of level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim...
68 Furthermore, in considering whether a treatment is "degrading" within the meaning of Article 3, the court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3."
Peers concerned conditions in the prison of a contracting state. In a "foreign" case, the test is not identical. In § 177 of Babar Ahmad v. UK, final judgment 24/09/2012, the court set out the approach to be adopted. Having first declared in § 176 that the Chahal ruling applied without distinction between the various forms of ill-treatment which are prescribed by Article 3 in removal cases, it stated,
"However, in reaching this conclusion, the court would underline that it agrees with Lord Brown's observation in Wellington that the absolute nature of Article 3 does not mean that any form of ill-treatment will act as a bar to removal from a contracting state. As Lord Brown observed, this court has repeatedly stated that the Convention does not purport to be a means of requiring the contracting states to impose Convention standards on other states.This being so, treatment which might violate Article 3 because of an act or omission of a contracting state might not attain the minimum level of severity which is required for their to be a violation of Article 3 in an expulsion or extradition case. For example, a contracting state's negligence in providing appropriate medical care within its jurisdiction has, on occasion, led the court to find a violation of Article 3 but such violations have not been so readily established in the extra-territorial context (compare the denial of prompt and appropriate medical treatment of HIV/Aids in Aleksanyn v. Russia.. .with N v. The United Kingdom..."
In Batayav v. SSHD [2003] EWCA Civ 1489, a decision which binds us, a real risk of ill-treatment infringing Article 3 by reason of the conditions of detention in a receiving state can only be established by "a consistent pattern of gross and systematic violation of rights under Article 3": § 7.
Verification
Conclusion on generic issues
"(1) Whether the terms of the assurances have been disclosed to the court.
(2) Whether the assurances are specific or are general and vague.
(3) Who has given the assurances and whether that person can bind the receiving state.
(4) If the assurances have been issued by the central government of the receiving state whether the local authorities could be expected to abide by them.
(5) Whether the assurances concerns treatment which is legal or illegal in the receiving state.
(6) Whether they have been given by a contracting state.
(7) The length and strength of bilateral relations between the sending and receiving states, including the receiving state's record in abiding by similar assurances.
(8) Whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant's lawyers.
(9) Whether there is an effective system of protection against torture in the receiving state, including whether it is willing to co-operate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible.
(10) Whether the applicant has previously been ill-treated in the receiving state and
(11) Whether the reliability of the assurances has been examined by the domestic courts of the sending/contracting state."
(1) Yes.
(2) The assurances are specific, although the key assurance uses indirect language to state that which is universally understood in diplomatic exchanges between states: that an individual will not be tortured.
(3) The assurances have been given by the President and by the Ministry of Justice. Both bind Algeria.
(4) The "local authority" in this case is the DRS which participated in the discussions giving rise to the assurances. They can be expected to abide by them.
(5) The assurances concern treatment which is illegal in the receiving state.
(6) No.
(7) Close relations between the governments of Algeria and the United Kingdom have existed since the Algerian government's opening to the West after 2001. They are now strong. The record of Algeria in relation to the small number of men deported with the benefit of assurances is good.
(8) There are no monitoring mechanisms and access to a deportee's lawyer is prohibited during garde a vue detention, but unfettered thereafter. As far as we know, no foreign lawyer has been permitted to visit a detained former client in Algeria. Despite these limitations, we are satisfied that effective verification is achievable.
(9) Not as a general proposition in the case of the DRS. There is no monitoring or inspection of their facilities. As far as we are aware, no DRS officer has been punished for torture.
(10) Except for Y, no.
(11) They have been.
We would respectfully add to the Strasbourg Court's list of factors two of those to which we always give great weight: whether or not the assurances are given in good faith; and whether or not it is in the objective national interest of the receiving state to fulfil its assurances. Taking those factors into account, in addition to those identified by the Strasbourg Court, we are satisfied that the Algerian state's assurances can be relied upon in the case of these appellants.
Considerations particular to individual appellants
U, PP and BB
W
G
"Yes. If he was a patient in a psychiatric hospital, I would say if he was returned to Algeria, if he was waiting to be returned to Algeria this court having decided that he should go back to
Algeria, if he was in hospital at that point I would consider it negligent were he not to be continuously observed."
In a written submission made subsequent to the hearing, the Treasury Solicitor has invited us to treat that answer as referring only to circumstances in which he was hospitalised as a patient suffering from psychotic depression. We did not understand his answer in that sense. It was given in response to an open question about the steps which could be taken in the United Kingdom and in Algeria to obviate the suicide risk. In the light of his earlier observation that true psychotic depression would respond to medication, he would not have said that medication would have no part to play. Dr. Latcham had earlier accepted that the suicide attempt in September 2005 was a serious one. We take his answer to be of general application, not tied to the specific diagnosis of psychotic depression.
"(3). The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made.
There has to be a "substantial risk that (the appellant) will commit suicide". The question is whether, on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression: see Jansons v. Latvia [2009] EWHC 1845 at (24) and (29)..
(5) On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression.
(6) Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person's mental condition and the risk of suicide."
We are not satisfied that arrangements are in place during the period of garde a vue detention in Algeria so that the risk of suicide can properly be managed during that time. For that reason, G's appeal is allowed.
Y
Z
Conclusion
Post-script