RB (Algeria) v Secretary of State for the Home Department  UKHL 10 (18 February 2009) In this case the House of Lords dismissed appeals by RB and U, Algerian nationals, from the Court of Appeal which had allowed their appeals from the Special Immigration Appeals Commission ('SIAC') and remitted their cases to it for reconsideration. The House of Lords also allowed an appeal by the Secretary of State for the Home Department from the Court of Appeal which had allowed Omar Othman's (aka Abu Qatada, a Jordanian national) appeal on the basis that his expulsion would contravene art 6 of the European Convention on Human Rights.
The case relates to three men, RB, U and Othman whom the Secretary of State for the United Kingdom wished to deport on the ground that they were a danger to national security. The original applications were dealt with before SIAC, a special purpose body which is statutorily enabled to consider deportation cases involving national security matters. Each of the men contended that the deportation would infringe their rights under the ECHR. The relevant rights which the men contended would be infringed by deportation were art 3 (prohibition on torture or inhuman or degrading treatment or punishment), art 5 (liberty and security of person) and art 6 (rights of persons charged with criminal offences).
At first instance, SIAC had held that the UK government was entitled to rely upon assurances from the authorities in Algeria and Jordan that the men would not suffer torture or inhuman or degrading treatment. On appeal to the Court of Appeal, all three men had been successful.
The House of Lords unanimously held that the appeals by RB and U should be dismissed and the appeal of the Secretary of State in Othman be allowed, thereby reinstating the decision of SIAC in all three cases. Although all the Lords delivered separate opinions in this case, the leading opinion of the House of Lords was delivered by Lord Phillips, the Senior Law Lord. The main issues considered by His Lordship were the role of the Court of Appeal in considering SIAC decisions, the fairness of SIAC's procedures (particularly its closed evidence procedures), the reliance upon assurances by Algeria and Jordan in relation to the treatment of the three men, and the application of arts 5 and 6 as well as the Convention relating to the Status of Refugees to the situation of the three men.
Initially, the House of Lords considered the procedures used by SIAC - these allowed for open and closed hearings. The SIAC rules also provided for the use of Special Advocates, who were able to communicate freely with the appellant up to the time that he or she was served with closed material. The SIAC procedure was modelled on comments by the European Court of Human Rights about a similar procedure used in Canada. In the assessment of Lord Phillips,
'The United Kingdom has gone further to protect those facing deportation than the Convention requires. In SIAC it has instituted a specialist tribunal that by its composition is peculiarly well equipped to resolve the issues of fact that arise in the context of immigration decisions that involve issues of security and to apply the relevant law to the facts found. In addition a right to the Court of Appeal has been granted in relation to questions of law.'
The House of Lords therefore found that SIAC's use of closed material did not deny the appellants their right to a fair hearing. The appeals to the Court of Appeal are circumscribed by s 7 of the Special Immigration Appeals Commission Act 1997 such that they are to be 'on any question of law material to that determination'. For this reason, the House of Lords held that it was inappropriate for the Court of Appeal to open up questions of fact for reconsideration on their merits - instead confining the Court of Appeal's role in such cases to one of strict legal review only.
As a consequence, the relevant bases upon which the SIAC decisions could be attacked were:
'...on the ground that they failed to pay due regard to some rule of law, had regard to irrelevant matters, failed to have regard to relevant matters, or were otherwise irrational...[and also] on the ground that their procedures had failed to meet requirements imposed by law. (Phillips para 73)'
An alternate description, offered by Lords Hoffmann and Hope, was whether 'no reasonable tribunal could have reached such a conclusion on the evidence.'
Article 3 - prohibition against torture
The principal challenge to the deportation decision by SIAC was its decision that assurances could be relied upon to discharge the art 3 ECHR prohibition on torture. Loosely, the 'assurances' referred to were statements at a high level that the appellants would not be tortured. It was accepted that Algeria and Jordan were states whose human rights record demonstrated that without such assurances, there was a real risk of an art 3 violation. The reliance upon assurances was challenged as:
'...it was irrational and unlawful for SIAC to rely on assurances for two independent reasons: first because Algeria had not been prepared to agree to independent monitoring of the manner in which the appellants would be treated; secondly because, on their true construction, the assurances did not promise that the appellants would not be subjected to inhuman treatment. [In addition]...as a matter of principle, assurances could not be relied upon where there was a pattern of human rights violations in the receiving State coupled with a culture of impunity for the State agents in the security service and the persons who perpetrated these violations. It was further submitted that in all the circumstances SIAC's reliance on the assurances that had been given was irrational.'
Lord Phillips held that SIAC could be expected to scrutinise the use of assurances carefully given that art 3 rights were in issue. In considering the attack upon SIAC's reliance on assurances as irrational, Lord Phillips considered the decisions of SIAC in relation to all three appellants and found that SIAC had not been irrational in relying upon the assurances.
In addition to the art 3 arguments, Othman sought to rely upon the Refugee Convention, however this was rejected on the basis that 'Othman's conduct since coming to [the UK] deprived him of the protection afforded by the Refugee Convention.'
In the context of Othman's arguments regarding arts 5 and 6, the relevant test was that there was a 'real risk of flagrant breach of that article'.
Article 5 - deprivation of liberty
It was argued that art 5 was flagrantly breached by the likelihood that Othman might be held for 50 days without charge upon return to Jordan. Lord Phillips rejected this as being insufficient to constitute a 'flagrant breach', stating that 'in that context a "flagrant breach" is a breach whose consequences are so severe that they override the right of a state to expel an alien from its territory.'
Article 6 - fair trial
A breach of art 6 was argued by Othman in relation to the SIAC decision. In respect of art 6, SIAC considered the following:
'If deported Mr Othman faced a re-trial in respect of both charges on which he had been convicted in his absence. He made two objections to the trial process that he would face. The first was that he would be tried by the SSCt and that this was not an independent and impartial tribunal nor one before which the prosecutor would be independent and impartial. The second objection was that he would be at real risk of being convicted on the basis of the statements made by Mr Al Hamasher and Mr Abu Hawsher and that these statements had been obtained by torture.'
Lord Phillips characterised the right in art 6 as procedural in nature and noted the lack of authoritative guidance for what constituted a 'flagrant breach' of the right. Although Jordanian law placed the burden of proof that evidence used in a trial had been obtained by torture upon the defendant, the House of Lords found that this was insufficient to ground a claim of a 'flagrant denial of justice'.
The House of Lords agreed with the assessment of SIAC that Othman could not claim protection under the Refugee Convention as he fell within the art 1(F)(c) exception to the Convention, being 'guilty of acts contrary to the purposes and principles of the United Nations' by virtue of his terrorist activities.
Relevance to the Victorian Charter
The House of Lords made it clear in their consideration of the issues relevant to the cases that the confined avenues of review for SIAC decisions meant that the threshold for the appellants in demonstrating that SIAC had erred in its decision to deport them was very high, and the facts would not be retested on their merits. The three ECHR articles have their corresponding provisions in the Victorian Charter of Human Rights and Responsibilities however it is important to note that immigration law in Australia is a Commonwealth matter, not subject to the Charter. Therefore, although the Commonwealth has relied upon diplomatic assurances in the past in relation to torture and capital punishment, these would not come under the aegis of the Charter.
The decision is available at http://www.bailii.org/uk/cases/UKHL/2009/10.html.
Allen Clayton-Greene is a Law Clerk with Allens Arthur Robinson