Public / Human Rights : Human Rights Update

Permission to proceed with a claim for judicial review was initially refused by Mr Justice Collins, but was granted on appeal by Sir Henry Brooke.

The substantive claim was then considered by the Court of Appeal. ZT's argument was that the procedure for deciding whether to treat such further submissions as a fresh claim was covered by para 353 of the Immigration Rules, whether or not a s 94 certificate had been issued. As the home secretary had not applied the para 353 test—namely whether there was a “realistic prospect” of an immigration judge allowing an appeal in light of the further submissions—the court granted the claim and quashed the home secretary's decision.

The home secretary appealed to the House of Lords on the grounds that the para 353 procedure did not apply where a s 94 certificate had been issued. The House of Lords held:

As to the facts, their lordships were unanimously agreed that there was no basis for impugning the home secretary's decision. The appeal was allowed.

Judicial review in respect of applications by people seeking a right of appeal against removal when that right can be exercised only outside the UK, or when a previous appeal has failed, has become a complex and procedurally burdensome area of law. Much work falls upon the Administrative Court, in the absence of a statutory right of appeal against rejection of such applications (an absence which could easily and perhaps conveniently be corrected by legislation).

In what appears to have been their (with respect, understandable) concern to simplify matters, the majority of their lordships come close to blurring a number of distinctions, the first two of which are traditionally vital ones in administrative law:

Lord Phillips's comment that “[i]f the court concludes that a [fresh] claim has a realistic prospect of success when the [home secretary] has reached a contrary view, the court will necessarily conclude that the [home secretary]'s view was irrational” seems novel in equating, on the face of it, disagreement with irrationality. However, Lord Phillips clearly had in mind that the test under para 353 is now effectively the same as that in certification cases, ie that “[i]f on at least one legitimate view of the facts or the law the claim may succeed”, the applicant must be treated as making a fresh claim and thus as entitled to appeal. To that extent, if the court, reviewing the facts and law, concludes that the asylum appeal may succeed before an immigration judge, then there would arguably be no room for the secretary of state reasonably to take the view that it cannot. Any apparent blurring of appeal and review may therefore relate only to this very specific area of law. Nevertheless, Lord Hope's concern to defend the principle that there is a necessary distinction between review and appeal on the merits—indeed, that the court's “jurisdiction to deal with the case, outside the decision-making scheme laid down by the statute, rests entirely on that principle”—appears to be more in accordance with conventional thinking.

Lord Phillips and Lord Brown treated the phrases “no realistic prospect of success” and “clearly unfounded” as effectively coterminous; Lords Carswell and Neuberger envisaged circumstances where there might be a difference but agreed to the extent that these would be rare. Lord Hope was alone in considering, with reference to metaphorical attempts to shoot a red traffic light in his motor car, that there was an intended difference which was worth being concerned about.

It is unclear where the decision that the reviewing court requires, in effect, to make up the home secretary's mind for her leaves many a fresh claim, especially those which focus on procedural errors or misdirections on the home secretary's part as to fact or law rather than simple perversity: in some cases the court may now have to substitute its own view that there is no fresh claim for purposes of para 353, even where the home secretary has clearly misunderstood the facts or law and might, if she had not done so, have agreed that there was one. It may be that in such cases the decision will still fall to be quashed. Otherwise the court risks becoming a primary decision-maker, which is some distance from the arm's-length oversight which judicial review traditionally provides.

The House of Lords hearing therefore raised issues about the extent and limits of the obligations of the UK under the Convention where a threatened breach of the Convention might occur not in the UK but in another country to which the UK intended to deport or remove. Such cases under the Convention are referred to as “foreign cases” following terminology of Lord Bingham in R (Ullah) v Special Adjudicator [2004] 2 AC 323.

Such cases date back to Soering v United Kingdom (1989) 11 EHHR 439 where the European Court of Human Rights (ECtHR) considered a claim that an intended extradition of a murder suspect to the US would be contrary to Art 3 because of the “death row” phenomenon of long delayed executions.

The ECtHR narrowly rejected the application on the facts, but affirmed the principle that, while Convention institutions were not normally concerned with potential, as opposed to actual, violations of Convention rights, such rights were engaged where there was a real risk of torture or inhuman or degrading treatment in the requesting country. The court also observed that in an exceptional case an extradition might also engage Art 6.

In Chahal v United Kingdom (1997) 23 EHRR 413 the ECtHR applied the same principle in the case of an alleged Sikh terrorist, upholding Mr Chahal's challenge to his intended deportation from the UK to India on national security grounds, on the basis that there was a real risk that if deported he would be tortured while in custody there. A further concern in Chahal was the lack of an effective remedy because Mr Chahal was unable for security reasons to challenge the intelligence information against him. It was in response to this concern that SIAC was created, with provision for sensitive material to be considered in closed session with a special advocate representing the appellant.

In Bader v Sweden (App No 13284/04), [2005] ECHR 13284/04, the ECtHR upheld a challenge to refoulement of an asylum seeker on the ground that there was a real risk on return of a flagrantly unfair trial leading to imposition of the death penalty. However, the court found that the rights infringed were Art 2 (right to life) and Art 3, not Art 6. The ECtHR has not yet in a foreign case upheld a challenge based on Art 6.

In both RB and U and Othman the British government had obtained high-level assurances that the intended deportees would not be tortured. The leading ECtHR case on assurances in this situation is Saadi v Italy (App No 37201/06), [2008] ECHR 37201/06. There the Tunisian government had refused to give the assurances sought by the Italian government that an intended deportee would not be tortured although it had given other assurances in general terms. The ECtHR found that these assurances were not such as to remove the real risk that Saadi would be tortured. In contrast in Mamatkulov & Askarov v Turkey (2005) 41 EHRR 25, assurances by the Uzbek government, combined with the fact that after deportation (which happened while the ECtHR hearing was pending, in breach of Convention Art 34), no signs of torture were apparent on medical examination in Uzbekistan, satisfied the ECtHR that there was no risk of a breach of Art 3.

In giving its unanimous judgment the House of Lords held that the issue of whether there was a real risk of torture or inhuman or degrading treatment in breach of Art 3 was one of fact for SIAC, and that the Court of Appeal did not have jurisdiction to re-examine the factual issues, save to the extent necessary to determine whether there was material before SIAC on which a reasonable tribunal might have found that there was no real risk of a breach of Art 3 (the traditional test for judicial review of a decision of fact, derived from Edwards v Bairstow [1956] AC 14, [1955] 3 All ER 48). It then held that there was such material before SIAC including in particular the existence of the assurances by the Algerian and Jordanian governments. Similarly SIAC had been entitled to dismiss Mr Othman's Art 5 claim, which was based on the fact that Jordanian law provided for solitary detention without charge or access to a lawyer for up to 50 days, on the basis that this was unlikely to happen in his case.

With regard to Mr Othman's Art 6 claim, SIAC found that he would not receive a fair trial for two reasons:

SIAC held, however, that this was not the test for upholding his appeal. For Art 6 to be engaged there had to be a “total denial of the right to a fair trial” in Jordan, and this had not been shown. In reversing SIAC's decision the Court of Appeal held that this test was met because of the fundamental nature of the prohibition of torture. The House of Lords held, however, that the legal test applied by the SIAC was not an error of law and that the SIAC was entitled on the facts to find as it had done. It therefore upheld the home secretary's appeal, while dismissing cross appeals relating to the SIAC's findings of fact.

These cases are likely to go to the ECtHR. While the House of Lords was precluded by the nature of the statutory right of appeal from considering questions of fact save to the limited extent needed to ensure that there was material on which a reasonable decision-maker could have reached the conclusion reached, the ECtHR will directly scrutinise the facts. The outcome of this scrutiny, particularly in the Othman case, where it is likely that evidence will be used in a prosecution in Jordan which was obtained by torture, must be highly uncertain.