Immigration—Deportation—Special Immigration Appeals Commission

House of Lords, Lord Phillips, Lord Hoffmann, Lord Hope, Lord Brown and Lord Mance, 18 Feb 2009

The House of Lords has ruled in relation to the deportation of aliens: (i) the findings of the Special Immigration Appeals Commission on safety upon return are questions of fact, not law, with appeals limited accordingly; (ii) expulsion of aliens involves no determination of civil rights and therefore does not engage Art 6 of the European Convention on Human Rights (the Convention); and (iii) only where a prospectively unfair trial would be likely to lead to a serious violation of some substantive human right would Art 6 fall for consideration in a foreign case.

Rabinder Singh QC and Hugh Southey (instructed by Fisher Meredith LLP) for RB. Richard Drabble QC, Raza Husain and Hugh Southey (instructed by Birnberg Peirce & Partners) for U. Michael Beloff QC, Robin Tam QC, Time Eicke, Andrew O’Connor and Alan Payne (instructed by the Treasury Solicitors) for the secretary of state.

The appeals related to three individuals, two from Algeria (RB and U) and one (O) from Jordan. The secretary of state for the home department wished to deport each of them on the ground that they were a danger to the national security of the UK. Each contended that the secretary of state could not do so because deportation would infringe his rights under the Convention. The cases were heard before the Special Immigration Appeals Commission, which gave open and closed judgments. 

Appeals followed to the Court of Appeal. RB and U contended that deportation to Algeria would infringe their rights under Art 3, in that it would expose them to a real risk of torture or inhuman or degrading treatment. O contended that if he was deported to Jordan he would face a real risk of torture or inhuman or degrading treatment contrary to Art 3 of the Convention, a real risk of a flagrant breach of his right to liberty under Art 5 of the Convention and a real risk of a flagrant breach of his right to a fair trial under Art 6 of the Convention, so that his deportation would infringe those three Convention rights.

All were dismissed save for that of O in respect of his contention that his deportation would infringe his right to a fair trial under Art 6 of the Convention.  RB and U appealed to the House of Lords, the secretary of state appealed in respect of O and he cross-appealed in respect of those aspects of his claim which had failed. Three common issues were raised by the appeals.

Statutory duty

First, it was contended that the Court of Appeal had a statutory duty to ensure that deportation did not involve any infringement of Convention rights, not simply to review the Special Immigration Appeals Commission decision for error of law. 
The second common ground of appeal concerned the use of closed material, namely the procedure by which the Special Immigration Appeals Commission heard evidence and submissions in closed session in which the interests of the deportee were represented by a special advocate. 
RB, U and O contended that that procedure breached their right to a fair trial under Art 6 of the Convention. 
Third, the appellants contended that the UK could not rely on assurances from the receiving states that their trials would not involve human rights violations, where the receiving state had a pattern of past human rights violations. The issue further arose in relation to O’s appeal as to whether the trials that he would face upon return would breach Art 6. 

Lord Phillips:

The right to appeal to the Court of Appeal from a final determination of an appeal made by the Special Immigration Appeals Commission was stated by s 7 of the Special Immigration Appeals Commission Act 1997 to be “on any question of law material to that determination”.
The Special Immigration Appeals Commission determination involved the following stages: (i) it had to direct itself as to the appropriate test for a breach of the relevant article; (ii) it had to determine the relevant primary facts; and (iii) it had to determine whether those facts satisfied the appropriate test.

There was no doubt but that the first stage involved a question of law. It was common ground that the second stage involved questions of fact against which there was no right of appeal. The dispute related to the third stage. The appellants contended that the third stage involved determining a question of law. The secretary of state contended that the relevant question was one of fact.

By restricting appeals to questions of law Parliament had deliberately circumscribed the review of SIAC’s decisions that the Court of Appeal was permitted to undertake, so that it fell well short of the review that would be carried out if the case reached the European Court of Human Rights. There was good reason for that.

The length of the Special Immigration Appeals Commission’s decision in O’s case, and the time that it took to deliver, evidenced the size of the task that a rigorous scrutiny of the material facts in a case such as the present could involve. It made sense to reserve such a task to a specialist tribunal without providing for a full merits review by an appellate court. That did, of course, mean that decisions of the Special Immigration Appeals Commission might be reversed at Strasbourg, either because the European Court made a different assessment of the relevant facts or because additional relevant facts had come to that court’s attention. That was a possibility that Parliament had chosen to accept.

His lordship went on to hold that if a state sought to rely on assurance from a country with a record for disregarding fundamental human rights it would need to show that there was good reason to treat the assurances as providing a reliable guarantee that the deportee would not be subjected to such treatment. If, however, after consideration of all the relevant circumstances, there were no substantial grounds for believing that a deportee would be at real risk of inhuman treatment, there would be no basis for holding that deportation would violate
Art 3.

Breach of Art 6

His lordship later considered the question arising in O’s case as to whether or not his deportation would lead to a breach of Art 6 due to the fact that he would not receive a fair trial in Jordan. 

The Special Immigration Appeals Commission held that to succeed under Art 6 O needed to establish “a real risk of a total denial of the right to a fair trial”. The Court of Appeal also held that the test was whether there had been a “complete denial or nullification of the Convention right”.

That was neither an easy nor an adequate test of whether Art 6 should bar the deportation of an alien. In the first place it was not easy to postulate what amounted to “a complete denial or nullification of the right to a fair trial” That phrase could not require that every aspect of the trial process should be unfair. A trial that was fair in part might be no more acceptable than the curate’s egg. What was required was that the deficiency or deficiencies in the trial process should be such as fundamentally to destroy the fairness of the prospective trial. 

In the second place, the fact that the deportee might find himself subject in the receiving country to a legal process that was blatantly unfair could not, of itself, justify placing an embargo on his deportation. The focus had to be not simply on the unfairness of the trial process but on its potential consequences. An unfair trial was likely to lead to the violation of substantive human rights and the extent of that prospective violation plainly had to be an important factor in deciding whether deportation was precluded.

Conviction

A conviction that resulted from a flagrantly unfair trial could not be relied upon under Art 5(1)(a) as justifying detention.

Nor could such a conviction justify the imposition and execution of the death penalty. In either case the breach of the procedural rights guaranteed by Art 6 would result in a breach of a substantive right.

If an alien was to avoid deportation because he faced unfair legal process in the receiving state he had to show that there were substantial grounds for believing that there was a real risk not merely that he would suffer a flagrant breach of his Art 6 rights, but that the consequence would be a serious violation of a substantive right or rights. Quite how serious that violation had to be had yet to be made clear by the Strasbourg jurisprudence. Plainly a sentence of death would be sufficient but the court had expressed doubts as to whether the risk of violation of Art 5 could suffice to prevent the expulsion of an alien.

In summary, before the deportation of an alien would be capable of violating Art 6 there had to be substantial grounds for believing that there was a real risk (i) that there would be a fundamental breach of the principles of a fair trial guaranteed by Art 6 and (ii) that that failure would lead to a miscarriage of justice that itself constituted a flagrant violation of the victim’s fundamental rights.

Lord Brown:
 

The instant case was not the occasion to examine the precise scope and application of Secretary of State for the Home Department v MB and AF [2008] 1 All ER 657—there would be a full opportunity for that on the hearing of AF’s further appeal to the House in March. What was critical for present purposes was to understand the all-important difference between control orders such as were in issue there and deportation orders with which their lordships were concerned in the instant case. The former, although falling short of constituting Art 5 detention, in almost every other respect were highly restrictive of the controlees’ ordinary rights and freedoms. Moreover such orders were made domestically and could be (and were) made against UK citizens no less than against aliens. (It was, of course, High Court judges alone who exercised that jurisdiction, not the Special Immigration Appeals Commission.) Inevitably, therefore, such orders engaged Art 6 of the Convention.

Alien expulsion

In contrast, the expulsion of aliens involved no determination of civil rights and was therefore beyond the reach of Art 6: Maaouia v France (Application 39652/98) [2001] ECHR 39652/98. The only exception was where the alien was detained pending expulsion, not a problem now arising in the instant appeals. None of that, of course, was to deny an alien such rights as the Convention might give him not to be deported, whether such rights arose under Art 3 or under any other Convention provision. The independent scrutiny of any such claim which was required to give aliens an effective remedy in that regard need not even be by way of a judicial hearing. Such being the case, it became difficult indeed for the proposed deportees to question the adequacy of the SIAC regime and the legitimacy of its use of special advocates as a means of effectively safeguarding their Convention rights in certain exceptional circumstances not to be deported.

The appeals of RB and U would be dismissed. The secretary of state’s appeal in the case of O would be allowed, O’s cross-appeal would be dismissed and the decision of the Special Immigration Appeals Commissionwould be restored.