UK - House of Lords, 18 February 2009, RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10

Facts:

The House of Lords considered the appeals of three foreign nationals who the government was seeking to deport to Algeria, in two cases, and to Jordan, in the final case. The grounds justifying the deportation were that each was a danger to the national security of the UK.  The applicants appealed to the Special Immigration Commission, and subsequently, after proceedings in the Court of Appeal, their cases came before the House of Lords. The applicants raised a number of issues relating to the fairness of the proceedings, the UK’s framework for the consideration of cases relating to national security, the interpretation of Article 1F of the Refugee Convention, the correct way to assess diplomatic assurances in respect the treatment of a deportee on return and the circumstances when a “flagrant denial” of Articles 5 and 6 of the ECHR would occur. This summary will consider the last 3 issues.

Decision & reasoning:

The House of Lords dismissed the applicant’s appeals on all points and allowed the Secretary of State’s cross-appeal in O’s cases.

On the relevant points, the House of Lords held:

(1)  Article 1F(c) of the 1951 Refugee Convention should not be interpreted to contain a temporal restriction that resulted in it only being capable of being applied where the applicant was “guilty of acts contrary to the purposes and principles of the United Nations” before admission to the UK. Such a temporal restriction was present in Article 1F(b) but not in relation to Articles 1F(a) or (c).

(2)  There was no principle of law that where a State sought to rely on diplomatic assurances about the treatment of the applicant in the country of return, that independent monitoring was required.   Where the State has a record of lack of respect for human rights good reasons would have to be shown to justify reliance on assurances.  However, the assessment as to whether the required risk of ill-treatment on return was a matter of fact that would be made taking into account any assurances given alongside other evidence.

(3)  The reliance upon evidence obtained under torture in criminal proceedings against the applicant in the country of return did not necessarily constitute a flagrant denial of the applicant’s right to a fair trial, so as to prevent deportation.

Outcome:

Appeals dismissed.

Subsequent proceedings:

Othman (Abu Qatada) v UK (Application no. 8139/09)

Observations/comments:

The House of Lords decision in respect of whether a criminal trial where evidence obtained under torture was used was a flagrant denial of Article 6 ECHR was overturned by the ECtHR in Othman (Abu Qatada) v UK Application no. 8139/09). The Strasbourg Court affirmed a number of other elements of the House of Lords’ decision.