BB & Ors (Algeria) v Secretary of State for the Home Department

These applicants for permission to appeal are all Algerian nationals whom the Secretary of State proposes to deport to Algeria on the basis that to do so would be conducive to the public good for reasons of national security.

Each appealed against the decision of the Secretary of State to the Special  Immigration Appeal Commission, SIAC. Each contends that his deportation to Algeria would expose him to torture or other ill-treatment in violation of Article 3 of the European Convention on Human Rights. There are also other complaints. SIAC dismissed all their appeals. Three of the applicants, Y, U and BB, appealed with leave to this court. Their appeals were each allowed in part in a judgment delivered on 30 July 2007. The court was  constituted by Sir Anthony Clarke, Master of the Rolls, Buxton and Smith LJJ. The judgment is now reported at [2008] Vol 2 WLR 159. All three cases were remitted for a fresh hearing before SIAC. That took place and SIAC issued a fresh compendious determination on 2 November 2007. Other applicants, G, W and Z, had also sought permission to appeal the SIAC determination in their cases which had preceded the Court of Appeal hearing; but on 19 September 2007 those applications were stayed pending the outcome of the remitted hearing in W, BB and U.

BB and U have now obtained leave to appeal to the House of Lords against the judgment of the Court of Appeal of 30 July 2007 and I must say a little more about that in a moment. Before the court today are applications for permission to appeal brought by Y, BB and U against the second SIAC determination of 2 November 2007. G, W and Z seek to their applications, previously stayed, for permission to appeal against the original determinations of SIAC. There is finally an application by PP against the SIAC determination in his case which was made on 23 November 2007.

For my part I would propose to stay all these applications for permission to appeal on the following grounds. There is before us an amended petition that was presented to their Lordships’ house. It contains essentially three points. The first point is as to the approach which the Court of Appeal should adopt in appeals of this kind. It was contended in the appeals of July last year that in an Article 3 case, the court, although exercising a jurisdiction limited to law only, should take a generous view of its functions and in effect review a decision of a lower court to the effect that Article 3 would not be violated on what in truth amounted to a factual basis if the Court of Appeal thought that the conclusion was wrong. The scope of an appeal on law only then, in the context of Article 3, is the essence of the first ground.

The second ground or issue before their Lordships is as to the correct approach to be taken by SIAC or the court to assurances given by a foreign state as regards the treatment that will or will not be meted out to persons returned there from this county. It is important to note that in the case of all these applicants an assurance or assurances given by the Algerian authorities have been relied on by the Secretary of State in order to resist the Article 3 contentions advanced by the applicants. A principal point relating to the assurances is the assertion that they should not be relied on by the courts here unless there were in place some system or systems for monitoring compliance in the country in question.

A third issue is raised by amendment in the petition. That concerns the use of closed material by SIAC and indeed the Court of Appeal in circumstances where the Secretary of State desires to rely on evidence that for reasons of security cannot be disclosed to the applicants. This was a substantial issue before the Court of Appeal last year and the court held -- I summarise -- that there was no violation of Article 6 or breach of the common law in the use of closed sessions subject to certain safeguards. That finding is challenged, as I say, by amendment of the petition.

I indicated earlier that the House of Lords had given permission to appeal on this petition and that is so, but the scope of the grant of permission is uncertain, or is not presently clearly known. It seems plain that their Lordships have given permission on the first two grounds or issues which I have briefly sought to describe. I am not certain whether they have given permission on the third.

In this court, by these applications, the applicants seek to raise a number of different grounds. It is enough to say that certain of the grounds relate directly to assurances and the use which the court or SIAC may make of assurances; and that plainly is well within the scope of the forthcoming appeal to their Lordships’ house. Mr Starmer, for this purpose speaking for all the applicants, says that a large number of the grounds that are sought to be canvassed before us in one way or another would be affected by the decision of their Lordships on the issues before the house. It is enough to say that seems to be right. The point relating to reliance on assurances in the absence of monitoring arrangements, brought by the applicant Y, is the most obvious. Y also complains about the use of closed material and failure to give reasons for finding that assurances are reliable. Those are all, as it seems to me, on the face of it, within the ambit of the appeal to their Lordships, certainly if their Lordships have granted leave in relation to the third issue.

Mr Starmer says that the first issue before the House, relating to the proper approach of the Court of Appeal to its jurisdiction potentially affects all the various grounds raised by all the various applicants. I am not confident that that is literally so, but one can see that it will affect a considerable number of the different contentions that are put forward. And so, says Mr Starmer, the court ought sensibly to await the decision of their Lordships before deciding whether to grant permission to appeal in effect on any of the points in question. It is true, however, that some of the points are considerably more distant from the issues before their Lordships than are others, and some on the face of it may be entirely unconnected. One difficulty is that in a number of instances the same applicant seeks to raise points that are connected with the contents of the petition and others which are not or may not be. The picture is a rather messy one.

Mr Tam, who is anxious on behalf of the Secretary of State that these applications be dealt with as expeditiously as possible and for good reason, submits that the court might consider granting permission to appeal on any such issue as is linked with or may be governed by the House of Lords proceedings, then dismiss the appeal, leaving it to the appellants to seek to have the matter joined with the ongoing appeals in their Lordships’ House. And, says Mr Tam, the court could deal with unconnected points separately.

There are a number of difficulties with that. First, I have some considerable reservation as to whether it is right as a matter of principle to grant leave to appeal in circumstances where the present state of the law would suggest that the point in question is unarguable. Second, even if the problem I have already mentioned, that in relation to some applicants there are points taken both connected and unconnected with the issues before their Lordships, if one were to grant permission to appeal on points that may be connected with the issues before the House of Lords, for my part I would have thought that Mr Starmer is right to submit that the proper and fair thing would then be to postpone the hearing of the appeal itself until the House of Lords’ decision is known; but that of course would mean that there would be no saving of time whatever. So there is a great deal of overlap here. It might be possible to devise a procedural mechanism by which some issues could be dealt with discretely even though the same applicant would have other outstanding points that must await their Lordships’ decision. I think that would be a difficult and very likely inconvenient course.

There is another point. It is possible (Mr Tam says very unlikely, but it is possible) that if the appellants in their Lordships’ House obtain a very fair wind, and a result in relation to the assurances that in practical terms undercuts the Secretary of State’s reliance on those assurances that will or may go to the ultimate outcome of the Secretary of State’s deportation proposals, whatever the grounds of appeal now sought to be raised by the applicants. Were that to happen, and the court meantime had decided perhaps a whole series of different points, why those would have been shown to be moot and the court’s time not sensibly taken up.

In all the circumstances and with a considerable degree of reluctance, I would conclude from my part that the course with least disadvantages here is to adjourn or stay the applications for permission until the decision of their Lordships’ House in the extant appeals is known.

I entirely agree. I had wondered with my Lord whether there was the possibility of devising a mechanism for dealing with such points as could be said to be unconnected with any decision of the House of Lords, but the difficulty is that, as it seems to me, the applicants are taking both connected points and unconnected points; and it seems to me there is very unlikely to be any advantage in terms of time, and a possibility that one gets into a difficulty by seeking to decide such points separately. So again, albeit with reluctance, I agree with my Lord that the right course in these cases is to stay the applications for permission, pending the judgment in the House of Lords. It would also seem to me to be right to add that hopefully this is one of those cases where some contact with the Lords can be made, so that they can be made aware of the timetabling and that may encourage the House of Lords to list their case as speedily as possible.