MS (Algeria) v Secretary of State for the Home Department

The Special Immigration Appeals Commission is constituted under the Special Immigration Appeals Commission Act 1997 to hear, among others, appeals against immigration decisions, which would otherwise be dealt with under section 82 of the Nationality Immigration and Asylum Act 2002, where the Secretary of State has certified under section 97 of the 2002 Act that the person’s exclusion or removal from the United Kingdom is in the interests of national security. By section 7 of the 1997 Act, an unsuccessful appellant to SIAC may bring a further appeal to the Court of Appeal on any question of law material to SIAC’s determination. On such an appeal, a question whether assurances given to the United Kingdom Government by the government of the state to which a person is to be removed provide a sufficient guarantee that the person would be protected against the risk of treatment contrary to Article 3 of the European Convention on Human Rights is a question of fact from which there is no appeal on the factual merits to the Court of Appeal – see RB (Algeria) v Secretary of State for the Home Department [2009] 2 WLR 512.

SIAC has over the years considered a significant number of appeals by persons whom the Secretary of State has determined to remove to Algeria on the ground of national security for whom the Algerian government has provided such assurances. RB (Algeria) was one such case. The present appeal by MS from a decision of SIAC of 26^th March 2010 is another in this line of cases.

In RB (Algeria), two Algerian nationals appealed against the Secretary of State’s decision to deport them on national security grounds on the basis that, if they were returned to Algeria, there was a real risk that they would be subjected to treatment in breach of Article 3 of the Convention. In concluding that they could safely be returned, the Secretary of State relied assurances given by the Algerian Government as to the treatment they would receive if they were returned. SIAC concluded on the evidence that there were no substantial grounds for believing that they would be exposed to treatment contrary to Article 3. On an eventual appeal to the House of Lords, it was held that the question whether assurances provided a sufficient guarantee against the risk of treatment contrary to Article 3 was a question of fact. No principle of law required that such assurances needed to eliminate all such risk nor that external monitoring was required. The terms on which the assurances were given, the opportunities for monitoring and the extent to which the risk would be reduced required careful evaluation, especially where the assurances were given by a country where inhuman treatment by state agents was endemic.

The question of monitoring arose because SIAC had articulated four conditions that had to be satisfied if the assurances were to carry the necessary credibility. The conditions were that (i) the terms of the assurances had to be such that, if they were fulfilled, the person returned would not be subjected to treatment contrary to Article 3; (ii) the assurances had to be given in good faith; (iii) there had to be a sound objective basis that the assurances would be fulfilled; and (iv) fulfilment of the assurances had to be capable of being verified. The House of Lords held that effective verification was an essential ingredient. An assurance the fulfilment of which was incapable of being verified would be of little worth. Verification could be achieved by a number of means, both formal and informal, of which monitoring was only one (Lord Phillips of Worth Matravers at paragraph 23). The United Kingdom Government had sought to persuade the Algerian Government to agree to monitoring but had not succeeded. SIAC had concluded that there was nothing sinister in this. There were other ways in which the performance of the Algerian assurances could be verified by contact by the British Embassy and investigation by Amnesty International and other non-governmental agencies.

Lord Phillips dealt with the question of reliance on assurances in paragraphs 106ff of his opinion. It was accepted that Algeria was not a country to which the appellants could safely be returned without the assurances. One of the applicant’s submissions was that SIAC could not rely on the assurances because Algeria had not been prepared to agree to independent monitoring. Lord Phillips did not consider that Strasbourg decisions to which he referred (including Chahal v United Kingdom 23 EHRR 416 and Saadi v Italy 24 BHRC 123) established a principle that assurances must eliminate all risk. He referred to Canadian authority which had considered the importance of verification and quoted a passage from Suresh v Canada [2002] 1 SCR 3 to the effect that issues as to whether there is a substantial risk of torture are largely outside the realm of expertise of reviewing courts and possess a negligible legal dimension. Lord Phillips agreed with this, saying that the only ground on which such conclusions could be attacked on an appeal restricted to questions of law was irrationality. He decided (paragraph 125) that this challenge failed. He described how SIAC in another appeal (Y v Secretary of State for Home Department Appeal No SC/36/2005) had considered in detail the obtaining of Algerian assurances by the British Government. SIAC had paid careful regard to all relevant matters. They gave consideration to why Algeria was not prepared to agree to monitoring and concluded that this was not indicative of bad faith and that there were alternative ways of ascertaining whether there was compliance. The contention that the assurances did not, on their true construction, protect against inhuman treatment was not well founded.

Lord Hoffmann also considered (paragraph 184) that the question whether there was a real risk that the deportee would be subjected to torture or treatment contrary to Article 3 was a question of fact. He referred at some length to Saadi, in which there were diplomatic communications between Italy and Tunisia. In that case, the European Court of Human Rights had said that the court had to examine whether such assurances provided sufficient guarantee, and that the weight to be given to them depended on the circumstances obtaining at the material time. Lord Hoffmann said at paragraph 193 that a good deal had been written about the importance of external monitoring. In the absence of some provision for external monitoring, such assurances may be no more than empty words. But there was no rule of law that external monitoring is required. It all depended on the facts of the particular case. SIAC were right to say that, although fulfilment of the assurances must be capable of being verified, external monitoring is only one form of verification. It was open to SIAC in that case to make the carefully balanced finding on the evidence which they did. Lord Hope said at paragraph 241 that he was unable to detect any grounds for thinking that SIAC’s conclusions were not open to them on the evidence. The terms in which the assurances were given, the opportunities for monitoring and the extent to which that the risks would be reduced all required careful evaluation. These were matters for SIAC to resolve, as it did, on a careful consideration of the evidence.

The present appeal is in many respects a retake of RB (Algeria) with one factual twist, which we are urged to treat as significant, and with recent additional Strasbourg cases, which Ms Harrison, junior counsel for the appellant, submits should be decisively significant.

MS is a national of Algeria, born on 12^th March 1976. He left Algeria in 1997 and entered the United Kingdom illegally. Between 2002 and 2005, he was a defendant in the notorious Ricin trial, charged with conspiracy to murder and conspiracy to cause a public nuisance. He was thus charged with terrorist activities or association. On 10^th November 2003, he pleaded guilty to two counts of possessing a false instrument and was sentenced to 15 months imprisonment. On 2^nd October 2003, he applied for asylum. On 8^th April 2005, he was acquitted of the Ricin charges. On 10^th September 2005, the Secretary of State gave notice of intention to deport him. On 5^th August 2006, the Algerian Government responded to the British Government’s requests for information and special assurances concerning him. On 24^th August 2006, the Secretary of State issued a certificate under section 55 of the Immigration, Asylum and Nationality Act 2006 that he was not entitled to the protection of Article 33(1) of the Refugee Convention on the grounds of national security. He challenged this before SIAC who, on 14^th May 2007, gave a judgment finding that the national security risk he posed by 2007 was insignificant. They did not therefore dismiss his asylum claim under section 55(4) of the 2006 Act but allowed his appeal against the decision to deport him on national security grounds.

On 13^th February 2008, the British Government asked the Algerian Government whether the assurances remained valid in the light of these developments. On 17^th February 2008, the Algerian Government confirmed the previous assurances in identical terms. On 16^th January 2009, the Secretary of State notified her decision to give directions for his removal as an illegal entrant without leave to remain. MS appealed this decision and his appeal was determined by SIAC on 26^th March 2010. SIAC found that his removal to Algeria would be lawful and that there would be no real risk that he would suffer treatment in contravention of Article 3. The decision turned on the assurances, it being uncontroversial that without them there would be a significant risk of ill treatment contrary to Article 3. SIAC refused permission to appeal. On 23^rd September 2010, Maurice Kay LJ granted permission on one open ground and one closed ground of appeal. He refused permission on other grounds. The application for permission is renewed before us on two open grounds.

Before SIAC, detailed evidence was given by the FCO official responsible for what is known as the Deportation With Assurances programme, Mr Anthony Layden. He had previously been in the diplomatic service ending up as HM Ambassador to Libya. In 2006, the FCO sought and received assurances for the safety on return of seventeen Algerians, one of whom was MS. Details of the diplomatic communications leading to assurances given by the Algerian Government are in paragraphs 10 to 18 of SIAC’s open judgment in the present case. The first SIAC judgment in MS’s case was given on 14^th May 2007. It reached a conclusion that, whatever national security risk he may have posed in 2002, the risk was now insignificant. This conclusion might have meant that it was not strictly necessary to consider his safety on return. The first SIAC judgment reckoned that he was unlikely to be charged and prosecuted on return to Algeria. Two other relevant Algerians who had been returned had not been charged.

However, the FCO communicated the first SIAC judgment to the Algerian Embassy and, on 13^th February 2008, asked the Algerian Government to confirm that the original assurances for MS remained valid. The note making this request asserted that his continued presence in the United Kingdom would not be conducive to the public good. SIAC concluded in the present case that this was not misleading because the first SIAC judgment made clear that he was neither a terrorist nor a knowing accessory to acts of terrorism, and that he was lower in the hierarchy than two others who had already been returned. On 17^th February 2008, the Algerian Ministry of Justice confirmed the assurances in terms identical with the original assurances.

It was contended on behalf of MS that the Secretary of State had made use of the DWA programme in circumstances for which it was not intended, and that to do so was arbitrary, indiscriminate and unlawful. It was submitted that there was a policy not to seek assurances for ordinary asylum seekers who are not a threat to national security and that MS had become one such. It was submitted that Maitre Amara, the Algerian High Court Judge designated to deal with these matters, was not competent to give the assurances. It was further submitted that SIAC should decide the appeal as if no assurances existed, in which event it was agreed that MS’s return to Algeria would not be safe. It was further submitted that, because the assurances for him were not within the DWA programme, the Algerians might in practice decline to give effect to them. As to the matter of Maitre Amara’s competence, SIAC decided that Mr Layden’s confidence in the authority and competence of his diplomatic counterpart without diplomatically inappropriate direct proof was justified.

As to the submission that reliance on assurances in MS’s changed circumstances was unlawful, SIAC considered that after the first SIAC judgment there was no policy covering his situation, and that it was entirely proper to seek confirmation of the original assurances in his case. The Home Office sought no new assurances for none were needed. They did not need to renew the old ones, because they were still live. They told the Algerians what had happened, made clear that the risk posed by MS had been downgraded and asked them to confirm that the original assurances still applied. The response in terms confirmed that they did. There were no differences whatever between the two operative assurances and the second is said in terms to be a reiteration of the first. The challenge to the validity of the assurances therefore failed.

SIAC then considered MS’s safety on return. They referred to Chahal, Saadi and RB (Algeria), and said correctly that the question was one of fact for them. Ten previous cases had considered the reliability of Algerian assurances, in one of which it had been said to be barely conceivable that the Algerian Government would put ties between the United Kingdom and Algeria at risk by reneging on solemn assurances. SIAC considered that it was incumbent on them to look with care at the safety issue in all its aspects and not merely rubber stamp previous decisions. But these decisions constituted a continuum of developing understanding and appreciation of the relations between the two countries which simply could not be ignored, and could safely be built on, in the absence of new evidence which undermined it or called for a new assessment to be made. They considered the issue in the light of the four tests or yardsticks referred to in RB (Algeria), to which we have referred.

As to the first test, previous SIAC decisions had concluded that the terms of the assurances were such that, if they are fulfilled, MS would not be subjected to treatment contrary to Article 3. They were entirely satisfied that the assurances were asked for and given in good faith. As to whether there was a sound objective basis for believing that the assurances would be fulfilled, it remained in Algeria’s national interest to do so, and the best indicator of whether the assurance would be fulfilled was the experience of those who had been returned to Algeria to date. This had been exhaustively considered in earlier judgments. There was additional evidence of letters written by one Algerian who had been returned, referred to as Q, claiming that he had been tortured, beaten and humiliated in a police station; and a new witness statement from Gareth Pierce, a former solicitor of MS’s, including an anonymous description of Q’s trial. This was inconsistent with previous detailed and, to an extent, documented evidence which contained no contemporaneous such complaint. SIAC concluded that it was not evidence which constituted substantial grounds for a conclusion that there was a real risk of ill treatment of MS, if he is returned. SIAC then considered others who had been returned to Algeria, concluding that there was useful objective evidence indicating that the assurances for MS are likely to be fulfilled in the future.

As to verification, it was submitted that a proper verification system would be a deterrent to rogue officers tempted to torture or ill treat MS on his return. The FCO’s original position was that independent monitoring was appropriate. Algeria consistently refused to countenance this, so the United Kingdom pragmatically withdrew its insistence. A previous SIAC decision had considered this issue and concluded that Algeria’s position was not sinister, but rather the reaction of a sensitive, rather prickly state. This was followed in BB and the present SIAC agreed with it. SIAC then said (paragraph 68):

“In place, therefore, of independent monitoring the current system relies on contact between families and Algerian lawyers with the British Embassy. Embassy staff do not routinely visit prisons or attend trials of non-UK nationals, but are in touch with the NGOs such as Amnesty International and Human Rights Watch. Mr Layden said that if there was a credible allegation that a returnee had been ill treated they would treat that as a good reason to ask the Algerians to see the person concerned and he believed that they would be allowed to do so. If they did not there was an apparent breach of the assurances. The first step would be to take the matter up with the Algerian authorities at the level of Maitre Amara and, if his response was unhelpful or unsatisfactory, it would be taken up at higher ministerial level, if necessary to the President himself. He has had discussions with the current Foreign Secretary on this topic and understands him to support the principle that the assurances should be supported, if necessary, by such action.”

They said that documents relating to Q and H showed that this system worked tolerably well. SIAC then referred to the passage in the opinion of Lord Hoffmann in RB (Algeria) to which we have referred, to the effect that there is no rule of law that external monitoring is required; and that the question depends on the facts of the particular case. The position in MS’s appeal was no different from that which prevailed in RB (Algeria) and SIAC’s judgment was the same. They were satisfied that verification of the fulfilment of the assurances was capable of being achieved by the means currently in place and by the determination of Mr Layden to ensure that significant breaches do not go unreported, but are pursued in a vigorous manner.

There are three extant open grounds of appeal, the first two of which, argued by Mr Muller, require permission. There was also an application to adduce and rely on fresh evidence. The first ground restates the contention which failed before SIAC that reliance on Algerian assurances is unlawful in MS’s case because it would be contrary to publicly stated policy to do so. Much paper and ink have been spent on the detail of this, but it is essentially a very short point. It is said that the policy, as stated for instance by the Home Secretary in Parliament and in response to the United Nations’ committee against torture and a statement to the government of Pakistan, is only to use the DWA programme for asylum seekers who are regarded as terrorists or a threat to national security, because it is their status as such which renders them at risk of ill treatment contrary to Article 3 on their return and because their return nevertheless is in the public interest. The policy does not extend to ordinary asylum seekers, and MS has become an ordinary asylum seeker who is not a terrorist or a threat to national security. He is therefore outside the policy and to rely on it for him is unlawful. It also has the effect of side-stepping his rights under the Refugee Convention.

There is an air of Alice in Wonderland unreality about this submission. If MS were an ordinary failed asylum seeker, he could be returned to Algeria without risk of ill treatment contrary to Article 3 and there would be no need for assurances. But the Secretary of State’s view is that for him assurances are necessary for his safe return, and Mr Muller on his behalf was understandably not prepared to agree that he could safely be returned without them.

The fact, however, is that MS is not just an ordinary failed asylum seeker, nor is he to be regarded as such simply because technically he is now being removed as an illegal entrant. He is a person whom historically the Secretary of State regarded as having terrorist associations for which he was prosecuted and, notwithstanding his acquittal, as a threat to national security, which later SIAC regarded as insignificant. The important point is, not his formal status before the criminal courts and the Commission, but how, in the light of his history, the Secretary of State and, more importantly, the Algerian authorities regard him. The very fact that he himself disclaims his safety on return without assurances shows that a risk is seen to exist which must derive from his past history. SIAC were therefore right to conclude that there was no policy covering his situation. He was certainly not in a category for which the Secretary of State had disclaimed the use of the DWA programme. There was nothing unlawful about seeking to get confirmation that the original existing assurances remained in place for him. It is not, therefore, necessary to address Ms Giovannetti’s further submission that, even if a decision is a departure from or extension of existing policy, it does not follow that it is not in accordance with the law. The Secretary of Sate’s reliance on the assurances does not side-step MS’s rights under the Refugee Convention, because effective assurances address and sufficiently eliminate the risk which would entitle him to rely on the Refugee Convention. We refuse permission to appeal on ground one.

The second proposed ground of appeal is that SIAC were wrong to conclude that the assurances were valid when there was no direct evidence that Maitre Amara had authority to give or confirm them in the changed circumstances. Reference is made to Khemais v Italy (246/07) at paragraph 59, which is no more than a factual observation in a different case. SIAC’s decision in the present case was a finding of fact entirely available to them on the evidence as set out in paragraph 29 of the SIAC judgment. The finding was one of inference, but it was an inference that was open to them to reach for the reasons which they gave. It made no difference that MS was now being removed as an illegal entrant, since the circumstances and content of the first SIAC decision were properly conveyed to Maitre Amara. It is fanciful to suppose that he did not understand the nuances of the changed situation and the reason why confirmation of the assurances was sought; fanciful also that he did not obtain such authority as the occasion required. There is no appeal from such a finding of fact, and we accordingly refused permission to appeal.

The third ground of appeal concerns verification. On this issue, as we have seen, SIAC found that this case did not differ from RB (Algeria). Ms Harrison, on behalf of MS, submits that RB (Algeria) requires reconsideration in the light of a more recent decision of the European Court of Human Rights. There are in fact several such decisions relating to the removal of Tunisian asylum seekers from Italy to Tunisia. But they originate with Ben Khemais, and the subsequent cases do not add anything material to the first. Ms Harrison submits that SIAC made an error of law in this case in concluding that the Algerian assurances were capable of obviating the risk of ill treatment contrary to Article 3 when there was no means of independent verification of the treatment if MS is returned.

Ben Khemais v Italy is a decision of a seven judge Strasbourg court which is only officially available in French. This does not suggest that it is a ground breaking decision, which on examination it is not. The Italian authorities were intending to return the applicant Tunisian to Tunisia. He claimed that on return to Tunis there was a real risk that he would be ill treated in contravention of Article 3 because of terrorist associations. The court examined the evidence and directed itself to the Grand Chamber decision in the Saadi case, concluding (paragraph 56) that there was such a real risk. It then remained to check if assurances provided by the Tunisian authorities were sufficient to avoid this risk. The court recalled from Saadi that the existence of international texts and the acceptance of international treaties guaranteeing fundamental rights was not enough to ensure adequate protection against the risk of ill treatment when reliable sources tell of practices of the authorities, or tolerated by them, which were manifestly contrary to the principles of the Convention. Secondly, the court had to examine if the assurances given by the State of destination provided a sufficient guarantee in their effective application as to protection against the risk of treatment forbidden by the Convention. There is then explicit reference to paragraph 148 of Saadi, to which we shall return.

The court then observed that the Solicitor General had given assurances, which rested on a number of elements. The court noted (paragraph 59) that it was not established that the Solicitor General was competent to give these assurances. The court was not convinced that there was an effective system of protection against torture given that serious and reliable international sources indicated otherwise. They noted that, in Saadi, the court observed a reticence from the Tunisian authorities to cooperate with independent organisations for the defence of human rights. It was impossible for the petitioner’s representative before the court to visit his imprisoned client in Tunisia, which confirmed the difficulty of access of Tunisian prisoners to independent foreign counsels. There was therefore a risk, once the petitioner was deported to Tunisia, that it would be impossible for his representatives or the Italian Government to check his situation and to know of possible grievances he might raise as to his treatment. Under these circumstances, the court could not subscribe to the thesis that the assurances in that case offered an effective protection against the serious risk that the petitioner would be subjected to treatment contrary to Article 3. Matters raised by the Italian Government could demonstrate that the petitioner had not suffered treatment contrary to Article 3 during the weeks following his deportation, but they did not foresee his fate in the future. The court reiterated its observations as to the impossibility of the petitioner’s representative and the Italian ambassador in Tunis visiting him in prison and checking the effective respect of his physical integrity and human dignity.

We observe, first, that the court in Ben Khemais applied Saadi and did not purport to extend it; and, second, that the decision that the assurances were insufficient depended on an amalgam of factual considerations, only one of which was the impossibility of independent verifications.

Saadi was also a case where a Tunisian suspected of international terrorism was to be deported by the Italian authorities to Tunisia. The Grand Chamber of the European Court of Human Rights concluded (paragraph 146) that there was a real risk that the applicant would be subjected to treatment contrary to Article 3 if he were deported to Tunisia. The matter of diplomatic assurances is dealt with in paragraphs 147 to 148. The Tunisian authorities had not initially provided such assurances. They subsequently observed that Tunisian laws guaranteed prisoners’ rights and that Tunisia had acceded to the relevant international treaties and conventions. The latter part of paragraph 147 and most of paragraph 148 is reproduced verbatim in paragraph 186 of the opinion of Lord Hoffmann in RB (Algeria). Lord Hoffmann concluded (paragraph 187) on the strength of paragraph 148 in Saadi that the question whether assurances obviate the risk is a question of fact to be decided in the light of all the evidence. This incidentally sustains Ms Giovannetti’s submission that the four tests for the sufficiency of assurances in BB and RB (Algeria) are to be looked at as a whole. Lord Hoffmann then proceeded to his decision (paragraph 193) that there is no rule of law requiring external monitoring. It all depended on the facts of the particular case.

The position in summary therefore is as follows. Saadi decides that the sufficiency and effectiveness of assurances are questions of fact in all the circumstances. RB (Algeria) applied Saadiin concluding that there is no rule of law requiring external monitoring. Ben Khemais also applied, and did not extend, Saadi in concluding that in that case the assurances were not sufficient to obviate the risk of violation of Article 3. One element of that factual judgment was that there was no possibility of independent verification. But it is not a decision to the effect that independent verification is necessary in every case, and we note that there was no reference to RB (Algeria) nor to the four tests there considered. Neither Ben Khemais nor the subsequent Italian/Tunisian cases has any bearing on the continuing authority of RB (Algeria), nor on the appropriateness of the present SIAC applying it in the matter of verification of assurances. The factual decision in each of the two cases was very much the same.

Ms Harrison also seeks to advance factual matters in support of the proposition that the SIAC decision was wrong. But, as Ms Giovannetti points out, this court is only concerned with matters of law and there is no contention that the SIAC factual decisions were perverse.

For these reasons the third open ground of appeal fails and is dismissed.

A fourth and fifth ground of appeal were not pursued before us in the light of subsequent Court of Appeal authority making them unviable. The same applies to the single closed ground of appeal for which permission was given and which Mr Pardoe did not pursue before us. These grounds are stayed to accommodate the possibility that the other cases may be successfully appealed to the Supreme Court.

There was recently added a proposed sixth open ground of appeal which sought to rely on fresh evidence mainly derived from another current SIAC Algerian case concerning a person referred to as T6. This evidence is said to indicate that the Algerian Government appeared to be treating the continued effectiveness of DWA arrangements as dependent on the return of T6. We summarily declined to entertain this ground (which was not vigoursly pursued) for a number of reasons. First, this court is concerned in this appeal only with errors of law, and SIAC cannot have made an error of law in relation to evidence which was never adduced before it. Second, we were told that the SIAC judgment from which the evidence comes has yet to give a decision about its relevance and effect. It is certainly not for this court to second guess that decision on partial information. Third, if there are material developments subsequent to the currently operative removal decision for MS, the Secretary of State would become obliged to reconsider that decision, and we apprehend that the resulting decision would, in appropriate circumstances, attract a right of appeal, and, if not, be susceptible to judicial review.

SIAC gave a closed judgment and permission to appeal was given on one closed ground of appeal. This is not pursued because a subsequent Court of Appeal decision makes it unviable in this court. We held a closed session at which Mr Pardoe made short submissions in support of the open grounds of appeal. He supported with reference to closed evidence the contention for ground 1 that the DWA programme was not intended to extend to those who were not terrorist or national security suspects. This did not affect the principle nor our decision on that ground. Mr Pardoe further relied on certain closed evidence in support of the open ground three. This again did not affect the principle of our decision on that ground of appeal. He did not refer to closed material or make submissions in support of ground two. It is not, in our view, necessary for this court to give a closed judgment and we do not do so.

For these reasons, the single extant viable ground of appeal fails, and permission is refused for the two open grounds for which it is sought.

For these reasons, the appeal is dismissed and the renewed applications refused.