Libyans win appeal against deportation despite MOU with Libya
A Memorandum of Understanding (MOU) in this context is an agreement between the UK and the likes of Libya, Egypt, Jordan, Lebanon and so on, consisting of a number of assurances regarding persons deported to that country.
These MOUs were born from the destruction by the Law Lords of Part 4 of the Anti-terrorism, Crime and Security Act 2001. They are part of a “twin-track” Government response – the other track being “control orders” (the Prevention of Terrorism Act 2005).
As an example, the MOU with Libya can be found in Appendix 1 of the judgement.
The most relevant assurances in the context of this particular case are nos. 3 and 8:
3. If arrested, detained or imprisoned following his deportation, the deported person will be afforded adequate accommodation, nourishment and medical treatment, and will be treated in a humane and proper manner, in accordance with internationally accepted standards.
8. If the deported person is charged with an offence he will receive a fair and public hearing without undue delay by a competent, independent and impartial civilian court established by the law. The person will be allowed adequate time and facilities to prepare his defence, and will be permitted to examine or have examined the witnesses against him and to call and have examined witnesses on his behalf. He will be allowed to defend himself in person or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
Notice there is no mention of torture, but rather treatment of “a humane and proper manner”. I suspect this is a matter of diplomacy!
With that in mind, here is the BBC:
Two Libyan terror suspects have won an appeal against deportation from the UK in a major defeat for the government.
The men, known only as DD and AS, argued they could be jailed and tortured if sent home, despite a special deal between the countries.
But in the first test of the case, the Special Immigration Appeals Commission said the men could not be sent back.
The government said it was “very disappointed” by the defeat and would immediately appeal the ruling.
Under international human rights law, the UK does not
- well, it may not, I do not know if it does -
deport people to regimes where they may face persecution or torture.
But in October 2005, the government signed an historic deal with Libya, under which Colonel Gaddafi’s government pledged not to mistreat anyone deported to Tripoli from the UK.
The judgement has been posted. It is a detailed (long!) and interesting read.
Here is the decision:
428. All the conclusions which we have reached reflect and are supported, at times strongly so, by the closed evidence. Although we accept that the MOU and other assurances have been given in good faith by Libya, and that there is no probable risk of a breach of Article 3 ECHR
This of course is the “Prohibition against torture: No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
Notice that it is absolute – unlike the other Articles there are no qualifications. This is important.
were the Appellants to be returned, there remains a real risk that that could happen. That is because there is too much scope for changes to happen, for things to go wrong, and too little scope for a breach of Article 3 to be deterred or for acts which might lead to a breach of Article 3 to be remedied in time, essentially through effective monitoring. There is also a real risk that the trial of the Appellants would amount to a complete denial of a fair trial. We do not exclude the possibility that the SSHD’s case for their deportation could be strengthened over time.
429. We reject the claim that removal would breach the Refugee Convention. We find that DD is excluded from the Refugee Convention.
SIAC decided he was a threat to national security. If you are a threat to national security you aren’t covered by the Refugee Convention.
But for DD’s exclusion from the Refugee Convention, the SSHD would be obliged to give effect to the Adjudicator’s decision that he was a refugee, since he cannot be safely returned to Libya, and Article 33(2) of the Refugee Convention, which would permit his removal, cannot be applied because of the ECHR.
430. We have given this decision anxious consideration in view of the risks which the Appellants could face were they returned, and those which the UK, and individuals who can legitimately look to it for the protection of their human rights, would face if they were not. We must judge that matter, at least in relation to Article 3 ECHR, by considering only the risks which the Appellants could face on return, no matter how grave and violent the risks which, having chosen to come here, they pose to the UK, its interests abroad, and its wider interests. Those interests at risk include fundamental human rights.
431. The decision of the ECtHR in Chahal , (1997) 23 EHRR 413 in 1996 provides the framework for that decision. It clearly requires us to consider matters in that way, however slight its reasoning or negligible its response to the substantial minority dissent on the problems posed by a direct threat comparable to that arising here to the interests of the country seeking removal, and on the protection to the human rights of others which the deportation of the Appellants would afford. That decision is part of its established jurisprudence, and in reality we are bound by it.
432. This outcome is not a consequence of the enactment of the Human Rights Act in 1998. The UK was party to the ECHR, the judicial interpretation or extension of which was revealed in Chahal, long before that decision, and the UK would have been obliged in any event to give effect to that decision as part of the established jurisprudence of the Strasbourg Court.
433. For the reasons which we have given relating to Article 3 ECHR, these appeals are allowed.
In July last year the Government announced that it was going to intervene in a Dutch case that would have implications for this “established jurispridence” following Chahal. I do not know how the outcome (if there is one yet).
Home Secretary John Reid said of Chahal that it meant
the United Kingdom Government could not consider the protection of the public as a balancing factor when arguing the case for the deportation of a dangerous person.
On the other hand he and the Government accept that Article 3 is an absolute prohibition on torture.
I wonder how Reid can reconcile this absolute with any sort of “balancing factor”!
As the JCHR said some time ago,
In our view, it follows from the Government’s acceptance of the absolute nature of the torture prohibition that considerations of national security cannot be balanced against the risk of torture, because that presupposes returning somebody to a risk of torture because national security trumps their right not to be tortured.
By the way, Prime Minister Tony Blair said of similar assurances our diplomats were trying to get from Egypt that
Indeed, why should we be assured that, for example, the deportee “shall receive no ill treatment whilst in detention”, or that “they shall receive a fair and public hearing by an independent and impartial judiciary”.