on the world: a view on human rights
Buried in the basement of Field House, off Chancery Lane in London, where the Upper Tribunal hears asylum and immigration appeals, is the Special Immigration Appeals Commission (SIAC), a special court that hears appeals against deportation or deprivation of citizenship on national security grounds. For the past 10 years, SIAC has been a battleground pitting successive Home Secretaries mainly against terrorism suspects who cannot be prosecuted, and face the prospect of deportation on grounds never disclosed to them to countries known for their use of torture.
SIAC was set up by statute in 1997 in response to the government’s failed attempts to deport foreign terrorism suspects to countries where they would face a risk of torture, as this would be a breach of the UK’s obligations under the UN Convention Against Torture and Article 3 of the European Convention on Human Rights (ECHR). It was created to deal with a handful of exceptional cases.
SIAC introduced the use of classified secret evidence in court, or closed material procedures (CMP), usually for the benefit of the state party and not the appellant, disclosed to the judge but not the appellant or their lawyers in open court. Instead, they are represented in ‘closed hearings’ by a special advocate, a security-vetted barrister who, once privy to this classified evidence, can no longer communicate with the appellant or his/her counsel. The appellant is thus denied a fair opportunity to fight the deportation or know the full case against them. The use of the special advocate is considered a way of working around this restriction on fair trial rights.
In December 2001, the British government’s response to 9/11 was the enactment of the Anti-Terrorism, Crime and Security Act (ATCSA) 2001. This controversial law allowed the indefinite detention of foreign nationals pending deportation even though deportation was not a realistic option” because of the danger that they would be tortured in their home countries”. It required a derogation of Article 5(1) ECHR on the right to liberty.
Seventeen Muslim Middle Eastern nationals were detained between 2001 and 2004, and held at HMP Belmarsh. Indefinite detention quickly took its toll: at least two detainees were transferred to Broadmoor high-security psychiatric hospital and one, G, was released under strict bail conditions tantamount to 24-hour house arrest, as his mental health deteriorated considerably. The Home Secretary nonetheless attempted to block this.
The men appealed their detention through SIAC in 2002. The political nature of the question put to the courts was recognised when nine detainees won a famous victory in December 2004, in which the House of Lords declared the provisions on indefinite detention incompatible with Britain’s obligations under the ECHR.
Deportation with Assurances
Bolstered by the need to act following the 7/7 attacks in July 2005, where foreign nationals are concerned, the focus shifted to deportation with assurances (DWA), or reliance on diplomatic assurances obtained from receiving states that individuals deported to them would not be at risk of torture. Britain is not the only western state to adopt this controversial measure which condones the use of torture through the back door, but it “has been the only EU Member State formalizing bilateral diplomatic assurances for national security-related deportations in the structure of standardized blanket Memoranda.”
The UK currently has bilateral agreements in place with five states: memoranda of understanding (MoU) with Morocco (2011), Lebanon (2005), Jordan (2005), Ethiopia (2008) and an exchange of letters providing assurances with Algeria (2006). A 2005 MoU made with the Gaddafi regime in Libya was discontinued in 2011. The problematic nature of such assurances was described succinctly by the parliamentary Joint Committee on Human Rights in 2006:
“The pursuit of bilateral agreements in relation to torture undermines the multilateral framework of the UN and other treaty bodies concerned with the eradication of torture. […] the use of diplomatic assurances against torture undermines that universal legal prohibition, and presupposes that the torture of some detainees is more acceptable than the torture of others. […] it risks damaging the validity and effectiveness of international human rights law as a whole.”
The criticism continues. In July 2015, the UN Human Rights Committee expressed its “concerns” that the UK “continues to rely on its Deportation with Assurances (DWA) policy to justify the deportation of foreign nationals suspected of terrorism-related offenses” at risk of torture. In addition, many of the appellants who were detained under the ATCSA 2001 remain detained and caught up in a secretive appeal system.
Internment gave way to house arrest, under strict bail conditions which can include restrictions on an appellant’s movements, whom they can meet, when they are allowed to leave home, security vetting for home visitors, restrictions on the use of communication technology, etc. Where individuals have spouses and children subject to the same restrictions, the impact is effectively collective punishment.
In recent years, bail conditions have been relaxed somewhat but the government maintains effective total control over the lives of these men. The mental health implications for all involved have been severe. The story of Y, who has been fighting deportation since 2003, highlights the day-to-day difficulties the appellants face.
Picking up the Baton
Since 2010, both the previous Conservative-Liberal Democrat Coalition government and the current Conservative government have emphasised their commitment to continuing DWA, in spite of criticisms from human rights NGOs and international organisations. In one of his first major security speeches as prime minister in 2010, David Cameron stated that “we should redouble our efforts” in this regard.
Only one new MoU has been made with Morocco in 2011. In the past decade, the DWA policy has seen 12 people removed from the UK. In each case, they voluntarily chose to leave the country. In many cases, it was simply an inability to deal with the stress and arbitrary nature of the situation.
Diplomatic assurances are political instruments. The government’s Special Representative on Deportation with Assurances, Anthony Layden, who resigned from this post in early 2015 citing the failure of the scheme, was previously ambassador to Morocco and Libya and negotiated the MoU with all states, most notably Libya when he was also the ambassador to that state. In his capacity as the Special Representative, he also acted as the government’s expert witness, a position which no doubt involves a conflict of interest.
Furthermore, Layden was ambassador to Libya in 2004 when Britain intelligence was involved in the rendition to torture of a Libyan dissident and his pregnant wife in close collusion with the CIA; the case is currently going through the courts. It is this collusion that is reported to have brought the Gaddafi regime out of the cold and consequently the conclusion of the MoU. Confidence in such assurances is also undermined by the fact that British national Andy Tsege has been held incommunicado for over a year and faces the death penalty in Ethiopia.
The specifications for the recruitment of a new Special Representative include: “excellent knowledge of human rights issues, particularly in the Middle East, North Africa, South Asia and sub-Saharan Africa”, assuming the regions from which people likely to pose a certified security risk to the UK originate.
Let’s Review this
DWA was one of six areas considered in the Coalition government’s 2010 review of counter-terrorism and security powers, which failed to address key criticisms; it recommended the government “actively pursue deportation arrangements with more countries.” In light of this review, a Foreign and Commonwealth Office (FCO) report “reaffirmed extending DWA as a Government priority” and announced an independent review of the policy.
On 21 November 2013, Home Secretary Theresa May officially commissioned this review to be carried out by David Anderson QC, the independent reviewer of terrorism legislation. The review invited submissions, which were provided by NGOs and experts in the field. One of the key criticisms made was of the government’s premise that “Deportation with assurances enables us to deport foreign nationals suspected of terrorism in compliance with our obligations under the European Convention on Human Rights, the UN Convention on Torture and the International Covenant on Civil and Political Rights.”
The review was provisionally due to be published by the end of 2014 with the government response in early 2015. Since the initial enthusiasm, there has been silence about the review and its outcome. With the focus on the May 2015 general election, publication of the review may have been delayed, yet there has been no further mention since the election. Free of former coalition partner the Liberal Democrats, the Conservative government may no longer feel the need to review a policy with which it is satisfied. It may also feel that it has made at least two gains from the policy:
i – Fait accompli
In the pipeline since 2011, the review was announced months after the most high-profile SIAC appellant, Jordanian Abu Qatada (Omar Othman), was removed from the UK on 7 July 2013. Hailed as a success for the government, after 12 years and £1.7 million on legal costs, Othman’s removal was a pyrrhic victory for many reasons.
In 2012, Othman took his case to the European Court of Human Rights in Strasbourg; for the first time, the court was asked “to decide on the reliability of assurances negotiated within the framework of a MoU”. In an unusual and politicised ruling, the full ramifications of which have yet to be felt, the court ruled that while Othman’s right to a fair trial, under Article 6 of the ECHR, would be breached, Article 3 on torture would not. On appeal in the UK, nonetheless, SIAC held he could not be removed on this basis.
In the end, Othman’s lawyer told SIAC he would agree to leave the UK on the basis of the negotiation of a separate mutual legal assistance treaty between Jordan and the UK, which would ensure greater fair trial guarantees. Once the treaty was ratified by both state parties in early July, the Home Secretary issued a fresh deportation order which he did not challenge. Excluding torture evidence under this treaty, a year later a Jordanian court acquitted him of terrorism charges. Binding legal assurances trumped diplomacy.
ii – Silence in court
Although CMP are used in certain sensitive proceedings outside of SIAC too, the Coalition government’s controversial Justice and Security Act 2013 rolled out the use of CMP broadly across civil proceedings. According to statistics provided by the government, within the first year of the law, government ministers applied for CMP on at least five occasions (up until July 2014). Given that one of the first cases in which the government applied for CMP involved a former republican prisoner in Northern Ireland suing for unlawful detention, its intention in extending the use of such secret measures was quickly apparent.
Section 15 of this Act also granted SIAC new powers to review exclusion decisions and certain naturalisation and citizenship decisions, preventing appellants from knowing the grounds for exclusion or deprivation of citizenship. Since 2010, this method of excluding individuals deemed undesirable has been used increasingly. SIAC open judgments indicate that since 2014 such cases are an increasing and substantial part of its workload.
Business as Usual
The Ministry of Justice reported in March 2015 that there are currently 17 cases before SIAC. The main case is the joint case of at least 6 Algerian appellants against deportation; some of the appellants first lodged their appeals more than 12 years ago. Individually and jointly, the cases have travelled around the court circuit over the past decade, having been initially dismissed by SIAC in 2006 and 2007. The joint case was last heard by the Court of Appeal in July 2014, which accepted an appeal by the appellants that SIAC made an error in law in its determination that initial detention in Algeria would not amount to a breach of their Article 3 rights. The never-ending case has since been remitted to SIAC for rehearing and redetermination with a hearing anticipated in late 2015.
Only one of the appellants in the Algerians’ case, G, has had his appeal allowed; he is allowed to remain in the UK “on suicide risk and mental health grounds”. Other appellants fighting deportation with assurances have been successful, particularly with respect to Ethiopia. Earlier this year, a joint French-Algerian appellant, who was excluded from the UK in 2005 and has not been able to join his British family here since then, won his appeal by relying on the avenues afforded to him with respect to disclosure and immigration under the rules of the European Union. While some cases have finally come to an end, the trajectory of others is just starting.
Deportation to extradition*
A US case earlier this year demonstrates that a successful appeal at SIAC does not necessarily mean the end of efforts by the UK government to deport an individual. In April 2009, 12 men were arrested by counter-terrorism police in the northwest in Operation Pathway, foiling “a very big plot”. The arrests were precipitated when hours earlier top counter-terrorism official Bob Quick was photographed holding documents marked SECRET that displayed the supposed dates and places of the foiled attacks.
The suspects were subsequently released without charge as the Crown Prosecution Service (CPS) had insufficient evidence to prosecute. Nonetheless, it led to efforts to deport 11 Pakistani students arrested; the case was heard at SIAC. By the time the hearing started in March 2010, only two of the appellants had not voluntarily returned to Pakistan. SIAC held, largely on the basis of secret evidence, that they did pose a threat to the UK but due to the risk of their Article 3 rights being breached, they could not be deported. Placed under control orders as a result, one of the two quickly chose to return to Pakistan voluntarily. The other man, Abid Naseer, decided to stay and appeal the national security risk assessment made of him.
His appeal did not go ahead as in July 2010 he was arrested again pending extradition to the US. He lost his extradition battle in early 2013. Following a two-week trial in early 2015, he was convicted of providing material support to Al Qaeda and involvement in plots to bomb New York, Copenhagen and Manchester. Representing himself at trial, his 3 co-defendants admitted they did not know him.
The main evidence, which the case largely hinged on, was not available in 2009: in 2011, Navy SEALs raided Osama Bin Laden’s residence in Pakistan and killed him. A large number of documents were seized. This information would not have been available when the extradition request was made in 2010 either. A recent article questioning the official narrative on Bin Laden’s death could undermine the case against Naseer; during his trial, he had asked for this evidence to be excluded. Following conviction, the CPS maintained there was insufficient evidence to prosecute him in the state in which the offences took place.
The past 10 years have been an impasse, with successive governments insisting on the value of the costly DWA policy. The FCO’s 2014 Human Rights and Democracy Report reiterates the government’s position that DWA “has enabled the UK to reduce the threat from terrorism by allowing foreign nationals, who pose a risk to our national security, to be deported, while still meeting our domestic and international human rights obligations” even though all deportations have been carried out voluntarily.
There has been inadequate discussion or consideration of alternatives. DWA was introduced in 2005 in response to the House of Lords’ 2004 ruling; the other flank was the introduction of control orders. Immigration, the terrorist threat and asylum seekers are soft targets for the Conservative Party in its efforts to repeal the Human Rights Act 1998.
Commenting on these new policies a decade ago, political cartoonists looked a little further back in history to the Magna Carta of 1215. It is perhaps unsurprising that some of these cartoons featured in an exhibition at the British Library marking the 800th anniversary of the Magna Carta this year to highlight how very foreign such policies are to English law, and indeed any reasonable notion of law and legality.
* Not all cases before SIAC involve deportation with assurances, Muslims or Middle Eastern nationals. The common denominator is that the appellant has been certified a risk to national security. SIAC has, however, only ever heard the case of one female appellant.
Special thanks to Adrienne Burrows for her assistance
For more information on the issue and cases up until 2011: http://coalitionagainstsecretevidence.com/
A comprehensive 2009 report on Secret Evidence by Justice: http://justice.org.uk/secret-evidence/
Comprehensive 2013 article on the ramifications of the Abu Qatada deportation: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2406183
The Bureau of Investigative Journalism’s ongoing investigation on ‘Citizenship Revoked’: https://www.thebureauinvestigates.com/category/projects/deprivation-citizenship/