on the world: a view on human rights
Some things only look better on paper. Take, for example, diplomatic assurances not to torture deported terrorism suspects, given by states that are already bound not to torture as signatories of the UN Convention against Torture.
On 18 April, in a judgment that is now final, as Home Secretary Theresa May chose not to appeal within the 10-day period granted, judges at the Special Immigration Appeals Commission (SIAC) in London ended the long-running deportation case of six Algerian terrorism suspects. The appeal against deportation, lodged over a decade ago in 2005, concerned safety on return to Algeria.
In the months following the September 2001 attacks in New York, the government rushed through the Anti-Terrorism Crime and Security Act 2001 (ATCSA), which allowed the indefinite detention without charge or trial of foreign nationals who could not be removed or deported from the UK – largely due to the risk of torture on return – by having them certified as “suspected international terrorists” by the Home Secretary. Before the law was even passed, Amnesty International stated it would create “a shadow criminal justice system without the safeguards of the formal system.”
In 2004, the House of Lords famously ruled that indefinite detention without trial under this law was incompatible with Britain’s obligations under the European Convention on Human Rights (ECHR). The government’s response, with respect to foreign nationals, was the policy of deportation with assurances (DWA), whereby it sought to rely on diplomatic assurances given by receiving states that individuals deported to them would not be at risk of torture.
Memoranda of understanding (MoU) were quickly signed with Jordan and Libya (now discontinued). On 11 July 2006, Algeria agreed to a formal exchange of letters with the UK. On 11 August 2005, 9 Algerians and a Jordanian were arrested, pending deportation on this basis. At this stage, the agreement with Algeria was still under negotiation.
The original appeals were heard and dismissed by SIAC in 2006 and 2007; it held that the assurances given by the Algerian government meant that their human rights would not be violated on return. Some of the men were able to successfully appeal to the Court of Appeal, and the past decade has seen a robust round of pinball in the courts, with the cases going all the way up to the Supreme Court in 2012. The cases were not always heard together.
In 2013, SIAC again dismissed their cases and described the regime they were under as “ATCSA-lite”. Having been granted leave to appeal, the Court of Appeal, in January 2015, found that SIAC had made an error in law on some of the aspects of the claims made by the men under Article 3 (prohibition on torture) of the ECHR and whether there would be sufficient checks and verifications of the assurances given.
The case was then sent back to SIAC for consideration of these two points. The judgment was made on 18 April as closed (secret evidence), protected (dealing with protected material both parties had access to but not the public) and public judgments. The judges stated that their “conclusions are principally based on the OPEN evidence addressed in this judgment. We emphasise that the CLOSED and PROTECTED evidence lead us to the same conclusions as the OPEN evidence.”
Along with consideration of the assurances and the situation in the country, there was a focus on whether the men would be held in police custody upon return to the country (garde à vue) for up to 12 days and whether or not they would be tortured during this time, particularly at facilities run by the Algerian Security Service, the DRS.
Although the human rights situation has improved in the country, the judges stated that recent events “do not significantly reduce the need for verification of the assurances given.” Broader terrorism threats in the region also make the situation volatile and subject to relapse.
SIAC was not convinced that the Algerian Security Services, the DRS, which was reorganised in 2013 to give the executive greater powers over it, no longer pose as large a threat as they have done in the past. In an addendum, the judges stated that the January 2016 decision by the Algerian government to dissolve the DRS, and replace it with a body that is directly answerable to the president, does not affect the outcome of this ruling, especially as the head of the DRS and the new body, the DSS, is the same person: General Athmane Tartag.
There has never been any monitoring and checks of DRS detention. Redacted e-mails from the British Embassy in Algiers from 2014 included in the open judgment acknowledge that “In an Algeria context, there was never a realistic prospect of being able to monitor the whereabouts and well-being of the DWA deportees,” as it is the assurances given by the Algerian state that are relied upon.
SIAC concluded: “Viewing the evidence as a whole we are not convinced that the improvements in conditions in Algeria are so marked or so entrenched as to obviate the need for effective verification that the authorities will adhere to the assurances given. It is not inconceivable that these Appellants, if returned to Algeria, would be subjected to ill-treatment infringing Article 3. There is a real risk of such a breach. The different means of verification of adherence advanced by the Respondent do not, taken together, amount to a robust system of verification.”
Since their detention under the ATCSA 2001, the men have all been continually subject to partial or full deprivation of and restrictions to their liberty. In 2003, they individually lost appeals at SIAC against the Home Secretary’s certification that they pose a risk to national security. Since the basis of that certification is national security-classified, the men have never been allowed to know the specific nature of the risk they pose.
It is for this reason appeals are made to SIAC, which has been given statutory power to hear secret evidence in national security-sensitive cases. Having spent almost the whole of this century subject to some form of detention, they have never been charged or convicted of terrorism offences in the UK, or know what they are suspected of.
Various bail conditions since their 2005 arrest have involved strict restrictions on the use of telephones and communication media, including bans on internet use, curfews on when they are allowed to leave their approved residences, including when performing such mundane tasks as taking their children to school.
There were also restrictions on who they could meet and associate with. Visitors to an individual residence had to be vetted by the Home Secretary. As all the men are from a refugee background, it is unlikely that many of their former associates and friends from their refugee communities would want to go through such a procedure due to their own vulnerability. In practical terms, this also meant that an electrician or plumber would need to be vetted before being allowed to fix faulty cables or a broken boiler.
For individuals who were married, especially if they had children, the restrictions amounted to collective punishment, as spouses and children would be subject to many of the same restrictions, such as visitors to the home, and children would not have access to the internet at home to do their homework, or be allowed to have a mobile telephone. With the men having to wear electronic tags, there was also the constant fear of the tag not working, police raids on homes, and breaking curfews.
In July 2015, one of the men, Y, told The Guardian newspaper about these restrictions, some of which include:
“Visitors are not permitted to remain in his home overnight. He has recently been given permission to buy a computer, but he must connect to the internet by cable, and is barred from using email, Skype or any form of social media. If he attempts to do so, he may be sent to jail.”
Coupled with the risk of deportation to potential torture in Algeria, the judgment acknowledged, as stated in evidence by their lawyers during the hearing, three of the men were at risk of suicide if deported. One of the original appellants in the case, G, had his appeal allowed in 2013 on suicide risk and mental health grounds.
Given that the men are still certified a risk to national security, although they can no longer be deported, it is highly likely that they will still be subject to some lighter restrictions, and are thus not entirely free.
DWA or DOA?
The judgment in this case demonstrates that the basis of the exchange of letters between the Algerian and British governments is diplomatic and not legal: the incentive to enforce them is to improve bilateral relations, not human rights or international treaty obligation compliance. In 2005, as this case was kicking off, then UN High Commissioner for Human Rights Louise Arbour stated, “Diplomatic assurances basically create a two-class system among detainees, attempting to provide for a special bilateral protection and monitoring regime for a selected few and ignoring the systematic torture of other detainees, even though all are entitled to the equal protection of existing UN instruments.”
By negotiating such instruments, the British government has endorsed the torture practiced in states such as Algeria. Nonetheless, such judgments embarrass bilateral relations, as in spite of recent legal changes in Algeria, and assurances by both the British and Algerian governments, an independent court still decided that those assurances are unreliable and the situation in Algeria is not safe.
The case has already had ramifications elsewhere: in Canada, lawyers for Mohamed Harkat, who has been fighting deportation on the basis of a national security certificate to his native Algeria for the past 14 years, intend to use this judgment in his defence. His lawyer, Barbara Jackman, stated, “The U.K. judgment appears to be solidly grounded in the framework of human rights protection obligations.” Canada has sought similar reassurances from Algeria in order to deport him. Unsurprisingly, Britain’s own practice was inspired by Canada.
The British government has failed to deport anyone on the basis of assurances given by the five countries it has concluded agreements with. One of the special advocates in the case, Martin Goudie, a security-vetted barrister who represented the appellants in the closed case, stated, “This does not bring an end to DWA, but […] is a significant blow to it.” Later this year, such assurances will come under scrutiny again when SIAC hears the deportation to Jordan case of N2.