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Deportation with Assurances: Flogging a Dead Horse?

At the end of 2013, a few months after the deportation of Jordanian terrorism suspect Abu Qatada, then Home Secretary Theresa May commissioned David Anderson QC, the independent reviewer of terrorism legislation at the time, to review the policy of deportation with assurances, part of the basis of the deportation.

Boosted by Abu Qatada’s removal after a lengthy legal battle and affirmation of the principle of deportation with assurances (DWA) in a European Court of Human Rights (ECtHR) ruling, along with enthusiasm for the policy under the Conservative-Liberal Democrat Coalition government, the purpose of the review was to “make recommendations on how the policy might be strengthened or improved, with particular emphasis on its legal aspects.”

The review was due to be published by the end of 2014 with the government providing its response by early 2015. A call for evidence yielded nine written submissions followed up by meetings, a seminar and short visits to Jordan and Algeria in 2014. The review was finally delivered to the Home Office in 2017, shortly before David Anderson QC left the post. It was presented to parliament by current Home Secretary Amber Rudd on 20 July 2017. The delay, explained in the review, allowed Anderson and his co-author Professor Clive Walker QC “to take account of some significant recent developments.”

The report focuses on the six questions posed in the terms of reference. The report is divided into two parts: the first, prepared by David Anderson QC, looks at the background and use of DWA in the UK and answers the questions put to the review. The second, by Prof Clive Walker QC, provides an account of the international legal position and a comparative survey of practice in other states. It offers an interesting overview of the current situation.

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According to Anderson, the policy “aims to facilitate the deportation to certain receiving states of foreign nationals suspected of terrorism”. The objective is broadly “to obtain assurances from the government of the receiving state which are sufficiently credible to allow deportation to take place without infringing the human rights of the deportee or the obligations of the state under international law”. In other words, it is seeking assurances not to torture or abuse rights from states known to do so in spite of them having ratified international instruments to this effect.

Six such generic instruments have been negotiated by the UK government with the following states: Jordan, Libya, Lebanon, Algeria, Ethiopia and Morocco. The UK is the only state to negotiate such instruments as a basis to deport terrorism suspects.

On this basis, nine people were deported to Algeria between 2006 and 2009, two were deported to Jordan in 2012 and 2013 (Abu Qatada) and a “further person was subject to administrative removal to Morocco, with assurances in 2013”. Although the government and the reviewers cite this as a victory for the policy, these removals were either because the individual concerned voluntarily decided not to challenge, or continue challenging, the basis for deportation or in the case of Abu Qatada, a further instrument was negotiated to ensure fair trial rights (Mutual Legal Assistance Treaty – MLAT) upon his return to Jordan. Anderson concedes that “The story of the past 13 years has been of significant effort invested by the Government in DWA, incessant litigation but only a handful of positive results”.

Monitoring deportees upon return, an essential aspect of the assurances, has only been possible in Jordan and Algeria, and even then it has been problematic. The NGO monitoring the situation of the two returnees to Jordan had no prior experience of monitoring. Even in the case of Abu Qatada, taken as the benchmark of the success of the policy, breaches arose: “A military judge was selected for the initial panel, though this was later remedied. More seriously, evidence of a confession affected by torture (of Othman’s [Abu Qatada] alleged co-conspirator, Abd al-Nasser al-Khamaiseh) was admitted as evidence in two trials in 2014”.

In Algeria, monitoring was carried out by the British Embassy, which in practice meant: “The men had been provided with a contact number at the Embassy, but contact had been very limited and the Embassy told me that it did not know where any of the men were”. In 2016, the agreement with Algeria was discontinued after the courts found these assurances related to safety on return inadequate.

In recent years, the policy has faced further failures: two cases against Ethiopian nationals were not pursued and another case against an Ethiopian was withdrawn. A Moroccan whom the Home Secretary wished to deport on this basis decided to leave the country voluntarily before the paperwork was delivered to him. The latest case, of N2, a Jordanian national who had served a terrorism-related sentence, was withdrawn in July 2016 “after Jordan repeatedly declined to provide assurances under the MOU”. There are consequently “currently no live cases in which the Government is seeking to apply the policy of DWA”.

Does that mean the policy is now dead? Alas, no. According to Anderson, the inherent difficulties in the system, such as the length of court challenges, the use of secret evidence, and small number of people removed, have been exacerbated by geopolitical, legal and administrative factors since he was asked to conduct the review in 2013, such as instability in the Middle East and Africa, new legal hurdles created by the rules provided by the courts in cases such as that of Abu Qatada and the difficulty of monitoring the situation on return in terms of time, money and human resources. The terrorist threat has also evolved.

This, however, does not rule out the effectiveness of DWA for Anderson and Walker, and they rely on the Abu Qatada [Othman v UK] ruling by the ECtHR as evidence of its legal sanction, even though Anderson concedes: “In any event, the Othman judgment is far from absolute. It does not prevent the deportation of foreign nationals to countries where there is a real risk of torture: but it does require that risk (and associated risks of other flagrant human rights violations) to be mitigated so far as possible”.

In his part of the report, Walker contends that a lack of evidence in terrorism cases and applicable extradition agreements between states have seen a shift from extraditions to deportations. The obstacle presented by DWA is not the transfer of suspects but “their due process and safe and fair treatment on return”.

His argument is essentially that if the assurances provided are robust enough, they should work. He cites the examples of cases where assurances were insufficient, such as the Canadian Maher Arar who was rendered to torture in Syria and Belgian Ali Aarrass, where Morocco did not give assurances to Spain that it would not torture, only that he would not face a life sentence. Given that Walker also highlights the breaches of the agreement made with respect to Abu Qatada, it simply demonstrates that states that torture and abuse rights will torture and abuse rights.

Walker notes the criticism of human rights organisations and bodies such as the UN Committee Against Torture, which although it “has not completely ruled out the use of DWA but has formulated strict requirements for their effective use,” remains hostile to UK policy. The main legal support he cites for the policy is the Othman ruling in 2012.

Walker offers a worrying list of benefits of the DWA policy that include it being a better policy than “resort to less palatable (but apparently so tempting) methods such as detention without trial or illegal rendition”, offering better incentives to states than “legally binding general treaties”, and that it could serve the “general development towards better adherence to human rights standard-setting”. Furthermore, it is incorrect to assume that all persons subject to the policy are “fugitive terrorists”; such a label depends on the political relations with the regime in question. The Algerians and Libyans who found themselves subject to this policy were largely dissidents or refugees until relations improved with their regimes. It is further claimed that “alternatives to DWA are often not evidently more feasible, more ethically sound, or more appealing to victims”, yet there is insufficient discussion of alternatives.

Overall, the two authors agree that “DWA can play a significant role in counter-terrorism, especially in prominent and otherwise intractable cases which are worth the cost and effort, but it will be delivered effectively and legitimately in international law only if laborious care is taken.” The only example they provide that comes close to this, in a policy spanning almost thirteen years, is that of Abu Qatada, “the cost and effort” of which may be debated. Given the approach of the report, the legal arguments against DWA remain intact. What emerges from their discourse, however, is the impact various aspects of the case law and practices related to the application of DWA have had on the evolution of counter-terrorism policy in general.

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