CA FINDS THAT THE SIAC USED THE WRONG TEST IN CONSIDERING HUMAN RIGHTS ON RETURN OF ALLEGED ALGERIAN TERRORISTS

The Court of Appeal has remitted the matter for re consideration and. The case is a triumph for Human rights but shows the difficulty in applying the law in this type of case.

The Court of Appeal in BB, PP, W, U and Others v SSHD [2015] EWCA Civ 9 http://www.bailii.org/ew/cases/EWCA/Civ/2015/9.html has quashed a decision by the Special Immigration Appeals Commission (‘SIAC’) in which it had found that several Algerian nationals , who had been found to constitute a threat to the UK’s national security, could be returned to Algeria without their rights under Article 3 of the European Convention on Human Rights being violated. Article 3 states: No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

The case is the latest in a seemingly endless series of appeals involving removals to Algeria that have been heard in the UK courts since 2006. The central issue in the latest case concerned the conditions in which the appellants would be likely to be held for up to twelve days upon arrival in Algeria. Upon return to Algeria, the appellants would be held in garde a vue detention at Antar barracks for interrogation for up to twelve days. It was not in dispute that the purpose of the interrogation is to obtain material which might be used in subsequent proceedings.

The difficulty for the UK in this case was that a British citizen, AB, had travelled to Algeria in May 2012 to attend a wedding, and had been detained at Antar barracks for three days in a case of mistaken identity. Largely on the basis of AB’s evidence of his own treatment, it was accepted that garde a vue detention included the following features:

1. incommunicado detention for up to twelve days, without access to a lawyer or any visits (apart from a single fifteen minute telephone call to family);
2. the requirement to wear prison uniform which AB found humiliating and discriminatory;
3. captors not telling AB that he was under arrest and not disclosing their real names, giving rise to feeling of fear and inferiority;
4. solitary confinement;
5. Detention in a dark cell, with no light – AB’s words, “when they locked me in there I didn’t know what was happening or where I was. It was a horrifying feeling to be in that place not knowing if it was night or day.”
6. cell infested with mosquitoes – AB’s wife noticed that he was “bitten all over with mosquito bites”.
7. no bed or mattress in the cell. AB had to sleep on a concrete floor with only a blanket on two cloths.
8. AB was unable to sleep at all because of the conditions;
9. there was no furniture in the cell.
10. there were no toilet facilities, not even a bucket, in the cell.
11. the cell was “filthy …very dusty and damp”.
12. AB experienced breathing difficulties, including AB’s asthma attack.
13. lack of, or very tardy medical attention.
14. AB’s hearing aid was removed, causing sensory deprivation and feelings of fear and insecurity;
15. AB was not permitted to shave for the duration of his detention, notwithstanding the heat, the filthy conditions of the cell, the lack of a bed or adequate toilet facilities;
16. mockery and humiliation by the guards, including being “heavily mocked” while praying;
17. intimidating and intensive repeated interrogation by groups of men;
18. pressure to sign documents, including documents AB did not understand: “It was made clear to me that if I didn’t sign the document that they asked me to sign that I would not be released. I feared the consequences of not signing the documents. I did not want to sign them because I did not understand them but I had no choice and anyway by that stage I would have done anything”.

SIAC accepted that the conditions at Antar were “punitive in the extreme” and “hardly the conditions in which a detained man can prepare himself to deal adequately with interrogation”. A witness for the Home Secretary accepted that some of the treatment of AB had been “degrading”, and that the purpose of the garde a vue detention is the interrogation of suspects with specific purposes including the extraction of confessions (true or false). Despite this, SIAC found that AB’s “deplorable conditions” did not indicate the use of “unacceptable means” to break down his moral resistance as no physical violence had been used against him.

The Court of Appeal found that SIAC had misdirected itself regarding the test to be applied in assessing the Article 3 risk in prison cases. In coming to its conclusions on Article 3, SIAC had placed emphasis on the proposition in Batayav v SSHD, [2003] EWCA Civ 1489 that unlawful conditions of detention in a receiving state can only be established by “a consistent pattern of gross and systematic violation of rights under Article 3. The Court found that SIAC had “failed to apply the full, nuanced and holistic approach” taken by the European Court of Human Rights in Babar Ahmad v UK (2013) 56 EHRR 1 to the “unusual circumstances of these cases” In particular, the ECtHR had listed the following factors, among others, as having been being decisive that there had been a violation of Article 3 in the context of ill-treatment of prisoners:

• the presence of premeditation:
• that the measure may have been calculated to break the applicant’s resistance or will;
• an intention to debase or humiliate an appellant, or if there was no such intention, the fact that the measure was implemented in a manner which none the less caused feelings of fear, anguish or inferiority;
• the absence of any specific justification for the measure imposed;
• the arbitrary punitive nature of the measure;
• the length of time for which the measure was imposed; and
• the fact that there has been a degree of distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.

Whilst noting that these elements depend closely on the facts of the case and so will not readily be established prospectively in an extradition or expulsion case, the Court of Appeal referred to the unusual feature of the present case; namely the acceptance of AB’s evidence and the assumption that the appeallnats are at significant risk of suffering similar conditions. It found that SIAC had not fully confronted the question of whether the conditions at Antar were part of a deliberate attempt to diminish the resistance and morale of detainees so as to render them more likely to confess, whether truthfully or not. The Court of Appeal concluded that SIAC had not properly directed itself as to what Babar Ahmad requires by way of approach, and remitted the case to be reconsidered by SIAC.

The appellants also complained that SIAC had erred in finding that there were adequate safeguards in place to enable verification of observance by the Algerian authorities of assurances given by the Algerian government to the UK. This was despite the fact that the Algerians had refused to accept monitoring by external bodies of the conditions of detention at Antar. A similar finding in the earlier case of BB v SSHD, SC/39/2005, in which it had concluded that “even in the absence of monitoring, practical verification is feasible and will occur”, had been approved by the House of Lords in RB (Algeria). The Court of Appeal found that SIAC had erred in law by placing reliance on some sources of verification when the evidence did not permit it to do so. The Court felt that this was also a matter for SIAC to reconsider upon remittal.