Background and history of the proceedings
The appellants are Algerian nationals who were found by the Special Immigration Appeals Commission (SIAC) to constitute a threat to the national security of the United Kingdom. Various Home Secretaries have been trying to deport them to Algeria for several years, which have given rise to protracted litigation. Some of the appeals to SIAC have failed on the ground that deportation to Algeria would not infringe the Appellants' human rights because of assurances given by the Algerian government about their safety and treatment on return.
The Appellants' further appeal to the Supreme Court however, succeeded in W (Algeria) -v- SSHD  UKSC 8.The cases were remitted to SIAC for a second and third hearing. On 25 January 2013, SIAC again dismissed the appeals of almost all the appellants bar one. Permission for a further appeal to SIAC was then granted following an oral hearing on 15 January 2014. With its judgment of 23 January 2015 (BB and Others v SSHD  EWCA Civ 9), the Court of Appeal remitted the matter to SIAC on two grounds. The first is that SIAC"failed to apply the full, nuanced and holistic approach of Babar Ahmad [Babar Ahmad v United Kingdom (2013) 58 EHHR 1] to the unusual circumstances of these cases" (paragraph 24). The second is that "SIAC erred in law by placing reliance on some sources of verification [of the effectiveness of Algerian assurances as to proper treatment of returnees] when the evidence did not permit it to do so..."
One of the central issues is the interpretation of the ECtHR judgment in Othman v United Kingdom (2012) 55 EHRR 1, and in particular the question of "whether compliance could be verified or monitored", which is critical in cases of deportation with assurances.
The central issue in this appeal regarded the conditions in which the appellants would probably be held for a period of up to twelve days on arrival in Algeria. The controversial period is known as garde à vuedetention. The Appellants based their claim on three main grounds: (1) that their rights would violate Article 3 of the European Convention on Human Rights and Fundamental Freedoms (ECHR); (2) that the SIAC erred in law by finding that there were adequate safeguards to enable verification of observance by the Algerian authorities of the assurances which have been given by the Algerian government, and (3) that the SIAC erred in law in referring to the fact that Algerian Security Service (the Département du Renseignement et de la Sécurité ["DRS"]) officers were present during discussions about the assurances and had subscribed to them, there being no open evidence to support such a conclusion.
The evidence found by SIAC in the open judgments in relation to garde à vue detention is that detention is carried out at the Antar barracks by the DRS. During a period of up to twelve days detainees are interrogated, with the purpose of obtaining material from them which might be used in subsequent proceedings. At the end of the period, the detainee, unless released, is handed over to the civilian authorities. If they proceed to detain him, it is within a general custodial institution and in conditions of a kind that were not criticised in these proceedings. The open judgment of SIAC included findings (amongst other things) that many of the cells in the Antar barracks were extremely primitive, the conditions were inadequate, detainees often had to sleep on the floor, had inadequate medical attention, solitary confinement, humiliations by guards and were being pressured to sign documents without understanding them.
The test under Article 3
The Court applied the test used by the Court of Appeal in Babar Ahmad to establish that the approach does not alter where removal is sought on national security grounds. Moreover, in determining whether the risk goes beyond the Article 3 threshold, the approach does not vary where there are diplomatic or prosecutorial assurances involved. The test is whether there are substantial grounds for believing that an Appellant faces a real risk of being subjected to treatment contrary to Article 3. A fanciful risk will not suffice.
Following Al-Skeini v SSHD the Court also considered that the deliberate infliction of ill treatment would more readily be found to be of sufficient severity so as to breach Article 3.
The Respondent conceded that the there was a real risk of the Appellants being detained on return in garde à vue detention, in fact the case was conducted on the assumption they would all be detained for a period. Therefore the decisive issue in this case was the effectiveness of the assurances given, and the verification of adherence to these assurances.
The main characteristics of the assurances in this case were:
- An exchange of letters between the British Prime Minister and the Algerian President, each assuring the other of their firm commitment to international law and human rights and in particular, the right to a fair hearing and the right of presumption of innocence.
- Correspondence between the British ambassador in Algiers and the Algerian Directorate General of Judicial and Legal Affairs, which included several obligations on behalf of the embassy.
- A letter from the Algerian authorities concerning one of the Appellants, guaranteeing (amongst other things) that if Y was arrested in Algeria he would enjoy a series of rights including rights to appear before a court and the right to be examined by a doctor.
The case thoroughly emphasised the degree to which Algerian National interest is served by having good relations with the UK. It was clear that the Government of Algeria would have an interest in honouring the assurances.
The Appellants had all been identified by the UK government and by SIAC as having a history of involvement in Islamist terrorism linked to Al Qaeda. This fact, combined with the geopolitical and the increase in Islamist activity in the Maghreb, would have led to a greater individual and specific interest by the DRS upon these individual Appellants if returned to Algeria. It was submitted that because DRS officers have the status of "judicial police officers" they have a formal power to detain. Due to the fact that the Appellants were alleged terrorists, it would be the DRS who would exercise detention under garde à vue, which the US State Department identified as problematic due to the "overuse of pre-trial detention".
Even though the Respondent suggested that there had been an effective modernisation of the DRS in recent times, including that it was "moving towards a role more akin to a traditional intelligence agency", the Appellants presented evidence showing that DRS officers appeared to operate with effective impunity, since there was no known example of a DRS officer being made the subject of either a disciplinary or legal action.
The Court concluded that it could not regard the evidence as bringing us to the point (as was submitted by the Respondent) that the level of concern was so reduced that there was a diminished need for effective verification of adherence to the assurances.
With regards to verification of assurances, there was the issue that there could be no monitoring of anyone detained by the DRS, as there had been no access to any DRS facility; there had been no contact between the British Embassy and the DRS; and an independent expert's request for such a meeting was refused.
As SIAC has stated previously in BB: "Verification can be achieved by a variety of means, both formal and informal and by a variety of agencies, both governmental and non governmental. Monitoring is one means of verification but not the only one."
The British Embassy
The SIAC accepted that the British embassy's role and capacity meant that it would not take positive steps of its own to verify or report on breaches of assurances. It would depend almost entirely on family members or somebody else coming to them with complaints or reports. If such complaints were not considered "credible" and were not supported by corroborative evidence, medical evidence, or an adequate route to judicial judgment on the point, it would be difficult for any effective action to emerge from the complaint.
The SIAC concluded that they were not convinced that the improvements in the conditions in Algeria were so significant as to remove the need for effective verification that the authorities would adhere to the assurances given. It was "not inconceivable" that if the Appellants were returned to Algeria their article 3 rights would be infringed and there was a "real risk" of such a breach. It was also considered that the different means of verification of adherence advanced by the Respondent did not amount to a robust system of verification. Therefore, the appeals were upheld.