Deporting Suspected Terrorists on the Basis of Confidential Assurances

Yesterday the UK’s Special Immigration Appeals Commission decided that a number of suspected terrorists (the so-called ‘Pathway Students’) could not be deported to Pakistan as they faced a real risk there of being subjected to torture, inhuman or degrading treatment or punishment in contravention of Article 3 of the European Convention on Human Rights. The open decisions are available here and here. This was notwithstanding the fact that the United Kingdom, which had wanted to deport them, had in fact acquired diplomatic assurances/memoranda of understanding from Pakistan assuring that they would not be subjected to any such treatment. The difficulty identified by the SIAC was not necessarily with the deportation so to speak or even with the concept of acquiring such assurances (they are permissible in some cases—see my article here for a quick overview), but rather with the fact that the assurances were to be kept confidential and, as a result, could not really be challenged or measured for compliance. At paragraph 36 of this decision, the SIAC put it thus:

It is theoretically possible that a written private assurance could [be satisfactory], but unless it was written and unequivocal, it would be open to later misunderstanding and would, in any event, be publicly deniable. Verification of a confidential assurance would be problematic and could not provide the protection to an individual which public scrutiny, by the High Commission, by local media, by family and by organisations such as Human Rights Watch and Amnesty International, can provide. For these reasons, we agree with SIAC’s observations in Y and Othman and would not be willing to accept confidential assurances as a sufficient safeguard against prohibited ill-treatment in a state in which otherwise there was a real risk that it would occur.

This is yet another set-back for the UK in its attempt to find ways around the European Court of Human Right’s decision in Chahal, since reinforced as absolute in Saadi (case | comment) that Article 3 includes an absolute obligation not to expel anyone to a country where they might be subjected to treatment that violates it.

Article 3 provides:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Since the attacks of 11 September 2001 and the beginning of the ‘War on Terrorism’ the United Kingdom has been challenging the absoluteness of the Chahal principle. Indeed, acting as an intervenor in Saadi v Italy, the UK argued that the principle needed recalibration in light of the exceptionality of the threat posed by Al Qaeda and associated forces. They thought that the extent of the risk the prospective deportee would have to prove should be higher where s/he had been identified as a terror suspect. The Strasbourg Court, however, rejected that proposition finding instead that the protection from torture is absolute, therefore no matter how dangerous a person might be thought to be there could never be any grounds for reducing that protection by increasing the burden on the individual to prove level of risk. In Saadi the Court did not reject the capacity of assurances between governments to satisfy a state’s Article 3 obligation of non-refoulement (as it is known), but reinforced the principle that these assurances must be capable of protecting the individual in a practical sense.

Reacting to this decision on the UK Human Rights Blog this morning, Rosalind English posted an article in which she concludes as follows:

It is difficult to see how the authorities can make any effective progress in the suppression or even restriction of terrorist activities in this country if their hands are so firmly tied behind their backs by the manacles forged under Article 3. If the new government’s anti-terrorism strategy is to be picked out of the ruinous state in which it currently lies, it is to be hoped that judicial bodies like SIAC do not continue to reject out of hand destination countries’ reassurances as to the safety of deportees, or good evidence of such safety merely because it has to remain confidential. Continued deference to this broad interpretation of Article 3, ever requiring a country to put its own security at risk, makes a mockery of the Convention in general and the Article 2 in particular, which is after all designed to protect the right to life of people living within the signatory state’s own jurisdiction.

I don’t think I can agree with the tenor of this conclusion. Does forcing the State to at least be open about its assurances with the recipient state constitute tying its hands behind its back, especially when—at bottom—the acquisition of such assurances is an implicit acknowledgment that the individual is at risk in the recipient state? Otherwise, why would such an assurance be necessary? I don’t think that this constitutes a rejection “out of hand” of such assurances, but merely an insistence that these assurances would be adequate and that includes them being subject to some kind of monitoring or challenge. Such monitoring or challenge is not, in my view, possible where there is extreme secrecy around their contents. I suspect that Rosalind and I are approaching this from entirely different angles. For me it is not decisions such as this that “make[] a mockery of the Convention in general”; rather such decisions are in my view attempting very strongly to strike an appropriate balance (with due apologies for and acknowledgment of the difficulty associated with using the term) between a State’s legitimate security concerns and a State’s obligation to protect all those within its jurisdiction under the Convention. Of course, the decision may spur on those who want to see an end to the Human Rights Act, as Colin has written about below. This, in my view, is far more worrying than its impact on UK counter-terrorism.

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