| IMMIGRATION — Deportation — Conducive to public good — Deportation order made by Secretary of State on ground of national security — Appeal to Special Immigration Appeals Commission — Whether risk of unfair trial on return in breach of Convention right — Application of test of flagrant denial of justice to risk of torture — Human Rights 1998, Sch 1, Pt I, art 6
Othman (Jordan) v Secretary of State for the Home Department [2008] EWCA Civ 290; [2008] WLR (D) 103
CA: Sir Anthony Clarke MR, Buxton and Smith LJJ: 9 April 2008
The deportation of a foreign national on the ground that his presence was not conducive to the public good because he was a danger to the national security of the United Kingdom would breach that person’s right to a fair trial under art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms if in the receiving state he was at real risk of being tried on evidence obtained by torture.
The Court of Appeal so held, allowing the appeal of the claimant, Omar Othman aka Abu Qatada, against the decision of the Special Immigration Appeals Commission (“SIAC”) on 26 February 2007 that his deportation ordered by the Secretary of State would not contravene the United Kingdom’s obligations under the Convention.
BUXTON LJ, giving the judgment of the court, said that the Secretary of State wished to deport the claimant to his native Jordan on the ground, unchallenged, that he was a danger to national security. Convention jurisprudence trod warily in cases where the complaint against a state party to the Convention was that if the state used its powers in domestic law to expel a party to a third country, that party would in that third country suffer conduct that if committed by a member state would be in breach of the Convention. That diffidence sprung from the need to respect the rights of signatory states to control their own borders and the entry and residence rights of aliens. However, in the case of articles of the Convention that enshrined absolute rights, such as art 2 (in particular in relation to the prohibition of capital punishment) and art 3, that principle had to yield to the imperative need to protect individuals from such treatment. Accordingly the signatory state could not expel an alien to a country where he would face a risk of inhuman or degrading treatment. While there was no case in which the European Court of Human Rights had recognised a breach of the Convention where extradition or expulsion was resisted on the basis of conduct inconsistent with art 6 in the receiving state, the court had recognised that such a complaint was maintainable. In R (Ullah) v Special Adjudicator [2004] 2 AC 323 the House of Lords addressed the problem of assessment of Convention standards in third party states and recognised that broadly the same principles applied to all non-art 3 articles of the Convention. In art 6 cases there was a need to establish a flagrant denial of a fair trial. It was argued for the claimant that trial before a court lacking impartiality in the Convention sense was enough to remove the possibility of expulsion. That argument was based on domestic cases addressing the obligations of the signatory state in relation to the legal system for which it was responsible. The present problem was whether there would be a complete denial or nullification of the right to a fair trial in the receiving state. It was open to SIAC to analyse carefully the actual position and procedure of the court and to conclude that although it was not in domestic terms independent and impartial, trial before it would not amount to a complete denial of justice. It was not open to SIAC to conclude that the claimant’s deportation would not breach his Convention rights on the ground that he was under a real risk of being convicted on evidence obtained by torture. The use of evidence obtained by torture was prohibited in Convention law not just because that would make the trial unfair but more particularly because of the connection of the issue with art 3, a fundamental, unconditional and non-derogable prohibition at the centre of the Convention protections. That view, that the use of evidence obtained by torture was prohibited not primarily because of its likely unreliability but because the state had to stand firm against the conduct that had produced the evidence, was universally recognised. SIAC was wrong not to recognise that crucial difference between breaches of art 6 based on that ground and breaches of art 6 based simply on defects in the trial process or in the composition of the court. Rather it treated the possible use of evidence obtained by torture pari passu with complaints about the independence of the court. That caused it not to recognise the high degree of assurance that was required in relation to proceedings in a foreign state before a person could lawfully be deported to face trial that could involve evidence obtained by torture. SIAC had misdirected itself in law. Its conclusion could not stand.
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Appearances: Edward Fitzgerald QC, Raza Husain and Danny Friedman (Birnberg Peirce and Partners) for the claimant; Philip Sales QC, Robin Tam QC, Tim Eicke and Andrew O’Connor (Treasury Solicitor) for the Secretary of State; Angus McCullough and Martin Chamberlain (Special Advocates Support Office, Treasury Solicitor) as special advocates for the claimant.
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