| IMMIGRATION — Deportation — Conducive to public good — Deportation orders made by Secretary of State on ground of national security — Appeal to Special Immigration Appeals Commission —Whether real risk of torture on return — Whether assurances by receiving state sufficient to ensure safety on return — Human Rights 1998, Sch 1, Pt I, art 3
AS and DD (Libya) v Secretary of State for the Home Department [2008] EWCA Civ 289; [2008] WLR (D) 104
CA: Sir Anthony Clarke MR, Buxton and Smith LJJ: 9 April 2008
In order to show strong grounds for believing that a foreign national if deported would face a real risk of being subjected to torture or inhuman or degrading treatment in breach of art 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms it was necessary to produce evidence, not mere speculation, to establish that risk. That was a stringent test, requiring rigorous examination of the evidence.
The Court of Appeal so held, dismissing the appeal of the Secretary of State from the decision of the Special Immigration Appeals Commission (“SIAC”) on 27 April 2007 to allow the appeals of the claimants, AS and DD, against deportation orders made against them on national security grounds, on the ground that there were substantial grounds for believing that they faced a real risk of treatment in violation of art 3 of the Convention if returned to Libya.
SIR ANTHONY CLARKE MR, giving the judgment of the court, said that the claimants were each served with a deportation order on the ground that his presence in the United Kingdom was not conducive to the public good because he was a danger to national security. SIAC allowed their appeals on the ground that there were substantial grounds for believing that they faced a real risk of treatment contrary to art 3 of the Convention if they were returned to Libya. The appeal was concerned solely with the issue of safety on return. The Secretary of State’s case depended entirely on a memorandum of understanding between Libya and the United Kingdom. It provided assurances that anyone deported from the United Kingdom would be properly treated. It was accepted by the Secretary of State that, in the absence of the memorandum, there would be substantial grounds for believing that there was a real risk of torture on return, whereas the claimants accepted that if Libya complied with the memorandum there would be no such risk. The sole issue on the facts before SIAC was whether the memorandum reduced the risk to an acceptable level. The proper approach for the Court of Appeal was to consider SIAC’s judgment as a whole and only to hold that it erred in law if it was quite clear that it had done so: see AH (Sudan) v Secretary of State for the Home Department [2007] 3 WLR 832. It was the duty of SIAC to consider whether there were substantial grounds for believing that the claimants would face a real risk of torture on return to Libya and that involved consideration of whether Libya would or might break the assurances in the memorandum: see Saadi v Italy (Application No 37201/06) (unreported) 28 February 2008. That was a question of fact which it was SIAC’s duty to resolve. The art 3 right was absolute in nature. Either the evidence revealed that there was a substantial risk if the person was sent back or it did not. Any threat posed by the deportee did not affect the risk faced by the deportee on return. Those were two entirely different questions: see Saadi v Italy. The real risk test was more than a mere possibility but something less than a balance of probabilities or more likely than not. It was a stringent test which it was not easy to satisfy: see R (Ullah) v Special Adjudicator [2004] 2 AC 323. There had to be strong or substantial grounds, based on evidence, for believing that there was a real risk of torture contrary to art 3. SIAC had applied the correct test. Its findings of fact were capable of supporting the conclusion that the correct threshold had been passed.
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Appearances: Philip Sales QC, Robin Tam QC, Tim Eicke and Andrew O’Connor (Treasury Solicitor) for the Secretary of State; Edward Fitzgerald QC, Raza Husain, Danny Friedman and Hugh Southey (Birnberg Peirce and Partners) for the claimants; Neil Garnham QC and Judith Farbey (Special Advocates Support Office, Treasury Solicitor) as special advocates for the claimant, AS; Edward Fitzgerald QC, Raza Husain, Danny Friedman and Hugh Southey (TRP Solicitors) for the claimant DD. Andrew Nicol QC and Judith Farbey (Special Advocates Support Office, Treasury Solicitor) as special advocates for the claimant, DD.
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