IMMIGRATION – Deportation – Conducive to public good – Appeal from Special Immigration Appeals Commission – Whether restricted to error of law or irrationality – Whether deportees facing real risk of torture – Approach of commission in determining risk – Special Immigration Appeals Commission Act 1997, s 7 – Human Rights Act 1998, Sch 1, Pt I, arts 3, 6

RB (Algeria) v Secretary of State for the Home Department; U (Algeria) v Same; Othman v Same [2009] UKHL 10; [2009] WLR (D) 60

HL: Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead, Lord Brown of Eaton-under-Heywood and Lord Mance: 18 February 2009

Appeals from the Special Immigration Appeals Commission (“SIAC”) were restricted to matters of law or irrationality. SIAC was entitled to have regard to closed material and to assurances given by their governments in concluding that appellants would not, if deported, face a real risk of inhuman treatment contrary to art 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms or violation of the right to a fair trial under art 6.

The House of Lords so held in (i) dismissing appeals by RB and U, Algerians, from the decision of the Court of Appeal (Sir Anthony Clarke MR, Buxton and Smith LJJ) [2008] QB 533; [2008] 2 WLR 159 substantially to dismiss their appeals from SIAC but on another ground to remit their cases to it for reconsideration, and (ii) allowing an appeal by the Secretary of State for the Home Department and dismissing a cross-appeal by Mohammed Othman, a Jordanian, from the decision of the Court of Appeal (Sir Anthony Clarke MR, Buxton and Smith LJJ) [2008] 3 WLR 798 to allow his appeal from SIAC and quash the deportation order made by the Secretary of State.

LORD PHILLIPS OF WORTH MATRAVERS said that the Secretary of State wished to deport each appellant on the ground that he was a danger to national security. By s 7 of the Special Immigration Appeals Commission Act 1997 appeals from SIAC were restricted to questions of law. Its conclusions could only be attacked for error of law or irrationality. The wording of s 5(3)(6) of the Act was clear and contained no hint that rules providing for closed hearings could only be made in so far as necessary in the interests of national security and not in relation to the issue of safety on return. Their contention that assurances given by their governments as to their treatment on return did not protect them against inhuman treatment was not well founded. In concluding in Othman’s case that there were no reasonable grounds for believing that if he were deported the criminal trial which he would face would have defects of such significance as fundamentally to destroy its fairness, SIAC had not erred in law as the Court of Appeal had held.

LORD HOFFMANN, LORD HOPE OF CRAIGHEAD, LORD BROWN OF EATON-UNDER-HEYWOOD and LORD MANCE delivered concurring opinions.

Appearances: Rabinder Singh QC and Hugh Southey (Fisher Meredith) for RB; Richard Drabble QC, Hugh Southey and Raza Husain (Birnberg Peirce & Partners) for U; Ian MacDonald QC, Mark Henderson and Michelle Butler (Solicitor, Liberty) for Liberty, intervening in RB’s and U’s cases; Robin Tam QC and Robert Palmer (Treasury Solicitor) for the Secretary of State in RB’s and U’s cases; Martin Chamberlain (Special Advocates Support Office, Treasury Solicitors) as special advocate for RB and U; Michael Beloff QC, Robin Tam QC, Tim Eicke and Alan Payne (Treasury Solicitor) for the Secretary of State in Othman’s case; Edward Fitzgerald QC, Guy Goodwin-Gill, Raza Husain and Danny Friedman (Birnberg Peirce & Partners) for Othman; Angus McCullough and Martin Chamberlain (Special Advocates Support Office, Treasury Solicitors) as special advocates for Othman; Lord Pannick QC, Helen Mountfield and Tom Hickman (Herbert Smith LLP) for Justice and Human Rights Watch, intervening in all cases.

Reported by: Michael Gardner, barrister.