Last week not a good one for Theresa May: not just Abu Qatada

31 March 2013 by David Hart KC

J1 v  Secretary of State for the Home Department, 27 March 2013 – read judgment

A UKHRB editor, Angus McCullough QC, was a Special Advocate for J1 before the Court of Appeal, but not in SIAC below. He had nothing to do with the writing of this post

Hot on the Home Secretary’s loss of the Abu Qatada appeal, a reverse for her in another deportation case about someone whom the Court of Appeal described as “an important and significant member of a group of Islamist extremists in the UK,” and who was said to have links – direct or indirect – with men involved in the failed July 21 2005 bombing plot.

The general contours of the case will be familiar to Abu Qatada watchers, with claims under Articles 3 and 6 of the ECHR  amongst others – that if J1 was returned to his country of origin (here, Ethiopia), his human rights would not be respected. There are however a number of interesting features about this decision of the Court of Appeal; firstly, it reversed a decision of  the Special Immigration Appeals Commission against J1 on Article 3 (recall the heightened regard for SIAC as a specialist tribunal in the Abu Qatada appeal) , and secondly (in dismissing the Article 6 claim) it illustrates graphically some of the dilemmas facing Special Advocates when representing their clients in the imperfect world of “closed procedures” (a.k.a secret trials).

The key findings of SIAC about J1 were pithily summarised by the CA. If J1 is returned to Ethiopia, he will be of interest to the Ethiopian authorities. He will be at risk of detention and interrogation. It is possible that he will be prosecuted. Ethiopia has a poor human rights record. Absent the assurances given by Ethiopia to the UK Government, there would be a real risk that J1 will suffer torture or ill treatment contrary to ECHR article 3. The Ethiopian Government can be trusted to comply with those assurances, and those assurances are credible. One of the assurances concerned the setting up of an Ethiopian human rights monitoring committee. At the time of the hearing before SIAC,  that committee (referred to in the judgment as EHRC – not the one more familiar to UK readers) could not be trusted to report deliberate breaches by the Ethiopian Government. Once it has developed a proper capacity, however, the EHRC will report upon unauthorised breaches by junior officials.

This is the crucial bit of SIAC’s conclusions:

vi) There is work to be done before the EHRC will have developed proper capacity for monitoring. The Secretary of State will not deport the appellant before all that work has been done. The Secretary of State has undertaken to give removal directions five days before the date of deportation. That will allow J1 sufficient time to commence judicial review proceedings, if he contends that the necessary work in relation to preparation for monitoring has not yet been done.

But was that enough – or, as the Court of Appeal decided, did this amount to the Secretary of State removing an important element of the decision-making process from SIAC?

Claims touching on some of Ms May’s other bugbears were dismissed; whilst deportation of the appellant would result in separation from his wife and children (unless they relocated to Ethiopia), and would thus interfere with the exercise by J1 and his family of their rights under Article 8 ECHR, nevertheless that interference is justified under the provisions of Article 8.2. Similarly, deportation of the appellant from the UK would not infringe the rights of his wife and children (who are UK citizens) under article 21 of the Treaty on the Functioning of the European Union.

The successful Article 3 claim

Unlike SIAC, the Court of Appeal decided that the assurances given by the Ethiopian Government were not sufficient to prevent the appellant from being subjected to ill treatment contrary to Article 3. An important issue concerning verification and monitoring was left over for resolution by the Secretary of State, rather than SIAC.  

Now to a bit more legal context. The CA described the key principles of asylum claims as follows

i) In cases where the claimant seeks asylum or a right to remain in the UK on human rights grounds, the court or tribunal must determine that claim on the basis of current evidence.

ii) Where the claim is based upon dangers confronting the claimant in their home state, that determination involves an assessment of what will happen, or what there is a real risk of happening, in the future.

iii) In determining the claim the court or tribunal will take into account any undertaking or assurance given by the Secretary of State, in so far as it is relevant to the issues under consideration.

iv) Such an assurance or undertaking cannot cut down the legal protection to which the claimant is entitled.

v) If the route or method of return is unknown, the court or tribunal may in appropriate cases leave this matter for later decision by the Secretary of State. If the Secretary of State fails to address the matter properly, the claimant’s remedy is by way of making a fresh claim or bringing judicial review proceedings.

vi) The court or tribunal cannot, however, delegate to the Secretary of State the resolution of any material element of the legal claim which the claimant has brought before that court or tribunal for determination.

The CA’s conclusion was that the SoS had unlawfully taken upon it herself to resolve certain elements of the asylum claim, namely those concerned with the future capability of the EHRC to do its human rights monitoring job, and SIAC had erred in not so concluding. As per vi), that was not for the SoS, but for the judges  – so one sees immediately the possibility of more tanks-on-the-lawn rhetoric emerging from this decision.

The argument was more nuanced than this summary might suggest. Counsel for the SoS said that an effective system of verification was not mandatory for a return to be human rights compliant. And that the matters left over for later resolution by the SoS were of a kind that could properly be dealt with after SIAC’s decision, and this does not involve any delegation of decision-making by SIAC.

The CA did not agree. Whether or not the EHRC was competent to monitor the conduct of junior officials was one of the questions for determination by SIAC. SIAC could not delegate the decision on that issue to the SoS or the British Embassy in Addis Ababa. SIAC was obliged to determine that issue on the basis of the current evidence, and, as it stood, the EHRC is not at the moment competent to monitor the conduct of junior officials; it may or may not become so in the future. It was not enough that J1 could seek judicial review of any later decision finally effecting deportation, because that would be unsatisfactory for two reasons. First, it would not involve the same level of scrutiny as an appeal to SIAC. Secondly, there is no procedure for closed hearings or special advocates in the context of judicial review. Therefore J1 would be prejudiced if he were forced to litigate the issues concerning the EHRC and junior Ethiopian Officials in judicial review proceedings.

Hence, SIAC’s decision was quashed.

The unsuccessful Article 6 claim – the Special Advocates’ dilemma

J1 also relied on Article 6, saying that if he is prosecuted, there is a real risk that his trial will fall so far short of proper standards as to constitute a flagrant breach of this Article. This was dismissed in short order, on the grounds relied upon by SIAC.

But he had a second string to his bow. The SoS called a Mr Debebe before SIAC. He was a former Ethopian High Court Judge, and honorary adviser to the British Embassy there. He gave evidence in the open hearing about conditions in Ethiopia and the Ethiopian legal system. But the Special Advocates were not permitted to cross-examine him during the closed hearing. Nor were they permitted to put closed material to him. This was because Mr Debebe was giving evidence by video link, which is not a secure medium, and because Mr Debebe had also not obtained the necessary security clearance. The SoS suggested that the Special Advocates could submit written proposed questions in advance of the hearing so that they could be security checked and hence cleared for use in the open session. The Special Advocates refused. Instead, they prepared a list of “topics” on which they might wish to question Mr Debebe. SIAC concluded that most of those topics were either irrelevant or would be covered as part of the open evidence in any event. However, SIAC identified one topic upon which it invited the special advocates to formulate open questions which could then be submitted for security checking. However, the special advocates refused this invitation, saying that it was “not in J1’s interest” to do so. So the proceedings continued without the Special Advocates formulating any questions to be put to Mr Debebe.

J1 said  that this procedure was unfair in two respects. First, his Special Advocates ought to have been allowed to cross-examine Mr Debebe in the closed hearing. Secondly, in the alternative, Mr Debebe’s evidence ought to have been excluded.

The CA rejected both arguments.

Comment

The decision on Article 3 shows that the courts are astute to police the boundaries between what properly should be their or SIAC’s function and what is indeed a matter for the SoS’s decision. With the ramping up of the political “debate” on allowing “terrorists” to remain, it does not take much imagination to see why the SoS would prefer to see that decision taken by herself rather that the courts.

The Article 6 issue shows the nightmarish problems facing Special Advocates doing their best in the curious mixture of open and closed procedures which faces them every day. You wish to cross-examine a witness in the way that you think best serves your client’s interest – that is your job. The system or its practicalities (lack of security) prevents you from doing that. Your tribunal comes up with a form of protection (prepared questions) which would never be afforded to witnesses in an ordinary trial (any defendant would love to see questions in writing before he had to answer them), and does not approve of your counter-proposal. Do you go along with this way of trying to do justice, or, as appears here, say – enough is enough, this is so unfair that we refuse to play ball on this point?

Whilst the CA may be right to say that in this context closed procedures may be better than those afforded by judicial review, that still does not mean that the procedures evolved under such constraints enable justice ultimately to be served in a fair trial – a point made repeatedly by Special Advocates out of court, for which see their response to the extension of secret trial to civil cases here and their latest letter here.

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