Decisions

Court of Appeal of England and Wales January 22, 2025 [2025] EWCA Civ 33

Disposition Appeal of the Secretary of State allowed: “For the reasons explained at [45] to [71] above, I would allow the appeal” (Males LJ, paragraph 88). Phillips LJ: “I agree.” Elisabeth Laing LJ: “I also agree, with one minor qualification.” The decision of the Special Immigration Appeals Commission that the revocation of his refugee status and the refusal of his further claim were unlawful was reversed. The Supreme Court refused permission to appeal on 5 June 2025: “The application does not raise an arguable point of law.”

The Special Immigration Appeals Commission had held the revocation unlawful because the Home Secretary had not balanced the danger D8 posed “against the cost, practicability and feasibility of any measures that might be taken to ameliorate the risk” and had not shown that revocation “was a measure of last resort” (paragraph 1). The Court of Appeal disagreed: “Once she has concluded that a refugee is a danger to national security, she is entitled to revoke his refugee status.” … “I accept that submission and would therefore allow the appeal” (paragraphs 2 and 3). Return to Iran was not in issue: “as SIAC found that D8 would face at least a real risk of torture if returned, contrary to Article 3 ECHR, and even the risk of a violation of his right to life under Article 2 ECHR, there is now no question of him being returned. Thus, whatever the outcome of this appeal, the Secretary of State accepts that some form of leave to remain will have to be granted to D8” (paragraph 12). The court put the principle in one sentence: “Put another way, we do not send people back to be killed or tortured even if they are a danger to the national security of United Kingdom” (paragraph 26). It drew the line between the two: “If it were not for the fact that to return him to Iran would put his life at risk and would expose him to a real risk of torture or other inhuman or degrading treatment, she would be entitled to refoule him.” … “Although refoulement is not possible, the Secretary of State was entitled to take the lesser steps of revoking D8’s refugee status” (paragraph 71).

Refugee status National security Article 3 ECHR Non-refoulement Refugee Convention Article 33(2)

Caution The label records that D8 lost this appeal. It does not mean that he may be sent to Iran: the Commission found a real risk of torture there, the Home Secretary did not challenge the finding, and the court recorded that there is “no question of him being returned”. What he lost was refugee status. The Commission had observed that “the distinction between full refugee status and the lesser form of discretionary leave which will have to be granted to him is significant”, a point the court was not asked to consider (paragraph 89). The court decided the appeal on the Commission’s open judgment and did not see the closed judgment or the closed material (paragraph 4).

European Court of Human Rights January 17, 2012 ECHR 2012 (extracts)

Disposition Unanimously: the application declared admissible; “the applicant’s deportation to Jordan would not be in violation of Article 3 of the Convention”; no violation of Article 3 taken in conjunction with Article 13; deportation to Jordan would not be in violation of Article 5; and “the applicant’s deportation to Jordan would be in violation of Article 6 of the Convention on account of the real risk of the admission at the applicant’s retrial of evidence obtained by torture of third persons”. The judgment became final on 9 May 2012, when a panel of the Grand Chamber refused his request for referral.

Omar Othman, known as Abu Qatada, was recognised as a refugee in 1994 on the basis that he had been detained and tortured by the Jordanian authorities (paragraph 7). He was convicted in his absence in Jordan in April 1999, and again after a trial in the autumn of 2000, when he was sentenced to fifteen years’ imprisonment with hard labour (paragraphs 9, 18 and 19). On 10 August 2005 the United Kingdom and Jordan signed a memorandum of understanding setting out assurances for people returned between them, and the next day he was served with notice of intention to deport (paragraphs 8 and 23). The Court restated the rule: “Article 3 is absolute and it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion” (paragraph 185). On assurances it held that “assurances are not in themselves sufficient to ensure adequate protection against the risk of ill‑treatment. There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment” (paragraph 187), and that “it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances” (paragraph 188). It concluded that “the applicant’s return to Jordan would not expose him to a real risk of ill-treatment” (paragraph 205). It held against the deportation because of the risk that evidence obtained by torturing other people would be used at his retrial: “the admission of torture evidence is manifestly contrary, not just to the provisions of Article 6, but to the most basic international standards of a fair trial. It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome. It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial” (paragraph 267). It found “a real risk that the applicant’s retrial would amount to a flagrant denial of justice” (paragraph 282). The Court’s press release called it “the first time that the Court has found that an expulsion would be in violation of Article 6”.

Article 3 ECHR Diplomatic assurances National security Evidence obtained by torture Fair trial Flagrant denial of justice

Caution The Court accepted that the assurances Jordan gave answered the risk of torture; the deportation was barred only by the risk that evidence obtained by torturing other people would be admitted at his retrial. The judgment does not record what happened after it became final, and the Coalition has not read a source on it. The Supreme Court of the United Kingdom applied the Othman approach to assurances in R (AAA (Syria) and others) in 2023 (see that entry) and reached the opposite result on Rwanda.

European Court of Human Rights November 15, 1996 Reports 1996-V

Disposition By twelve votes to seven, that “in the event of the Secretary of State's decision to deport the first applicant to India being implemented, there would be a violation of Article 3 of the Convention”. By thirteen votes to six, no violation of Article 5 § 1. Unanimously, a violation of Article 5 § 4, and a violation of Article 13 in conjunction with Article 3. By seventeen votes to two, not necessary to consider the complaint under Article 8. The findings of violation held to be sufficient just satisfaction for non-pecuniary damage; £45,000 awarded for costs and expenses, less 21,141 French francs; the remainder of the claim dismissed.

On 14 August 1990 the Home Secretary decided that Karamjit Singh Chahal should be deported to India because his presence in the United Kingdom was “unconducive to the public good for reasons of national security and other reasons of a political nature, namely the international fight against terrorism” (paragraph 25). He said that on a visit to Punjab in 1984 the police had held him for twenty-one days, beaten him to unconsciousness, electrocuted him and subjected him to a mock execution (paragraph 18). The Home Secretary obtained an assurance from the government of India, repeated in December 1995, that he “would enjoy the same legal protection as any other Indian citizen, and that he would have no reason to expect to suffer mistreatment of any kind at the hands of the Indian authorities” (paragraph 37). The Grand Chamber held that the risk could not be weighed against the danger he was said to pose: “The prohibition provided by Article 3 (art. 3) against ill-treatment is equally absolute in expulsion cases.” … “In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 (art. 3) is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees” (paragraph 80). On the assurance: “Although the Court does not doubt the good faith of the Indian Government in providing the assurances mentioned above (paragraph 92), it would appear that, despite the efforts of that Government, the NHRC and the Indian courts to bring about reform, the violation of human rights by certain members of the security forces in Punjab and elsewhere in India is a recalcitrant and enduring problem (see paragraph 104 above). Against this background, the Court is not persuaded that the above assurances would provide Mr Chahal with an adequate guarantee of safety” (paragraph 105). It concluded that “the order for his deportation to India would, if executed, give rise to a violation of Article 3 (art. 3)” (paragraph 107). The Court also found that “neither the advisory panel nor the courts could review the decision of the Home Secretary to deport Mr Chahal to India with reference solely to the question of risk, leaving aside national security considerations” (paragraph 153), so that he had no effective remedy, and that neither habeas corpus, judicial review nor the advisory panel met the requirements of Article 5 § 4 for the review of his detention (paragraph 132). The detention itself, with a view to deportation, did not breach Article 5 § 1.

Article 3 ECHR Non-refoulement National security Diplomatic assurances Detention pending removal Effective remedy Judicial review

Caution The Article 3 finding was made by twelve votes to seven. The judgment decides whether the deportation order could be carried out on the evidence before the Court in 1996, when Mr Chahal was still detained; it does not record what happened to him afterwards, and the Coalition has not read a source that does. The Court applied the same rule, that the risk of ill-treatment cannot be weighed against the reasons for removal, in Othman (Abu Qatada) v. the United Kingdom in 2012 (see that entry), where it accepted the assurances Jordan gave.