Wednesday, 9 April 2008

(UK) Court of Appeal applies Saadi v Italy and Prevents Deportation to Libya

Today the Court of Appeal (Civil Division) released its judgment in AS & DD v Secretary of State for the Home Department [2008] EWCA Civ 289, which concerned the lawfulness of the deportation of the applicant to Libya, pursuant to a Memorandum of Understanding with the proposed receiving state.

The applicant was considered to pose risks to national security in the United Kingdom. He claimed that his right to be free from torture, inhuman and degrading treatment and punishment under both the ECHR and the Human Rights Act 1998 would be violated by the deportation as he faced a substantial risk of such treatment on return to Libya, and that the memorandum of understanding provided was not sufficient to discharge the United Kingdom’s positive obligations under Article 3, ECHR (on which see, esp., Soering and Chahal).

Drawing very heavily on the European Court of Human Right’s recent decision in Saadi v Italy (previously discussed on the CCJHR blog here), the Court of Appeal held that the test to be applied when considering whether deportation would constitute a human rights violation was as laid down in Saadi as follows:


Furthermore, the Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill-treatment ... in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof (see paragraphs 128 and 132 above) before indicating an interim measure under Rule 39 or finding that the enforcement of removal from the territory would be contrary to Article 3 of the Convention. As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion. (paragraph 142)


The Secretary of State for the Home Department conceded that this test would have been satisfied beyond doubt in this case were it not for the fact that a Memorandum of Understanding (i.e. diplomatic assurances) had been concluded between the UK and Libya. This memorandum, the respondent claimed, was sufficient to discharge the UK’s duty of non-refoulement under Article 3 ECHR.

In this respect the Court of Appeal held that the sufficiency of any memorandum must be decided on a case-by-case basis (paragraph 75). Although the Court did not, perhaps, articulate the principles of assessing the sufficiency of particular memoranda of understanding as clearly as it might have done, it did clearly state that in assessing whether Article 3 is satisfied it is important to consider the reality on the ground in the receiving country and the extent to which – taking into account the unpredictability of the future – it is likely that treatment violating Article 3 might take place notwithstanding the memorandum of understanding.

Whether this decision will be appealed to the House of Lords remains to be seen, but as the judgment is substantively based on Saadi it seems unlikely that the Law Lords would reverse. In essence, then, the judgment outlines three principles:


  1. The protections of Article 3, ECHR are absolute and remain absolute notwithstanding the alleged misbehaviour/terrorist status/national security risk posed by the individual(s) concerned;
  2. In assessing whether deportation would constitute a violation of Article 3 a Court must consider whether there is “a real risk of ill-treatment”, taking into account all of the evidence before it and the necessarily speculative nature of the exercise;
  3. A Memorandum of Understanding/diplomatic assurance can, in principle, be sufficient to ensure compliance with Article 3, but the mere existence of such a memorandum is not sufficient in and of itself. Rather, the court must be satisfied that the situation in the proposed receiving state is such that the memorandum will be effective in protecting the individual from behaviour that violates Article 3.

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Tuesday, 4 March 2008

Saadi v Italy - The ECtHR Reaffirms Article 3's Absolute Protection

Article 3 of the ECHR, which prohibits torture, inhuman or degrading treatment or punishment, imposes positive obligations on states, including the obligation of non-refoulement (i.e. the obligation not to return and individual to a country where that individual is likely to be subjected to treatment that violates Article 3). This obligation has been clearly outlined and enforced by the European Court of Human Rights since Soering v United Kingdom and Chahal v United Kingdom. Since the commencement of the ‘War against Terrorism’, however, some governments have argued that they ought to be entitled to deport suspected terrorists, even to countries where they may be at risk of Article 3 treatment, provided they have acquired diplomatic assurances that the individual will be protected from such treatment.

These claims have been extremely controversial, particularly since diplomatic assurances are not legally binding; there is no recourse for the individual against the state that has given the assurance in the event of its breach (unless some kind of legitimate expectation claim could be successfully constructed, which seems somewhat unlikely) – as diplomatic tools they are enforced (or not) through diplomatic channels. However, diplomatic assurances are not always insufficient to meet the receiving state’s obligations: if the assurance covers the prohibited activities, relates to a situation over which the assuring state has control, and comes from a reliable source then arguably the receiving state can rely on it. (For more on this see, e.g., this piece originally published in the Irish Law Times). One of the primary questions to arise since 2001, however, is whether the suspected involvement of the individual concerned in terrorist activity in any way reduces a state’s positive obligations under Article 3.

This question was directly addressed by the European Court of Human Rights in last week’s judgment in Saadi v Italy (judgment here). The case concerned a Tunisian citizen whom Italy wished to return to Tunisia but who claimed that he was likely to be subjected to behaviour violating Article 3 on his return and therefore that Italy had an obligation of non-refoulement towards him. The Italian government had received an assurance from Tunisia that Tunisian law guaranteed a fair trial and prisoners rights and that Saadi would be treated in strict conformity with these national laws. Pursuant to that assurance Italy claimed compliance with its Article 3 obligations; Saadi claimed that the assurance did not satisfy Article 3.

Although the Court accepted the grave difficulties that contemporary terrorism poses to states, it rejected the argument offered by the United Kingdom, which was a third party intervener to the proceeding, that in relation to suspected terrorists the court ought to weigh the community interest against the risk of violatory conduct perpetrated by a third party state (in this case, Tunisia). According to the Court, at paragraph 138:


Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no derogation from that rule (see the case-law cited in paragraph 130 above). It must therefore reaffirm the principle stated in the Chahal judgment (cited above, § 81) that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State is engaged under Article 3, even where such treatment is inflicted by another State. In that connection, the conduct of the person concerned, however undesirable or dangerous, cannot be taken into account.

And at paragraph 140:


With regard to the second branch of the United Kingdom Government's arguments, to the effect that where an applicant presents a threat to national security, stronger evidence must be adduced to prove that there is a risk of ill-treatment (see paragraph 122 above), the Court observes that such an approach is not compatible with the absolute nature of the protection afforded by Article 3 either. It amounts to asserting that, in the absence of evidence meeting a higher standard, protection of national security justifies accepting more readily a risk of ill-treatment for the individual. The Court therefore sees no reason to modify the relevant standard of proof, as suggested by the third-party intervener, by requiring in cases like the present that it be proved that subjection to ill-treatment is “more likely than not”. On the contrary, it reaffirms that for a planned forcible expulsion to be in breach of the Convention it is necessary – and sufficient – for substantial grounds to have been sown for believing that there is a real risk that the person concerned will be subjected i the receiving country to treatment prohibited by Article 3.


The Court accepted that diplomatic assurances might be sufficient in some cases to satisfy a state’s Article 3 obligations, but this was not the case here given the strong evidence of widespread torture and ill-treatment in Tunisian detention facilities. Thus Saadi could not be deported; any deportation would violate Article 3.

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