UK - House of Lords, 18 February 2009, RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10

Country of Decision:
Country of Applicant:
Date of Decision:
18-02-2009
Citation:
[2009] UKHL 10
Court Name:
House of Lords
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Headnote: 

The House of Lords considered a number of issues arising out of the proposed deportation of three foreign nationals on the basis that each was a danger to the national security of the United Kingdom. The Court made three particularly relevant findings: (1) that Article 1F(c) of the 1951 Refugee Convention could be invoked to exclude an individual from the provisions of the Convention on the basis of acts committed after the applicant was recognised as a refugee; (2) Diplomatic assurances as to the treatment of an individual were relevant to assessing how an applicant would be treated upon return to their home State, though their assessment was a matter of fact, and; (3) relying on evidence obtained by torture in a criminal trial did not, as a matter of law, always amount to a flagrant denial of the right to a fair trial guaranteed by Article 6 ECHR.

Facts: 

The House of Lords considered the appeals of three foreign nationals who the government was seeking to deport to Algeria, in two cases, and to Jordan, in the final case. The grounds justifying the deportation were that each was a danger to the national security of the UK.  The applicants appealed to the Special Immigration Commission, and subsequently, after proceedings in the Court of Appeal, their cases came before the House of Lords. The applicants raised a number of issues relating to the fairness of the proceedings, the UK’s framework for the consideration of cases relating to national security, the interpretation of Article 1F of the Refugee Convention, the correct way to assess diplomatic assurances in respect the treatment of a deportee on return and the circumstances when a “flagrant denial” of Articles 5 and 6 of the ECHR would occur. This summary will consider the last 3 issues.

Decision & Reasoning: 

The House of Lords dismissed the applicant’s appeals on all points and allowed the Secretary of State’s cross-appeal in O’s cases.

On the relevant points, the House of Lords held:

(1)  Article 1F(c) of the 1951 Refugee Convention should not be interpreted to contain a temporal restriction that resulted in it only being capable of being applied where the applicant was “guilty of acts contrary to the purposes and principles of the United Nations” before admission to the UK. Such a temporal restriction was present in Article 1F(b) but not in relation to Articles 1F(a) or (c).

(2)  There was no principle of law that where a State sought to rely on diplomatic assurances about the treatment of the applicant in the country of return, that independent monitoring was required.   Where the State has a record of lack of respect for human rights good reasons would have to be shown to justify reliance on assurances.  However, the assessment as to whether the required risk of ill-treatment on return was a matter of fact that would be made taking into account any assurances given alongside other evidence.

(3)  The reliance upon evidence obtained under torture in criminal proceedings against the applicant in the country of return did not necessarily constitute a flagrant denial of the applicant’s right to a fair trial, so as to prevent deportation.

Outcome: 

Appeals dismissed.

Subsequent Proceedings : 

Othman (Abu Qatada) v UK (Application no. 8139/09)

Observations/Comments: 

The House of Lords decision in respect of whether a criminal trial where evidence obtained under torture was used was a flagrant denial of Article 6 ECHR was overturned by the ECtHR in Othman (Abu Qatada) v UK Application no. 8139/09). The Strasbourg Court affirmed a number of other elements of the House of Lords’ decision.

Case Law Cited: 

UK - Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279

UK - Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 4 All ER 15, [2007] 2 AC 167, [2007] 2 WLR 581

UK - House of Lords, Pepper v Hart [1992] UKHL 3, [1993] 1 All ER 42, [1993] AC 593, [1992] 3 WLR 1032

UK - House of Lords, R v Secretary of State for the Home Department, Ex parte Simms [1999] 3 All ER 400, [2000] 2 AC 115, [1999] 3 WLR 328

UK - R (on the application of Ullah) v Special Adjudicator, Do v Secretary of State for the Home Department [2004] UKHL 26, [2004] 3 All ER 785, [2004] 2 AC 323, [2004] 3 WLR 23

UK - A v Secretary of State for the Home Dept, X v Secretary of State for the Home Department [2004] UKHL 56, [2005] 3 All ER 169, [2005] 2 AC 68, [2005] 2 WLR 87

UK - A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2006] 1 All ER 575, [2006] 2 AC 221

UK - A v Secretary of State for the Home Dept, X v Secretary of State for the Home Department [2004] UKHL 56, [2005] 3 All ER 169, [2005] 2 AC 68, [2005] 2 WLR 87

UK - AS (Libya) v Secretary of State for the Home Department [2008] EWCA Civ 289, [2009] 1 LRC 704

UK - Ashbridge Investments v Minister of Housing and Local Government [1965] 3 All ER 371, [1965] 1 WLR 1320

UK - Immigration Appeals Tribunal, Devaseelan v Secretary of State for the Home Department [2003] Imm AR 1

UK - Court of Appeal, Associated Provincial Picture Houses v Wednesbury Corporation [1947] 1 KB 223; [1947] 2 All ER 680

UK - House of Lords, Edwards (Inspector of Taxes) v Bairstow [1955] 3 All ER 48, [1956] AC 14, [1955] 3 WLR 410

UK - EM (Lebanon) v Secretary of State for the Home Department [2006] EWCA Civ 1531, [2007] 3 FCR 1, [2008] UKHL 64, [2009] 1 All ER 559, [2008] 3 WLR 931

UK - Privy Council, Montgomery v HM Advocate, Coulter v HM Advocate [2001] 2 LRC 569, [2003] 1 AC 641, [2001] 2 WLR 779

UK - Othman (Jordan) v Secretary of State for the Home Department [2008] EWCA Civ 290, [2009] 1 LRC 738, [2008] 3 WLR 798

UK - House of Lords, R v Secretary of State for the Home Department, ex p Launder [1997] 3 All ER 961, [1997] 1 WLR 839

UK - R (on the application of Wellington) v Secretary of State for the Home Department [2008] UKHL 72, [2009] 2 All ER 436, [2009] 1 AC 335, [2009] 2 WLR 48

UK - Roberts v Parole Board [2005] UKHL 45, [2006] 1 All ER 39, [2005] 2 AC 738, [2005] 3 WLR 152

UK - Re S, Re W [2002] UKHL 10, [2002] 2 All ER 192, [2002] 2 AC 291, [2002] 2 WLR 720

UK - Secretary of State for the Home Department v AF (No 3) [2008] EWCA Civ 1148, [2009] 2 All ER 602, [2009] 2 WLR 423; [2009] UKHL 28, [2009] 3 All ER 643, [2009] 3 WLR 74

UK - Secretary of State for the Home Department v MB [2007] UKHL 46, [2008] 1 All ER 657, [2008] 1 AC 440, [2007] 3 WLR 681; affg [2006] EWCA Civ 1140, [2007] QB 415, [2006] 3 WLR 839

UK - House of Lords, R v Secretary of State for the Home Department Ex p Bugdaycay [1987] 1 All ER 940, [1987] AC 514, [1987] 2 WLR 606

UK - AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2008] 4 All ER 190, [2008] 1 AC 678, [2007] 3 WLR 832

Canada - Sing v Canada [2007] FC 361, Can FC.

ECtHR - Jalloh v Germany (2006) (Application no. 54810/00)

Canada - Suresh v Canada (Minister of Citizenship and Immigration) [2002] 4 LRC 640, Can SC

ECtHR - Aerts v Belgium (1998) 5 BHRC 382

ECtHR - Al-Nashif v Bulgaria (2003) (Application no. 50963/99)

ECtHR - Amrollahi v Denmark (2001) Application no. 56811/00)

ECtHR - Ergin v Turkey (2006) (Application no. 47533/99)

ECtHR - Gäfgen v Germany (2008) (Application no. 22978/05)

ECtHR - Harutyunyan v Armenia (2007) (Application no 36549/03)

ECtHR - Ismoilov v Russia (2008) (Application no. 2947/06)

United States - Rochin v California (1952) 342 US 165, US SC

ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99

ECtHR - Ocalan v Turkey (2005) (Application no. 46221/99)

ECtHR - Ozen v Turkey (2007) (Application no. 46286/99)

ECtHR - Ryabikin v Russia (2008) (Application no. 8320/04)

ECtHR - Stoichkov v Bulgaria (2005) (Application no.9808/02)

ECtHR - Tomasi v France (Application no. 12850/87)

ECtHR - Tomic v United Kingdom (Application no. 17837/03) (unreported) 2003

ECtHR - Werner v Poland (2001) (Applicaiton no. 26760/95)

ECtHR - Z & T v United Kingdom (Application no. 27034/05)

UK - Stradling v Morgan (1560) 1 Plowd 199, 75 ER 305