Abu Qatada shown
on
Al Arabiya TV in
December 2005
UK
deportation policy questioned by court
9 April 2008
The UK government's policy of
"deportation with assurances" was called into question on Wednesday by
decisions of the Court of Appeal of England and Wales in two key cases. The
cases are that of Abu Qatada, a Jordanian national, and that of two Libyan
nationals, referred to for the purposes of legal proceedings in the UK as "DD"
and "AS".
The UK has been seeking for some
years to deport a number of individuals whom it alleges pose a threat to
national security. It has acknowledged that these individuals could not
ordinarily be deported, because of the real risk of grave human rights
violations that they would face in the countries to which they are to be
returned.
The UK government has therefore
sought, in each of these cases, so-called ‘diplomatic assurances’ from the
countries to which these individuals are to be returned that the individual
will be treated in accordance with international human rights standards. These
promises are unenforceable in any court of law.
Amnesty International has long argued
that the UK government's policy of "deportation with assurances" undermines
the absolute prohibition of torture. In particular, the policy is not
compatible with the obligation, under international law, not to send
individuals to countries where they face a real risk of grave human rights
violations, including torture or other ill-treatment.
In both of today's cases, although on
different grounds, the Court of Appeal ruled that the UK could not lawfully
proceed with the deportations.
In the cases of "DD" and "AS", the
Court of Appeal upheld the decision of the Special Immigration Appeals
Commission (SIAC), the court of first instance in these cases, that the
assurances obtained from Libya by the UK in the form of a "Memorandum of
Understanding" were not sufficient to protect them from a real risk of torture
or other ill-treatment if they were to be returned to Libya and that they
could not, therefore, be deported.
The Court of Appeal ruled, in Abu
Qatada’s case, that the SIAC was entitled to find that so-called diplomatic
assurances can sometimes be relied on to protect people against a real risk of
very serious violations of their human rights, including the risk of being
tortured and the risk of being subjected to a flagrantly unfair trial.
Amnesty International has voiced
concern about this part of the decision. The organization argues that the
unfair procedures the SIAC follows, which include the use of secret material
in secret sessions of the court, makes it extremely hard to mount an effective
challenge in the SIAC to the use of these assurances.
"If the Court of Appeal is unwilling
to question the SIAC’s findings on the reliability of these assurances, there
is real doubt over whether there is any genuine route open to the individuals
who face deportation on the strength of such assurances to challenge their
use," the organization said.
The Court of Appeal recognized,
however, that the trial that Abu Qatada would face on his return to Jordan
would amount to a flagrant violation of the right to a fair trial, and that
the assurances given in his case offered no protection against that. The trial
would be flagrantly unfair because it would very probably allow evidence that
had been obtained by torture to be used against him. It therefore ruled that
his deportation could not go ahead.
In the light of today’s decisions,
Amnesty International has called on the UK government to abandon its dangerous
and discredited policy of relying on unenforceable promises to get around its
obligations not to send people to countries where they will face a real risk
of grave human rights violations.
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