Terror suspects cannot be deported to Pakistan in case of ill-treatment

Abid Naseer, Ahmad Faraz Khan, Shoaib Khan, Abdul Khan and Tariq Ur Rehman (Appellants) v Secretary of State for the Home Department (Respondent), Special Immigration Appeals Commission, 18 May 2010 – Read judgment

Two men suspected of attempting to mount a mass casualty attack can stay in the UK because they risked ill treatment if they were to be sent back to Pakistan. Rosalind English examines whether the extra territoriality reach of Article 3 makes a mockery of the core protections provided by European Convention on Human Rights.

Risk of torture

The alleged operatives appealed against deportation orders/refusals of re-entry on the grounds that they risked ill treatment contrary to Article 3 of the European Convention on Human Rights at the hands of the Pakistani security services. Appeals against deportation were upheld because the reassurances as to the safety of their return was based on evidence that could not be disclosed in open court.

The Secretary of State’s case was that each of the appellants was a party to a plot to carry out a mass-casualty attack in North West England between 15 and 20 April 2009. The open case was founded upon MI5′s interpretation of various emails between a Pakistani registered email account and an email account used by Naseer in the preceding months.

In the emails, the appellants discuss four named women, and their plans for a wedding, and a meeting with “mates”. In a closed hearing it was accepted that there were grounds for M15’s suspicions that the names were codes for ingredients for a bomb, and their availability. The security service’s assessment was that the user of the Pakistani account was an Al Qa’eda associate, and that in one of the emails Naseer declared his and other operatives’ intention to carry out an imminent attack. No explosives had been found and that there was no forensic evidence to link the appellants to any explosives; however the SIAC was satisfied that MI5′s assessment was right, but it had reached this conclusion, in part, on the basis of secret evidence.

SIAC found that Wahab was a committed Islamist extremist and that he and Rehman were knowing participants in the first appellant’s (Naseer’s) plans. Therefore for reasons of nationality permission to re-enter was refused. But in relation to Naseer and Faraz, a different issue arose: safety on return. SIAC observed:

…the issue gives rise to two basic questions: does what is known about the conduct of state agencies in the country to which it is proposed to deport the appellants give rise to substantial grounds for believing that there would be a real risk of ill-treatment sufficient to infringe their rights under Article 3 if it occurred in a Convention country at the hands of those agencies?; if so, are there arrangements, assurances or particular circumstances which provide a sufficient guarantee that the individual appellant would be protected against the risk of such treatment? (This is a slightly lengthier formulation of the test applied in Saadi v Italy (2009) 49 EHRR 30 paragraphs 146 and 148).

The Commission was not satisfied that such assurances were in place, and did not accept the Secretary of State’s arguments that evidence of safe return as disclosed in the secret proceedings was sufficient. Relying on the observations on this issue by President Ouseley J presiding over a SIAC panel in the cases of Y and Othman, the Commission allowed Naseer’s and Faraz’s appeals against deportation.

Case Comment

Fourteen years on, Chahal continues to haunt immigration and deportation policy like the ghost of Banquo. Since the terrorist attacks of 11 September 2001 the government and courts have conducting the most elaborate of contortionist exercises to balance the prevention of acts of terrorism with the obligation under Article 3 of the Convention not to remove or deport any person to a country where he could face a real risk of ill-treatment. First there was an attempt at indefinite detention for terrorist suspects. That was ruled illegal as being discriminatory as applying only non-nationals. That particular detention scheme under the 2001 Act was replaced by a system of control orders under the Prevention of Terrorism Act 2005 and the establishment of the SIAC. However, the problem remains: how to reconcile the need for public security whilst observing the requirements of Article 3?

Usually the problem is articulated the other way round. The most frequent objection to SIAC cases is that some material cannot be disclosed to the individual or individuals concerned without prejudicing the public interest, for example material that reveals an agent’s identity. The suspect therefore has no opportunity to rebut the evidence against him and the detention or deportation follows on the basis of secret evidence. But in this case the tables are turned somewhat; it is the secrecy of the reassurance that the individuals will not be exposed to treatment contrary to Article 3 that is in issue.

In this case there was apparently evidence in the closed session that torture and ill-treatment at the hands of the Pakistani Inter Services Intelligence Agency (ISI) was not an inevitable consequence of the deportation of the appellants. In fact other members of the appellants’ group had come to no harm when they were returned to Pakistan. The problem was that the circumstances upon which the Secretary of State relied, to support his submission that there was no real risk, were circumstances which could only be considered in closed session and set out in closed judgment. The Commission felt that allowing reliance on closed assurances meant that they could be deniable, or open to later misunderstanding. Verification of a confidential document might be problematic.

Nor could there be any reliance placed on Article 1 of the Convention to ensure the safety of potential deportees; the Grand Chamber in Bankovic v Belgium (2007) 44 EHRR SE5 established that the scope of Article 1 is limited, except in very particular circumstances where there is extra-territorial military control, to the jurisdiction of national states. Therefore the UK has no jurisdiction over Pakistani citizens in Pakistan in such a way that it could “secure” to them the right not to be subjected to ill-treatment of a kind which, if it occurred within a Convention state, would breach that state’s obligations under Article 3.

It is difficult to see how the authorities can make any effective progress in the suppression or even restriction of terrorist activities in this country if their hands are so firmly tied behind their backs by the manacles forged under Article 3. If the new government’s anti-terrorism strategy is to be picked out of the ruinous state in which it currently lies, it is to be hoped that judicial bodies like SIAC do not continue to reject out of hand destination countries’ reassurances as to the safety of deportees, or good evidence of such safety merely because it has to remain confidential. Continued deference to this broad interpretation of Article 3, ever requiring a country to put its own security at risk, makes a mockery of the Convention in general and the Article 2 in particular, which is after all designed to protect the right to life of people living within the signatory state’s own jurisdiction.

Read more