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

19 May 2010 by

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

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: