BB, PP, U and others v Secretary of State for the Home Department  EWCA Civ 9 (23 January 2015) – read judgment
This was an appeal by Algerian nationals who had been found by the Special Immigration and Appeals Commission (SIAC) to constitute a threat to UK national security, against deportation to Algeria.
The appellants had resisted attempts by various home secretaries to deport them via protracted litigation over several years. Despite several findings by the SIAC that their human rights would not be infringed in Algeria, doubts remained, particularly with regard to the period of up to twelve days of initial detention in Algeria, known as “garde a vue” detention, in a barracks run by the Algerian security services (DRS). The purpose of such detention was to interrogate prisoners to obtain evidence for future proceedings. SIAC had wholly accepted the evidence of an innocent British citizen (AB) detained there in a case of mistaken identity as “punitive in the extreme”, but determined that his treatment showed a lack of care over the detainee’s welfare rather than a breach of his human rights. It had conceded that the treatment of the appellants might well be no better, not least because DRS officers considered such treatment to be consistent with respect for human dignity.
The appellants submitted that, in the light of this, SIAC’s conclusion that their treatment would not violate Article 3 of the Convention was legally unsustainable; that SIAC had erred in law in its findings that the Algerian government’s assurances were capable of independent verification; and that the SIAC had also erred in law in maintaining, without any open evidence in support, that the DRS had been present during discussions about those assurances and had subscribed to them.
The Court of Appeal upheld the appeals.
Reasoning behind the judgment
SIAC had referred to a number of authorities in support of its findings, especially Peers v Greece (2001) 33 EHRR 51, Babar Ahmad v United Kingdom (2013) 56 EHRR 1 and Batayav v SSHD  EWCA Civ 1489. From Peers, it took the propositions that the minimum level of severity “depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim” (paragraph 67); and that, in considering whether treatment is “degrading”, the court should “have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3” (paragraph 68). It then referred to Babar Ahmad for the observation that
the Convention does not purport to be a means of requiring the contracting states to impose Convention standards on other states …..This being so, treatment which might violate Article 3 because of an act or omission of a contracting state might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case” (paragraph 176).
Finally, the SIAC had relied on Batayav for the proposition that unlawful conditions of detention in a receiving state can only be established by “a consistent pattern of gross and systematic violation of rights under Article 3” (paragraph 7).
Whilst bearing in mind the difficulty of establishing a violation prospectively, it was necessary to pay special attention to an “unusual feature” of the present case, namely the acceptance of AB’s evidence and the assumption that the appellants are at significant risk of suffering similar conditions. In general conditions in Algerian prisons withstood international scrutiny, but those in the barracks suggested they were a deliberate attempt to diminish the resistance and morale of detainees so they were more likely to confess, whether truthfully or not. The “deplorable conditions” in which AB was detained (SIAC judgment, paragraph 31) were and are not the result of scarcity of resources in an impoverished country. Conditions in Antar barracks are, or at least seem to be, unique and it is not seriously disputed that, although detention there is of limited (albeit not insignificant) duration, they have a purpose, namely the building of a case against the detainee before he is transferred to less inhospitable conditions and greater protections. This raises the question, not fully confronted by SIAC, of whether the regime of Antar barracks was part of a deliberate attempt to diminish the resistance and morale of detainees so as to render them more likely to confess, whether truthfully or not. This was a potentially important point in the context of differential standards. The Secretary of State was unable to point to any case in which an intentional use of deplorable conditions for such a purpose had been upheld, whether on the basis of Convention standards being inapplicable in a “foreign” case or otherwise.
In Sir Maurice Kay’s judgment, by emphasising the “differential” approach in the “health” cases and the “inconsistent pattern of gross and systematic violation” words of Batayav, SIAC had failed to apply “the full, nuanced and holistic approach” of Babar Ahmad to the unusual circumstances of these cases. In short, it misdirected itself as to what Babar Ahmad requires by way of approach.
I do not feel able to say that, properly self-directed, SIAC would necessarily have found a violation. I think that, by reason of the misdirection, SIAC may not have made all the findings, one way or the other, which the correct approach would have required. In any event, whether or not a violation had been established is essentially a matter for SIAC, upon proper self-direction. On the genuine Article 3 issue I simply conclude that the ground of appeal should succeed to the extent of remittal to SIAC for redetermination.
By emphasising the “differential” approach of the “health” cases, Aleksanyan v Russia (46468/06) (2011) 52 EHRR 18 and N v United Kingdom (2008) 47 EHRR 39 and the “inconsistent pattern of gross and systematic violation” in Batayav, SIAC had misdirected itself and failed to apply the full, nuanced, and holistic approach of Ahmad v United Kingdom (2013) 56 EHRR 1 to the unusual circumstances of the case. That finding did not mean that SIAC would necessarily have found a violation of Article 3 but it did require the case to be remitted. As far as verification of the Algerian government’s assurances was concerned, SIAC had erred in law by placing reliance on some sources of verification which the evidence did not allow, but there remained other points which had not been attacked. The appellants had not been materially disadvantaged, nor the proceedings rendered unfair, by any evidence about DRS presence and support remaining within closed judgments.
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