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Cite as: [2008] ECHR 113

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FOURTH SECTION

Application no. 3455/05
by A. AND OTHERS against the United Kingdom
lodged on 21 January 2005

Statement of Facts

THE FACTS

The applicants, 11 individuals of Moroccan, Palestinian, French, Algerian and Tunisian nationality are represented before the Court by Ms Gareth Pierce, of Messrs Birnberg Pierce and Partners, a firm of lawyers practising in London.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

Each of the applicants was certified by the Home Secretary under Section 21 of the Anti-Terrorism, Crime and Security Act 2001 (“the 2001 Act”).

They challenged their certification by applying to the Special Immigration Appeals Commission (“SIAC”), in accordance with Section 30 of the 2001 Act. The challenge included the question whether the Secretary of State, in the case of each applicant, could have reasonably believed that his presence in United Kingdom was a risk to national security or could have reasonably suspected that he was an international terrorist. On 30 July 2002, the Commission delivered its ruling. It accepted that there was a public emergency threatening the life of the nation within the meaning of Article 15 of the Convention. It also accepted that the measures taken were “strictly required” in the circumstances. However, it ruled that the derogation was unlawful because the relevant provisions of the 2001 unjustifiably discriminated against foreign nationals, in breach of Article 14 of the Convention. The Commission quashed the derogation order of 11 November 2001 (see below) and issued a declaration of incompatibility in respect of Section 23 of the 2001 Act under Section 4 of the Human Rights Act 1998.

The question of the individual circumstances of the applicants was adjourned, pending the outcome of the proceedings concerning the points of law.

Leave to appeal was granted, and on 29 October 2002, the Court of Appeal allowed the Secretary of State’s appeal against the decision of the Commission. The Court of Appeal considered that British nationals (who could not be removed from the country) were not in an analogous situation to foreign nationals who could not be deported because of fears for their safety. Such foreign nationals did not have a right to remain in the country but only a right (for the time being) not to be removed for their own safety. The Court of Appeal added that it was well established in international law that, in some situations, States may distinguish between nationals and non-nationals, especially in times of emergency. The Court of Appeal further concluded that Parliament was entitled to limit the measures proposed so as to affect only foreign nationals suspected of terrorist links because, although Article 15 of the Convention permits measures that derogate only “to the extent strictly required by the exigencies of the situation” Parliament was entitled to reach the conclusion that only detention of the limited class of foreign nationals with which the measures are concerned was “strictly required” in the circumstances.

The House of Lords gave judgment in the case on 16 December 2004. By a majority of eight to one, the House held that the United Kingdom had not lawfully derogated from Article 5 § 1 of the Convention under Article 15. Lord Hoffman concluded that there was no public emergency threatening the life of the nation for the purposes of Article 15. Lords Bingham, Nicholls, Hope, Scott, Rodger, Carswell and Baroness Hale concluded that the relevant provisions of the 2001 Act were not “strictly required by the exigencies of the situation” and were not consistent with the United Kingdom’s “other obligations under international law”. Lord Walker dissented. The majority granted a quashing order in respect of the Derogation Order, and a declaration under Section 4 of the Human Rights Act that Section 23 of the 2001 Act was incompatible with Article 5 and 14 of the Convention insofar as it was disproportionate and permitted discriminatory detention of suspected international terrorists.

The effect of the quashing order was to disapply the derogation order and thereby to render Article 5 fully applicable once more to the applicants’ detention as a matter of domestic law. The applicants submit that it thus amounted to a finding that their rights under Article 5 (alone and with Article 14) had been breached. The applicants were not, however, required to be released immediately because, pursuant to Section 4 of the Human Rights Act (see below), the declaration of incompatibility had no impact on the validity of the primary legislative provisions at issue, and was not binding on the parties.

B. Relevant domestic law and practice

Section 4 of the Human Rights Act 1988 provides that where a court finds that primary legislation is in breach of the Convention, the court may make a declaration of incompatibility. Such a declaration does not affect the validity of the provision in respect of which it is made and is not binding on the parties to the proceedings in which it is made, but special arrangements may be made (Section 10) to amend the provision to remove the incompatibility.

Section 14 of the Human Rights Act 1998 makes provision for prospective derogations from the Convention (under Article 15 of the Convention) to be designated for the purposes of the Human Rights Act by the Home Secretary. On 11 November 2001 the Secretary of State made a Derogation Order under Section 14 of the Human Rights Act in which he set out the terms of a proposed notification to the Secretary General of the Council of Europe, pursuant to Article 15 of the Convention. The proposed notification referred to the terrorist attacks of 11 September 2001 on New York, Washington DC and Pennsylvania and to United Nations Security Council resolutions recognising those attacks as a threat to international peace and security and requiring all states to take measures to prevent the commission of terrorist attacks “including by denying safe haven to those who finance, plan, support or commit terrorist attacks”. The Schedule stated:

“There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom. As a result of the public emergency, provision is made in the [2001 Act], inter alia, for an extended power to arrest and detain a foreign national which will apply where it is intended to remove or deport the person from the United Kingdom but whose removal or deportation is not for the time being possible, with the consequence that the detention would be unlawful under existing domestic law powers. … To the extent, therefore, that the exercise of the extended power may be inconsistent with the United Kingdom’s obligations under Article 5(1), the Government has decided to avail itself of the right of derogation conferred by Article 15 (1) of the Convention and will continue to do so until further notice.”

Formal notice of derogation was given to the Secretary General on 18 December 2001. The notice provided as follows:

“Public emergency in the United Kingdom

The terrorist attacks in New York, Washington, D.C. and Pennsylvania on 11th September 2001 resulted in several thousand deaths, including many British victims and others from 70 different countries. In its resolutions 1368 (2001) and 1373 (2001), the United Nations Council recognised the attacks as a threat to international peace and security.

The threat from international terrorism is a continuing one. In its resolution 1373 (2001), the Security Council, acting under Chapter VII of the United Nations Charter, required all States to take measures to prevent the commission of terrorist attacks, including by denying safe haven to those who finance, plan, support or commit terrorist attacks

There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom.

As a result, a public emergency, within the meaning of Article 15 (1) of the Convention, exists in the United Kingdom.

The Anti-terrorism, Crime and Security Act 2001

As a result of the public emergency, provision is made in the Anti-terrorism, Crime and Security Act 2001, inter alia, for an extended power to arrest and detain a foreign national which will apply where it is intended to remove or deport the person from the United Kingdom but where removal or deportation is not for the time being possible, with the consequence that the detention would be unlawful under existing domestic law powers. The extended power to arrest and detain will apply where the Secretary of State issues a certificate indicating his belief that the person's presence in the United Kingdom is a risk to national security and that he suspects the person of being an international terrorist. That certificate will be subject to an appeal to the Special Immigration Appeals Commission ("SIAC"), established under the Special Immigration Appeals Commission Act 1997, which will have power to cancel it if it considers that the certificate should not have been issued. There will be an appeal on a point of law from a ruling by SIAC. In addition, the certificate will be reviewed by SIAC at regular intervals. SIAC will also be able to grant bail, where appropriate, subject to conditions. It will be open to a detainee to end his detention at any time by agreeing to leave the United Kingdom.

The extended power of arrest and detention in the Anti-terrorism, Crime and Security Act 2001 is a measure which is strictly required by the exigencies of the situation. It is a temporary provision which comes into force for an initial period of 15 months and then expires unless renewed by the Parliament. Thereafter, it is subject to annual renewal by Parliament. If, at any time, in the Governments' assessment, the public emergency no longer exists or the extended power is no longer strictly required by the exigencies of the situation, then the Secretary of State will, by Order, repeal the provision.

Domestic law powers of detention (other than under the Anti-terrorism, Crime and Security Act 2001)

The Government has powers under the Immigration Act 1971 ("the 1971 Act") to remove or deport persons on the ground that their presence in the United Kingdom is not conducive to the public good on national security grounds. Persons can also be arrested and detained under Schedules 2 and 3 to the 1971 Act pending their removal or deportation. The courts in the United Kingdom have ruled that this power of detention can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal and that, if it becomes clear that removal is not going to be possible within a reasonable time, detention will be unlawful (R. v Governor of Durham Prison, ex parte Singh [1984] All ER 983).

Article 5(1)(f) of the Convention

It is well established that Article 5(1)(f) permits the detention of a person with a view to deportation only in circumstances where "action is being taken with a view to deportation" (Chahal v United Kingdom (1996) 23 EHRR 413 at paragraph 112). In that case the European Court of Human Rights indicated that detention will cease to be permissible under Article 5(1)(f) if deportation proceedings are not prosecuted with due diligence and that it was necessary in such cases to determine whether the duration of the deportation proceedings was excessive (paragraph 113).

In some cases, where the intention remains to remove or deport a person on national security grounds, continued detention may not be consistent with Article 5(1)(f) as interpreted by the Court in the Chahal case. This may be the case, for example, if the person has established that removal to their own country might result in treatment contrary to Article 3 of the Convention. In such circumstances, irrespective of the gravity of the threat to national security posed by the person concerned, it is well established that Article 3 prevents removal or deportation to a place where there is a real risk that the person will suffer treatment contrary to that article. If no alternative destination is immediately available then removal or deportation may not, for the time being, be possible even though the ultimate intention remains to remove or deport the person once satisfactory arrangements can be made. In addition, it may not be possible to prosecute the person for a criminal offence given the strict rules on the admissibility of evidence in the criminal justice system of the United Kingdom and the high standard of proof required.

Derogation under Article 15 of the Convention

The Government has considered whether the exercise of the extended power to detain contained in the Anti-terrorism, Crime and Security Act 2001 may be inconsistent with the obligations under Article 5(1) of the Convention. As indicated above, there may be cases where, notwithstanding a continuing intention to remove or deport a person who is being detained, it is not possible to say that "action is being taken with a view to deportation" within the meaning of Article 5(1)(f) as interpreted by the Court in the Chahal case. To the extent, therefore, that the exercise of the extended power may be inconsistent with the United Kingdom's obligations under Article 5(1), the Government has decided to avail itself of the right of derogation conferred by Article 15(1) of the Convention and will continue to do so until further notice.

Period covered: 18/12/2001 –"

Part 4 of the Anti-Terrorism Crime and Security Act 2001 (“the 2001 Act”), which is the subject of the United Kingdom derogation, contains the powers to detain without charge or trial those suspected of involvement in international terrorism. It provides, so far as material, as follows:

“PART 4

IMMIGRATION AND ASYLUM

Suspected international terrorists

21. Suspected international terrorist: certification

(1) The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably-

(a) believes that the person's presence in the United Kingdom is a risk to national security, and

(b) suspects that the person is a terrorist.

(2) In subsection (1)(b) "terrorist" means a person who-

(a) is or has been concerned in the commission, preparation or instigation of acts of international terrorism,

(b) is a member of or belongs to an international terrorist group, or

(…)

(6) Where the Secretary of State issues a certificate under subsection (1) he shall as soon as is reasonably practicable-

(a) take reasonable steps to notify the person certified, and

(b) send a copy of the certificate to the Special Immigration Appeals Commission.

(7) The Secretary of State may revoke a certificate issued under subsection (1).

(8) A decision of the Secretary of State in connection with certification under this section may be questioned in legal proceedings only under section 25 or 26.

(9) An action of the Secretary of State taken wholly or partly in reliance on a certificate under this section may be questioned in legal proceedings only by or in the course of proceedings under-

(a) section 25 or 26, or

(b) section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) (appeal).

22. Deportation, removal, etc.

(1) An action of a kind specified in subsection (2) may be taken in respect of a suspected international terrorist despite the fact that (whether temporarily or indefinitely) the action cannot result in his removal from the United Kingdom because of-

(a) a point of law which wholly or partly relates to an international agreement, or

(b) a practical consideration …

(2) The actions mentioned in subsection (i) are –

(…)

(e) making a deportation order …

(3) Action of a kind specified in subsection (2) which has effect in respect of a suspected international terrorist at the time of his certification under section 21 shall be treated as taken again (in reliance on subsection (1) above) immediately after certification.

23. Detention

(1) A suspected international terrorist may be detained under a provision specified in subsection (2) despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by-

(a) a point of law which wholly or partly relates to an international agreement, or

(b) a practical consideration …

24. Bail

(1) A suspected international terrorist who is detained under a provision of the Immigration Act 1971 may be released on bail. …

25. Certification: appeal

(1) A suspected international terrorist may appeal to the Special Immigration Appeals Commission against his certification under section 21.

(2) On an appeal the Commission must cancel the certificate if-

(a) it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b), or

(b) it considers that for some other reason the certificate should not have been issued.

(3) If the Commission determines not to cancel a certificate it must dismiss the appeal.

(4) Where a certificate is cancelled under subsection (2) it shall be treated as never having been issued.

(5) An appeal against certification may be commenced only-

(a) within the period of three months beginning with the date on which the certificate is issued, or

(b) with the leave of the Commission, after the end of that period but before the commencement of the first review under section 26.

26. Certification: review

(1) The Special Immigration Appeals Commission must hold a first review of each certificate issued under section 21 as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the certificate is issued.

(2) But-

(a) in a case where before the first review would fall to be held in accordance with subsection (1) an appeal under section 25 is commenced (whether or not it is finally determined before that time) or leave to appeal is given under section 25(5)(b), the first review shall be held as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the appeal is finally determined …”

COMPLAINTS

The applicants allege violation of Articles 3, 5 §1, 5 § 4, 5 § 5, 6, 13 and 14 of the Convention.

The applicants contend that as the conditions for a valid derogation from Article 5 § 1 are not met, as the House of Lords found, the applicants are detained for a purpose which is not prescribed by Article 5 § 1, and that the detention is in violation of that provision. They further contend that as the legislation only applies to non-UK nationals, they are also victims of a violation of Article 14 in connection with Article 5.

The applicants contend that their detention has been declared to be in breach of domestic law, and that – although they remain detained or liable to be detained if they enter the country – it is not open to them to take any proceedings in the United Kingdom in which they can claim that the detention is not lawful, or claim compensation in respect of such detention, or bring about their release. They see violations of Articles 5 § 4 and 5 and Article 13 of the Convention.

Under Article 3 of the Convention (read alone and in conjunction with Article 13), the applicants claim that their continued detention in conditions of maximum security with no knowledge of the case against them and no idea of when, if ever, they are likely to be released, amounts to torture or inhuman or degrading treatment for which there is no remedy under domestic law. In this regard the applicants rely on the psychiatric harm that they allege they suffered as a direct result of their detention. They further claim that the United Kingdom derogation from Article 5 § 1 is in truth a disguised and impermissible derogation from Article 3 and that their detention is therefore a breach of that Article.

Under Article 6 of the Convention, the applicants claim that the proceedings determined either a civil right or obligation, or a criminal charge, and contend that the limitations on their procedural rights – they do not know the case they have to meet, they do not have the right to give and call evidence, nor the right to effective legal representation – violate the provision. They note that in separate proceedings (now pending before the House of Lords), the Court of Appeal held that the SIAC was entitled to rely on evidence obtained by torture of individuals, and that the SIAC may have been influenced by material obtained in breach of Article 3 of the Convention. Finally in connection with Article 6, the applicants see a violation in the ability of the Secretary of State to re-issue a certificate following a successful appeal to the Commission without the necessity for a change of circumstances.