COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
(1) The Hon Mr Justice Ouseley, Mr CP Mather and Mr J Daly
(2) The Hon Mr Justice Mitting, Senior Immigration Judge Latter
And Mr J Daly
(3) The Hon Mr Justice Mitting, Senior Immigration Judge Mackey
and Mr J Mitchell
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BUXTON
LADY JUSTICE SMITH
| (1) MT (ALGERIA)
(2) RB (ALGERIA)
(3) U (ALGERIA)
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Rabinder Singh QC and Hugh Southey (instructed by Fisher Meredith) for the Appellant RB
Richard Drabble QC and Hugh Southey (instructed by Birnberg Peirce and Partners) for the Appellant U
Dinah Rose QC and Alex Bailin (instructed by intervener Liberty) for the Respondent
Robin Tam QC, Robert Palmer and Caroline Neenan (instructed by the Treasury Solicitor) for the Respondent
Judith Farley as Special Advocate for MT
Nicholas Blake QC and M Chamberlain as Special Advocate for RB
Andrew Nicol QC and T de la Mare as Special Advocate for U
(instructed in each case by the Special Advocates Support Office)
Hearing dates: MT: 25-28 April, 2-4 and 24 May, 28 June and 24 August 2006
RB: 14-17 November and 5 December 2006
U: 13-21 February, 17-18 April and 14 May 2007
Crown Copyright ©
|The statutory scheme||9|
|The effect of article 3 of the Convention||10-13|
|Legality and fairness as a matter of English law||14-18|
|A question of balance||19-22|
|Conclusion as to the use of closed
|The appeal of Y
|The background facts||26-30|
|Meeting in Algiers on 14 November 2006||59-64|
|Article 1F(c) of the Refugee Convention||77-90|
|Disposal of Y's appeal
|The jurisdiction of this
|The statute and the issue||93-96|
|A mixed question of law and fact||97-99|
|The appellants' case expanded||100|
|Authority on proportionality is irrelevant||101|
|Fact-finding obligations in a Convention case||102-107|
|The role of "assessment"||108-110|
|The comparison with judicial review||111-112|
|Conclusion as to the court's
|The appeal of BB
|The factual findings of SIAC||121|
|Control of the DRS||122-123|
|SIAC's assessment of the attitudes of the Algerian state||124|
|Are assurances ever appropriate?||125-127|
|The terms of the assurances||128-129|
|Conclusion on SIAC's findings of fact||133-134|
|Disclosure of information by the Secretary of State||135-137|
|Disposal of BB's appeal
|The appeal of U
|The appeal to SIAC||142-155|
|The appeal to this court||156|
|Verification of compliance with assurances||167|
|The language of the assurances||168|
|Separate consideration of the risk or torture and bad prison conditions||174|
|Disposal of U's appeal
|Extracts from the Closed Judgment in BB and U
Sir Anthony Clarke MR:
This is the judgment of the court to which each of its members has made a substantial contribution.
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
"whether SIAC erred in taking into account material which had not been disclosed to the appellant in support of its conclusion that the appellants did not face a real risk of torture if removed to Algeria."
The statutory scheme
"When exercising its functions, [SIAC] shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest."
The effect of article 3 of the Convention
"the notion of an effective remedy under Article 13 requires independent scrutiny of the claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 Such scrutiny needed not be provided by a judicial authority but, if it is not, the powers and guarantees that it affords are relevant in determining whether the remedy before it is effective."
This passage certainly does not carry the principle contended for. It says nothing to mandate any particular form of scrutiny, indeed envisages that the scrutiny may not even be by a court, and gives no support at all for the suggestion that article 3 requires the applicant to be present throughout.
Legality and fairness as a matter of English law
"the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."
This principle is often not easy to handle, because, Parliament not having known at the time of legislating the precise list of constitutional principles that applied to it, it may be difficult to extract whether or not its language passes the test. There is, however, no such difficulty in the present case.
A question of balance
Conclusion as to the use of closed material
The appeal of Y
i) whether SIAC erred in holding that Y would be able to take advantage of article 9 of the Ordonnance which implemented the Algerian Charter for Peace and National Reconciliation ('the Charter');
ii) whether SIAC erred in placing any reliance upon closed material in its consideration of Y's case on safety on return to Algeria; and
iii) whether SIAC erred in concluding that article 1F(c) of the Refugee Convention 1951 ('the Refugee Convention') extended to acts committed by Y after his recognition as a refugee.
We will consider each of those questions in turn after referring briefly to the background facts.
The background facts
"A Extracts from the Charter for Peace and National Reconciliation
MEASURES AIMED AT CONSOLIDATING PEACE
Firstly: Extinguishment of judicial proceedings against individuals who have given themselves up to the authorities since the 13th of January, 2000, the statutory time-limit for effects of the Law on Civil Concord;
Secondly: Extinguishment of proceedings against individuals putting an end to their armed activity and surrendering arms in their possession. This extinguishment of proceedings does not apply to individuals involved in collective massacres, rapes and bombings in public places;
Thirdly: Extinguishment of judicial proceedings against wanted individuals, in Algeria and abroad, who have decided to give themselves up voluntarily to the relevant Algerian authorities. This extinguishment of proceedings does not apply to individuals involved in cases of collective massacres, rapes and bombing in public places;
Fourthly: Extinguishment of judicial proceedings against all individuals involved in support networks for terrorism, who have decided to declare their activities to the relevant Algerian authorities;
Fifthly: Extinguishment of judicial proceedings against individuals sentenced in absentia, other than those involved in collective massacres, rapes and bombings in public places;
Sixthly: The pardoning of individuals already sentenced and imprisoned for supporting terrorism;
Seventhly: The pardoning of individuals already sentenced and imprisoned for acts of violence, other than collective massacres, rapes and bombings in public places;
Eighthly: Commutation of and remission of sentence for all other individuals on whom final sentence has been served or wanted individuals for whom the extinguishment of judicial proceedings or pardons described above do not apply."
"234. . Mr Oakden's assessment of the overall situation in Algeria was that there had been real progress in social, economic and institutional modernisation in Algeria in the last five or six years; terrorism had fallen away sharply and democracy had been firmly established in Algerian politics. As to the state of UK/Algeria relations, he assessed this as being in sound shape and fast developing.
235. Mr Oakden's statement said that the British Government accepted that it could be at risk of breaching its obligations under the European Convention if it were to return Y without first obtaining assurances as to his treatment on return. Algeria's human rights record had been criticised by NGOs and the international community. The concerns covered torture, arbitrary detention, extrajudicial executions and the right to a fair trial. On the other hand the British Government's view, from diplomatic reporting, and other Governments' published assessments was that the situation was improving. The improvement in human rights was directly linked to the recent political and security history of Algeria, as described in the two FCO papers.
236. It is clear from this "second" statement of Mr Oakden's that as at November 2005, the SSHD was not seeking to return Y without assurances about his treatment in a variety of ways, assurances which he was seeking to make the subject of independent and credible monitoring.
Article 1 The purpose of the present Ordinance is:
- to implement the provisions of the Charter for Peace and National Reconciliation, which is the expression of the sovereign will of the Algerian people
- to give concrete expression to the determination of the Algerian people to put the final touches to the policy of peace and national reconciliation, which is essential for the Nation's stability and development.
IMPLEMENTATION OF MEASURES TO CONSOLIDATE PEACE
Art 2 - The provisions set out in the present Chapter shall apply to persons who have committed or who have acted as accomplices in the commission of one or more of the offences described by and punishable under Articles 87a, 87a 1, 87a 2, 87a 3, 87a 4, 97a 5, 87a 6 (paragraph 2), 87a 7, 87a 8, 87a 9 and 87a 10 of the Penal Code and also offences connected with them.
Extinguishment of the right to bring a public prosecution
Art 4 - The right to bring a public prosecution shall be extinguished in respect of any person who has committed one or more of the offences described in the provisions referred to in Article 2 above, or who has acted as an accomplice in the commission of such offences, and who has surrendered himself to the competent authorities during the course of the period between 13 January 2000 and the date of publication of the present Ordinance in the Journal Officiel [Official Gazette].
Art 5 - The right to bring a public prosecution shall be extinguished in respect of any person who, within a maximum of six (6) months from the date of publication of the present Ordinance in the Journal Officiel, voluntarily presents himself to the competent authorities, ceases to commit the offences described in the provisions of Articles 87a, 87a 1, 87a 2, 87a 3, 87a 6 (paragraph 2), 87a 7,87a 8, 87a 0 and 87a 10 of the Penal Code and surrenders the arms, munitions, explosives and any other materials in his possession.
The right to bring a public prosecution shall be extinguished in respect of any person which is being sought within or outside national territory for having committed or having acted as an accomplice in the commission of one or more of the offences described in the provisions referred to in Article 2 above who, within a maximum of six (6) months from the date of publication of the present Ordinance in the Journal Officiel, voluntarily presents himself to the competent authorities and declares that he is putting an end to his activities.
Art 7 - The right to bring a public prosecution shall be extinguished in respect of any person who has committed or has acted as an accomplice in the commission of one or more of the offences described in Articles 87a 4 and 87a 5 of the penal Code who, within a maximum of six (6) months from the date of publication of the present Ordinance in the Journal Officiel, puts an end to his activities and makes a declaration to that effect to the competent authorities to whom he has presented himself.
Art 8 - The right to bring a public prosecution shall be extinguished in respect of any person who has been sentenced by default or in absentia for committing one or more of the offences described in the provisions referred to in Article 2 above who, within a maximum of six (6) months from the date of publication of the present Ordinance in the Journal Officiel, voluntarily presents himself to the competent authorities and declares that he is putting an end to his activities.
Art 9 - The right to bring a public prosecution shall be extinguished in respect of any person who is held in custody and has not been finally sentenced for having committed or having acted as an accomplice in the commission of one or more of the offences described in the provisions referred to in Article 2 above.
Art 10 - The measures provided for in Articles 5, 6, 8 and 9 above shall not apply to persons who have committed or who have acted as accomplices in the commission of or have instigated the offences of collective massacre, rape or the use of explosives in public places.
Art 11 - The beneficiaries of the extinguishment of the right to bring a public prosecution, covered by Articles 5, 6, 7, 8 and 9 above, shall return to their homes as soon as the formalities provided for in the present Ordinance have been completed.
Rules of procedure for the extinguishment of the right to bring a public prosecution
Art 13 - Any person who has presented himself to the competent authorities for the purposes of the application of the provisions of Articles 5, 6, 7 and 8 above shall be required to make a declaration, which must inter alia cover the following:
- the offences which he has committed or in the commission of which he has acted as an accomplice or which he has instigated
- the arms, munitions or explosives or any other materials which he has in his possession which are connected with those offences
In the latter case, he must hand them over to the said authorities or inform them where they can be found.
The standard form for the declaration and the information it must contain shall be laid down by regulation.
"354. But second, even if Y were to apply in time, the declaration required by Articles 8 and 13 would give rise to difficulties which are not yet fully resolved. It would be wholly unreasonable to expect Y to admit to offences of the gravity alleged which he denies, whether or not that would lead to extinguishment of the right to prosecution in respect of them and even more so if there were real doubt over whether the acts committed could be charged in a way which fell outside the extinguishment provisions. We accept that the consistent material from the Ministry of Justice shows that the declarant can enter "not applicable" in that section of the declaration which requires the acts committed to be declared. It is the effect of that which is at issue. A declaration in those terms may only enable the declaration to be treated as valid, ie effective as a declaration for the purposes of Article 13. Its effectiveness as a means of achieving extinguishment of the offences is less clear.
355. We recognise that declarations are not required of those who presented themselves to the authorities between 2000 and 27 February 2006, nor in respect of those who seek extinguishment of prosecution while in custody, or amnesty, commutation or remission. That does not show that the "not applicable" declaration suffices for extinguishment under Articles 4-8 of the right to prosecute for acts which have not been admitted. Voluntary presentation to the authorities before the extinguishment provisions were introduced may have provided an opportunity for the authorities to investigate and take a decision on prosecution; likewise those finally sentenced will have had a form of judicial determination of their acts and those in custody will have been arrested for an identifiable offence. The SSHD's submissions as to the effect of a "not applicable" declaration may be right; but there is no clear written statement from the Ministry of Justice to that effect. It is all very well it being said that it is a "purely procedural rule which, in reality, has no negative bearing on [Y's] interests...", as did the Algerian Note of 7 May 2006. But the effect of it on the procedures for extinguishment remains unclear. The latest answers from the Ministry do not clarify this. Examples might have shed light but none were then provided.
356. The operation of the declaration is a matter upon which the Government is better placed than Y to obtain the necessary and conclusive information. This is one of a number of areas concerning the operation of the Ordonnance in which the SSHD's evidence was unsatisfactory. The evidence was not given by an expert in the foreign law or procedure. In the light of the newness of the provisions, that may be understandable but it serves to emphasise the scope for uncertainty about how a new process will operate in practice, as underlined by the two re-arrests of two individuals apparently released in error under the Ordonnance. The evidence was given often at second or third hand and the understandings were not all confirmed in writing; even when written confirmation was sought, the responses fell short of a clear confirmation or answer to the question. We accept that part of the SSHD's difficulties arises from the fact that the Algerian side in the negotiations does not see why the UK Government seeks this information when it has said that it will apply the procedure to Y and he will benefit from the extinguishment provisions. We recognize the consistency of the assurances that the Ordonnance would apply to Y, and that the declaration of offences signed "not applicable" would suffice. But it has not been conclusively demonstrated. There would still be a risk that Article 8 would not be the route to the beneficial application of the Ordonnance to Y, even if the declaration were made in time."
SIAC thus rejected the Secretary of State's case based on article 8 of the Ordonnance. It is important to note that the Secretary of State has not sought to appeal against that conclusion.
"It is difficult on the face of the document [ie the Ordonnance] to understand why the distinction is being drawn requiring a declaration in some but not others, save that there appears to be a general underlying rationale that once somebody is within the criminal justice system, then the declaration is not required. That does beg an interesting question about the application of Article 9 to Mr Taleb if he were to return to Algeria without having taken advantage of the Article 8 provision. On that hypothesis, he goes back, he does not take advantage of the Charter, he says he wishes to appeal or be retried in respect of his in absentia convictions. It would appear on the face of it that Article 9 would then apply to him, because on that basis he would then be held in custody not having been sentenced for having committed or having acted as an accomplice, etc and the offences for which he was being tried fall within Article 2. It may well be that the draftsman simply did not contemplate the possibility that someone who could take advantage under Article 8 of clearing the decks so far as his in absentia conviction is concerned would return or make himself available to the authorities and effectively force them into prosecuting him."
"Again, there is no evidence at all for that proposition from the Algerian authorities. It is a little difficult to understand how it could be the position, as they have repeatedly stated and indeed repeat in the document that was served arising out of 6th/7th June meeting, that it could be a condition of the application of the Charter where someone is convicted in absentia that they do complete a declaration and yet, when an individual returns and appeals their conviction having not completed a declaration, and therefore not benefiting from the Charter, they are automatically given the benefit of the Charter without a declaration."
"MR JUSTICE OUSELEY: But whatever Article 9 applies to, it does not envisage a declaration.
MR EMMERSON: I agree with that, but it would be a surprising consequence if a declaration were required from a convicted person who was convicted in absentia before they returned but not required after they returned. The fact that a consequence is surprising does not make it impossible any more than the general thrust of the Secretary of State's argument, which is a surprising one about Article 10, is impossible. It is just that there is no evidence to support that conclusion"
"364. We conclude that while Y might not benefit from the provisions of Article 8 because he could apply too late to do so, or because the "not applicable" declaration might not cover the charges which he would face upon appealing against convictions, it is clear that he would benefit from Article 9 in relation to those charges. The route to benefit would be either of the provisions mentioned under Article 15. If the charges are confined to Article 87, there would be no power in the prosecutor or Court to exclude Y e.g. on the basis that he ought to be charged with graver offences, or that he could have been.
377. Accordingly, we conclude that Y can return to Algeria, can enter opposition to his in absentia convictions and will then be able to benefit from the provisions of Article 9 of the Ordonnance, even though he will be unable to benefit from Article 8. The nature of the declarations is thus only relevant if there were to be an extension of the deadline, which is mere speculation. We think there is no real likelihood that he would not benefit in that way."
Meeting in Algiers on 14 November 2006
"Anthony requested assistance in interpreting Algerian Law. He explained that we had submitted to the judge that 'Y' would benefit from Arts 8 and 13 of the Ordonnance and that Amara had previously said that if 'Y' completed a Declaration under the Charter but was not willing to detail terrorist acts committed the declaration would still be valid. Anthony asked what the term 'valid' meant; whether in the sense of Art 13 that he had made a declaration; or in the sense of Art 8 that the Declaration would be effective in extinguishing the right to prosecute. He also explained that the Judge had held that there was an unresolved ambiguity about the meaning of 'valid'; but that this did not matter because 'Y' could rely on Art 9 because Y had not been finally convicted by a court (he was tried in absentia) and he would be detained on return and therefore would be in custody. Anthony asked whether Counsel for the Government had been correct in arguing that Articles 8 and 13 would operate to extinguish the right to prosecute 'Y'; and whether the judge had been right in holding that he would benefit from Article 9."
"On Article 9, Amara said he noted the interpretation that had been given to this by the SIAC judge; it was an interpretation that could certainly be supported from the words of the Ordonnance; he hoped that the UK Court of Appeal would take the same view; but this was not what those drafting the Ordonnance had had in mind when they drafted the words concerned. Amara said that each of the articles from 4 onwards dealt with a particular circumstance. In respect of article 9 they had had in mind people who were already in detention at the time of the Ordonnance came into effect. These people could not reasonably be expected to make a voluntary act of adherence to the Charter, so they were automatically included in its provisions, and then some thousands of them had indeed been released under it. For those tried in absentia article 8 was the relevant article. Again, he could not authoritatively state what view an Algerian judge would take if 'Y' sought to benefit from Article 9; and the intentions of those drafting the text were less important than the words themselves; but in his opinion an Algerian judge would be unlikely to take the same view as SIAC on this point."
" In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning."
The reference to CICB is a reference to the decision of the House of Lords in R v Criminal Injuries Compensation Board ex p A  2 AC 330.
"398. It might be arguable that even if Y were to be retried and to enjoy no benefit from the extinguishment provisions of the Ordonnance, and were instead forced to rely on the commutation and remission provisions instead, there would be no risk of a breach of Article 3. After all, the offences are serious and could properly be retried without that trial, or a life sentence and detention, in principle being persecutory or involving of themselves a breach of Article 3 ECHR.
399. We do not consider such a possibility in the light of what we have been told by Mr Oakden and what we have accepted are the true implications of the Charter and more particularly of the Ordonnance for Algerian politics and the response to Y's return. Mr Oakden has made much of the fact, and properly so, that the Algerians have been puzzled, genuinely as he sees it, as to why the UK seeks assurances to cover contingently events which they reassure the UK will not arise, because Y will benefit from the Ordonnance provisions on extinguishment of prosecution. Were Y to be retried on those charges, it would mean that what the UK Government had been told by Algeria at all levels was worthless or had been completely misunderstood. The Ordonnance would not assist except for commutation and remission. The prospect that Y would be detained by the DRS would become a real one on this hypothesis; there would be greater incentives to torture him, the period of detention would be far longer than has been envisaged by us or the UK in its evidence and submissions and the ability of interested parties to maintain his profile would diminish. The context in which those issues would be considered is wholly different from that which has been painted and which we have essentially accepted. It is impossible to take pieces of the picture and to try to apply them in that situation."
"Reliance on Article 9 was however the basis of SIAC's decision, though it did not express a view on whether, absent the applicability of Article 9, Y would still face a real risk of the forbidden treatment; on SIAC's analysis that issue did not arise for decision."
Article 1F(c) of the Refugee Convention
DEFINITION OF THE TERM "REFUGEE"
A. For the purposes the present Convention, the term "refugee" shall apply to any person who, . owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
C. This Convention shall cease to apply to any person falling under the terms of section A if:
(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or
(2) Having lost his nationality, he has voluntarily re-acquired it; or
(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or
(5) He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality:
(6) Being a person who has no nationality he is, because of the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence:
D. This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.
When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.
E. This Convention shall not apply to a person who is recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes:
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee:
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
PROHIBITION OF EXPULSION OR RETURN ("REFOULEMENT")
1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country to which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."
"The purpose of Art 1 is to define who is a refugee. Art 1F then establishes categories of persons who are specifically excluded from that definition. The purpose of Art 33 of the Convention, by contrast, is not to define who is and who is not a refugee, but rather to allow for the refoulement of bona fide refugee to his or her native country where he or she poses a danger to the security of the country of refuge, or to the safety of the community. This functional distinction is reflected in the Act, which adopts Art 1F as part of s 2, the definitional section, and provides for the Minister's power to deport an admitted refugee under s 53, which generally incorporates Art 33. Thus, the general purpose of Art 1F is not the protection of the society of refuge from dangerous refugees, whether because of acts committed before or after the presentation of a refugee claim; that purpose is served by Art 33 of the Convention. Rather, it is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status. Although all of the acts described in Art 1F could presumably fall within the grounds for refoulement described in Art 33, the two are distinct. This reasoning must also be applied when considering whether the acts falling under Art 1F(c) must be acts performed outside the country of refuge, as argued by the appellant. In my opinion, the refoulement provisions cannot be invoked to read into Art 1F(c) any such limitation. Where geographical limitations were required, the Convention specifically provided for them, as evidenced by the terms or Art 1F(b). The relevant criterion here is the time at which the refugee status is obtained. In other words, Art 1F(c) being referable to the recognition of refugee status, any act performed before a person has obtained that status must be considered relevant pursuant to Art 1F(c). "
"86. In Pushpanathan, as we have seen, the Supreme Court of Canada distinguished between Articles 32 and 33 and Article 1F(b). But it does not in our view follow that the mere fact that a person satisfies the requirements of Article 1 before he commits the act identified as causing exclusion under Article 1F(c) enables him to say that he continues to be a refugee. Article 1F(c) does not contain the words 'Outside the country of refuge prior to his admission to that country as a refugee', which are found in Article 1F(b). There is no reason at all to suppose that that difference is accidental. Acts which merit the condemnation of the whole international community must lead to exclusion from the benefits of the Refugee Convention when ever they occur.
87 . Article 1F (c) is not limited to acts committed before obtaining refuge. If he had been recognised as a refugee earlier, it would make no difference now.
88 Where, therefore, there are serious reasons for considering that an act contrary to the purposes and principles of the United Nations has been committed, it does not matter when or where it was committed, or whether it is categorised by municipal law as a crime. It leads to exclusion from the Refugee Convention.
89 This interpretation of the relevant clauses of the Refugee Convention is entirely coherent and sensible. It identifies what acts will lead to exclusion despite their being 'political'. A person whose acts (at any time) are contrary to the purposes and principles of the United Nations disqualifies himself from protection under the United Nations' Refugee Convention."
We agree with that reasoning and like SIAC at , in so far as there is a difference, prefer it to that in Pushpanathan.
"Reliance was placed on the existence of Article 33(2) as the sole post recognition removal power. Article 33(2) permits someone to be removed notwithstanding that he would be persecuted on return, in circumstances which may overlap with those in Article 1F (c). But they are not expressed in the same way and may not cover the same facts in any particular case. Nor is the possibility of removing someone who is a refugee on that basis the same as the obligatory exclusion of someone from being a refugee, formally recognised or not. True it is that almost all of the Convention is about the position of those who are refugees but that does not mean that their position cannot change or that the exclusion provisions cannot apply to exclude someone from being a refugee before or after formal state recognition as such. The focus remains on acts in the past rather than on future risk."
Disposal of Y's appeal
The jurisdiction of this court
The statute and the issue
"i) the terms of the assurances must be such that, if they are fulfilled, the person returning will not be subject to treatment contrary to article 3;
ii) the assurances must be given in good faith;
iii) there must be a sound objective basis for believing that the assurances will be fulfilled; and
iv) fulfilment of the assurances must be capable of being verified."
If that was the "approach" of SIAC it is difficult to see that there was anything wrong with it; and indeed no-one so argued.
"[SIAC] erred in its approach to the assurances provided by the Algerian authorities. Among other things, the Commission failed to provide sufficient reasons and held that the assurances were sufficient to ensure safety despite uncontested evidence that the Algerian authorities are unable to control significant elements of its security forces."
The first part of the main sentence, lack of reasoning, would potentially raise an issue of law, and is something to which we will return. The second part straightforwardly asserts an error in finding the facts.
"The Appellants should start by making clear the limited nature of their submissions. They acknowledge that [SIAC] is the fact finding body in relation to primary facts. For example, findings that any appellant lacked credibility can only be challenged on classic Wednesbury grounds. However, different considerations apply when facts found are then applied to determine whether removal amounts to a violation of the [ECHR]."
A mixed question of law and fact
"While it may be convenient for some purposes to refer to questions of "pure" law as contrasted with "mixed" questions of fact and law, the fact is that the appeal tribunal has no jurisdiction [under section 136(1) of the Employment Protection (Consolidation) Act 1978, which limited the jurisdiction of the Employment Appeal Tribunal to questions of law] to consider any question of mixed fact and law until it has purified or distilled the mixture and extracted a question of pure law."
In the present case the issue of fact that is distilled by proper analysis is the question of what treatment the applicant risks receiving when returned to Algeria. That is a pure issue of fact, no different from, for instance, the issue in a personal injury case of when the claimant will be free of disability. The second issue is, however, one of law: does the treatment found fall within the terms of article 3. That is to be decided according to legal rules, and in particularly the jurisprudence of the ECtHR, as to the meaning of article 3.
The appellants' case expanded
Authority on proportionality is irrelevant
Fact-finding obligations in a Convention case
"The object is to ensure that public authorities should act to avert or rectify any violation of a Convention right, with the result that such rights would be effectively protected at home, thus (it was hoped) obviating or reducing the need for recourse to Strasbourg."
Second, if the domestic appellate courts are indeed to act as a substitute for recourse to Strasbourg, then they must copy or apply the approach of the ECtHR, which is to form its own conclusions, not necessarily adopting those of the national court, as to issues of real risk: see for instance Hilal v United Kingdom (2001) 33 EHRR 2 at .
"as the result of one or more provisions of primary legislation the authority could not have acted differently."
In our case, the court is being asked to act differently from the limits placed on its jurisdiction by the statutory provisions referred to in paragraph 93 above. We can only achieve that end by redefining "issue of law" in a way that was plainly not in the mind of the legislator when he placed that limitation on the jurisdiction of the court. We cannot think that respect for the norms of the Convention requires this court to indulge in that exercise of redefinition.
The role of "assessment"
Comparison with judicial review
Conclusion as to the court's jurisdiction
The appeal of BB
"The task of [SIAC] is to determine whether or not there are substantial grounds for believing that there is a real risk that this applicant will be subjected to treatment contrary to Article 3 if he is returned to Algeria now."
At the same time, however, SIAC had to determine the general background conditions in Algeria. For that purpose, it referred in BB to the exhaustive summary of the history at  to  of its decision in Y. Those paragraphs were not challenged before us. Also in BB SIAC at  specifically adopted the reasoning and conclusions as to the current general conditions in Algeria that were set out in at  to  of the determination in Y. In the present case an attempt was made to persuade SIAC that its conclusions in Y had been erroneous, based on the evidence of an academic expert. SIAC, at its , rejected that evidence, and no attempt has been made before us to rehabilitate it. We will therefore, when discussing the reasoning in BB, remember where appropriate to assess that reasoning with regard to those parts of Y that were specifically incorporated into the judgment in BB.
The factual findings of SIAC
Control of the DRS
"Mr Layden is a realist. He acknowledges that torture still exists, but is getting less. He accepts that the civil authorities do not control the DRS (they report direct to the President as Minister of Defence). He has never seen any report of any prosecution of a DRS official for torture or ill-treatment. He bluntly acknowledged that he was not saying that there would not be a risk of ill-treatment if the United Kingdom had not made the special arrangements that it had. However his unshakable view was that the assurances given by the Algerian authorities in the case of BB eliminated any real risk that he would be subjected to torture or ill-treatment."
The Grounds of Appeal said many times, and in oral argument Mr Rabinder Singh repeated, that the evidence was that the DRS were not subject to state control. The third sentence of the passage quoted above was therefore highly misleading. What it should have said was that no-one at all controlled the DRS. It therefore followed that assurances as to future conduct given by the Algerian authorities were worthless, because they necessarily excluded any ability to apply those assurances in the case of the DRS.
SIAC's assessment of the attitudes of the Algerian state
"To give and break a solemn assurance given to another state would be incompatible with that ambition. So, too, would be a failure on the part of Central Government to ensure that its security services, at lower levels, did not frustrate them."
[3.21] to [3.22] of the appellant's skeleton complained that these findings, clearly highly damaging to BB's case, were inadequately reasoned. That complaint overlooks the very detailed analysis of the political background in Algeria that SIAC undertook in Y, which it cross-referred to in BB. SIAC's conclusions in these respects are unchallengeable.
Are assurances ever appropriate?
in circumstances where there is a consistent pattern of gross, flagrant or mass violations of human rights, or of systematic practice of torture, the principle of non-refoulement must be strictly observed and diplomatic assurances should not be resorted to.
The terms of the assurances
"Should [BB] be arrested in order that his status may be assessed, he will enjoy the following rights, assurances and guarantees as provided by the Constitution and the national laws currently in force concerning human rights his human dignity will be respected under all circumstances."
SIAC considered that that assurance met the first of its requirements (see  above), that the assurance was such that the person returned would not be subjected to treatment contrary to article 3. That conclusion was criticised on two grounds: the assurance referred only to Algerian, and not to international law, standards; and it did not explicitly exclude the use of torture.
"I agree with [the applicants] that it is of no use if China's failure to comply with the assurance against torture does not become public. For torture to become known, however, there would have to be some compliance and verification mechanisms in place. More specifically, there would have to be an effective monitoring system by independent organizations like the International Committee of the Red Cross."
In BB's case Algeria had not agreed to independent monitoring. It had however agreed to British Embassy officials maintaining contact with anyone returned who was not in detention, and with the next of kin of those who were detained. At its  SIAC found that those contacts, together with the continuing interest of organisations like Amnesty International, would mean that practical verification was feasible and would occur.
Conclusion on SIAC's findings of fact
Disclosure of information by the Secretary of State
Disposal of BB's appeal
The Appeal Of U
The appeal to SIAC
"Should the above-named person be arrested in order that his status may be assessed, he will enjoy the following rights, assurances and guarantees as provided by the Constitution and the national laws currently in force concerning human rights:
(a) The right to appear before a court so that the court may decide on the legality of his arrest or detention and the right to be informed of the charges against him and to be assisted by a lawyer of his choice and to have immediate contact with that lawyer;
(b) He may receive free legal aid;
(c) He may only be placed in custody by the competent judicial authorities;
(d) If he is the subject of criminal proceedings, he will be presumed to be innocent until his guilt has been legally established;
(e) The right to notify a relative of his arrest or detention;
(f) The right to be examined by a doctor;
(g) The right to appear before a court so that the court may decide on the legality of his arrest or detention;
(h) His human dignity will be respected under all circumstances."
"making a sincere, broadly-supported and generally successful attempt to transform itself from a war-torn authoritarian state to a normally functioning civil society; solemn diplomatic assurances given by the Algerian state to the British Government about individual deportees are reliable and can be safely accepted."
The appeal to this court
"There may be circumstances in which a decision-maker must take into account the possibility that alleged past events occurred even though it finds that these events probably did not occur. The reason for this is that the ultimate question is whether the applicant (in an asylum case) has a real substantial basis for his fear of future persecution. The decision-maker must not foreclose reasonable speculation about chances of the future hypothetical event occurring."
Also, the passage at [469g]:
"In the present public law context, where this country's compliance with an international convention is in issue, the decision maker is . not constrained by the rules of evidence that have been adopted in civil litigation and is bound to take into account all material considerations when making its assessment about the future.
This approach does not entail the decision-maker . purporting to find 'proved' facts, whether past or present, about which it is not satisfied on the balance of probabilities. What it does mean, on the other hand is that it must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did in fact occur . ."
"We do not regard ourselves as bound by Karanakaran to take into account matters which give rise to a mere possibility of risk even if we cannot say that, without doubt, they did not occur."
Verification of compliance with assurances
The language of the assurances
"To establish that there are substantial grounds for believing that a deportee would face a real risk of treatment infringing Article 3 by reason of prison conditions in the receiving state, the risk can be established either by evidence specific to the appellant's own circumstances or by reference to evidence applicable to a class of which he is a member. In the latter case, he will only succeed if he can point to a consistent pattern of gross and systematic violation of rights under Article 3."
Separate consideration of the risk of torture and bad prison conditions
"The right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society. The court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country."
"The court considers that, like the risk of treatment proscribed by Article 2 and/or Article 3, the risk of a flagrant denial of justice in the country of destination must primarily be assessed by reference to the facts which the contracting state knew or should have known when it extradited the persons concerned."
"while the Strasbourg jurisprudence does not preclude reliance on articles other than Article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case Where reliance is placed on Article 6, it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state."
"It can be regarded as settled law that where there is a real risk of a flagrant denial of justice in the country to which an individual is to be deported, Article 6 may be engaged."
"The Convention does not govern the actions of states not parties to it, nor does it purport to be a means of requiring the contracting state to impose convention standards on other states. Article 1 cannot be read as justifying a general principle to the effect that notwithstanding its extradition obligations, a contacting state may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention."
Disposal of U's appeal
i) A number of points of principle were taken to the effect that SIAC had made inappropriate used of closed material. We have concluded that none of those points of principle is sound: see  to  above.
ii) Y did not challenge SIAC's conclusion that he is a danger to national security. His challenge was to the conclusion that there is no real risk of his being ill-treated contrary to article 3 of the Convention if he is returned to Algeria. SIAC's conclusion was that Y would be entitled to rely upon article 9 of the Ordonnance. In our view, the process which led SIAC to reach that conclusion was not fair to him: see our conclusion at  and reasoning at  to . The correct course is to remit Y's case to SIAC in order to consider the Secretary of State's alternative case that it would in any event be safe to send him back to Algeria. SIAC did not give detailed consideration to that question in Y's case: see  to . We have rejected Y's challenge to SIAC's decision that he has lost his refugee status by reason of Article 1F(c) of the Refugee Convention: see  to .
iii) At  to  we consider the jurisdiction of this court in relation to appeals from SIAC on questions of law and distinguish them from questions of fact.
iv) As to BB, we have rejected his appeal against SIAC's decision that he is a danger to national security in a closed judgment given today, although we have remitted the matter to SIAC on a point of form: see . As to his case that SIAC erred in law in concluding that there were no substantial grounds for concluding that, if returned to Algeria, he would face a real risk of treatment contrary to article 3 or 6 of the Convention, we have concluded, on the basis of the open material, that SIAC made no such error of law: see  to . However, for reasons set out in our closed judgment, and on the case as a whole, we are persuaded that the case should be remitted to SIAC for further consideration: see .
v) In the case of U, he did not challenge the Secretary of State's decision that he was a threat to national security: see  to . The issue before SIAC was whether there were substantial grounds for concluding that, if returned to Algeria, he would face a real risk of treatment contrary to articles 3, 5 or 6 of the Convention. SIAC held that there were not. U challenged that decision. We consider that, so far as the open evidence is concerned, SIAC's overall conclusion is justified (on the facts found), namely that, in deporting U, the United Kingdom will not be in breach of its Convention obligations. However, having also considered the closed evidence and the arguments addressed to us by the special advocates, we cannot express the same degree of confidence. We have been shown closed evidence which is capable of undermining SIAC's overall conclusion. We do not say that this evidence does in fact undermine its conclusion, only that it is capable of doing so. We do not consider that SIAC has dealt adequately, in its closed judgment, with some of the salient points raised by the special advocates. SIAC has not adequately explained why it concluded that the closed evidence did not undermine the conclusion it had reached in its open judgment. Accordingly, we allow U's appeal and remit his case to SIAC for it to reconsider the closed evidence and the effect, if any, it has upon the conclusion in its open judgment: see .