ON APPEAL FROM
THE SPECIAL IMMIGRATION APPEALS COMMISSION
(Appeal No: SC/61/2007, BAILII:  UKSIAC 61/2007 )
Strand, London, WC2A 2LL
B e f o r e :
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE RICHARDS
|- and -
|Secretary of State for the Home Department
Steven Kovats QC (instructed by The Treasury Solicitor) for the Secretary of State
Anuja Dhir QC and Cathryn McGahey (instructed by the Special Advocates' Support Office) appeared as Special Advocates
Hearing date : 22 June 2010
Crown Copyright ©
Lord Justice Richards :
The open judgment
"32. Applying the yardsticks identified in BB [i.e. the case reported on appeal to the House of Lords as RB (Algeria) v Secretary of State for the Home Department  2 AC 110], we are satisfied that the assurances, if fulfilled, are such that XX will not be subjected to treatment contrary to Article 3, that the assurances have been given in good faith, that there is a sound objective basis for believing that they will be fulfilled and that, by reason of the right guaranteed to XX by paragraph 5 of the Memorandum of Understanding, to contact and receive visits from the EHRComm …, the assurances are capable of being verified. (If he is detained and no contact occurs, it will be obvious that something has gone wrong.). For substantially the same reasons, we are satisfied that the United Kingdom would not be in breach of its obligations to XX under Articles 5 and 6. Accordingly, we dismiss this appeal."
The confidential and closed judgments
The applications before the court
(1) SIAC were wrong not to exclude evidence from unofficial detention centres housing individuals held in incommunicado arbitrary detention and in particular if such evidence was obtained by the attendance of Security Service officers at such places of detention ("Ground 1");
(2) SIAC's conclusion that there was no real risk of a flagrant breach of article 6 involved an irrational finding of fact as to the risk of XX facing prosecution, and an error of law as to the meaning of flagrant breach ("Ground 2"); and
(3) SIAC's conclusion that there was no real risk of ill-treatment inconsistent with article 3, or of a flagrant violation of article 5, involved the error of law identified at (1) above, irrational findings of fact, and a failure to follow House of Lords guidance as to the mandatory pre-requisites to be satisfied before a deportation pursuant to assurances can be lawful ("Ground 3").
The fresh evidence application was encompassed within the development of those grounds.
"There is no internationally acknowledged principle – or jus cogens – prohibiting detention except in circumstances prescribed by internationally accepted law, nor any international agreement that unlawful detention is a crime of such gravity that no evidence resulting from it – still less any evidence about it – should be admitted in proceedings before an English court. If there were such a rule, it could not be one-sided."
"The House of Lords held that effective verification was an essential ingredient. An assurance the fulfilment of which was incapable of being verified would be of little worth."
Maurice Kay LJ, V-P :