QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Hani El Sayed Sabaei Youssef
|- and -
|The Home Office
Mr. Philip Sales and Mr. Jonathan Swift (instructed by Treasury Solicitor) for the Defendant.
Hearing dates : 5, 6, 7 and 12 July 2004
Crown Copyright ©
We are satisfied that the Home Secretary will wish to pursue these cases as far as it is reasonable for him to do but there are a number of factors which suggest assurances would do little or nothing to diminish the Article 3 risk. First that the assurances given in Chahal by the Indian Authorities were not accepted. The ECHR found that " despite the efforts of the government to bring about reform, the violation of human rights by certain members of the security forces … is a recalcitrant and enduring problem".
And, in contrast to the Egyptians, Chahal's asylum application had been refused on the basis that he did not have a well-founded fear of persecution in India and the assurances were seen as reinforcing our assessment that Chahal would not be at risk, even at the lower refugee convention threshold. The Egyptians, on the other hand, have had their asylum applications refused by virtue of the refugee clauses in the refugee convention. All three submitted plausible claims of harassment and torture at the hands of the Egyptian authorities. In refusing their applications we acknowledged that theirs were cases where the Secretary of State might ordinarily have granted asylum.
The main problem is that the Egyptian authorities (sic) record in the treatment of political opponents is, by any standards not good (please see the attached extracts from the US State Department Report 1997 and the Amnesty International Annual Report 1998). In particular as you will see, abuse and torture are widespread despite the prohibition by the constitution of infliction of physical harm upon those arrested or detained. My first question therefore is whether in the face of this evidence, the Home Secretary might reasonably conclude that assurances from the Egyptians could be sufficiently authoritative and credible to diminish the Article 3 risk sufficiently to make removal to Egypt a realistic option.
If your advice is that there is at least an arguable case for seeking undertakings the next question is what form they should take. We think it likely that the Egyptian authorities would detain and question the group on their activities in the UK so this suggests that the undertakings should cover, inter alia, safeguards against unlawful detention, humane treatment if lawfully detained and the requirement for a fair trial should charges be pressed. In addition, we should maybe obtain a view from the FCO on how far any subsequent assurances could be depended upon, and seek clarification on whether the undertakings would remain in force should there be a change of regime in Egypt.
The British Government requests that the Egyptian Government provide written assurances for the safety and well being of [four Egyptian nationals] who we are seeking to deport from the United Kingdom. We request that these assurances provide the following specific guarantees should the above named be arrested and or charged with a criminal offence in Egypt:
-- They shall receive no ill treatment whilst in detention.
--They shall receive a fair and public hearing by an independent and impartial judiciary -- and any trial would take place in a civilian court.
--They should be informed promptly and in detail of the nature of accusations against them.
-- They shall have adequate time and facilities to prepare for their defence.
-- They shall be able to examine or have examined witnesses against them and to obtain the attendance and examination of witnesses on their behalf.
-- They shall have the ability to appoint legal representation of their own choice.
--That, should the defendants be convicted of a capital offence, the death sentence would be commuted.
-- That, during any term of imprisonment, arrangements would be agreed for regular (at least monthly) access by British Government officials and independent medical personnel.
-- In the event of a failure by the British Government to meet their visiting obligations the defendants would have telephonic access to a United Kingdom based lawyer who could pursue their visiting obligations.
The Prime Minister thinks we are in danger of being excessive in our demands of the Egyptians in return for agreeing to the deportation of the four Islamic Jihad members. He questions why we need all the assurances proposed by FCO and Home Office Legal Advisers. There is no obvious reason why British Officials need to have access to Egyptian nationals held in prison in Egypt, or why the four should have access to a UK- based lawyer. Can we not narrow down the list of assurances we require?
In general the Prime Minister's priority is to see these four Islamic Jihad members returned to Egypt. We should do everything possible to achieve that. I should be grateful for a further report, allowing time for the Prime Minister to intervene himself, if necessary, before any action is taken to release the four from custody.
[W]hen I took this decision [to detain the four men under immigration powers] I did so in the knowledge that there were some significant obstacles which would need to be overcome and that the chances of effecting deportation were not good. There is, unfortunately, ample evidence from a range of sources of serious human rights abuses in Egypt. The risk to Islamic activists, in particular, is well documented. Indeed three of the four men submitted plausible claims of harassment and torture at the hands of the Egyptian authorities…
The difficulty which was evident from the outset was Article 3 of the ECHR. There are no exclusion clauses in Article 3. The ECHR confirmed in its judgment in the case of Chahal, a Sikh extremist the previous administration sought to deport to India, that the protection offered by Article 3 is absolute. Deportation will represent a breach of Article 3 if an individual has shown substantial grounds for believing that he would face a real risk of being subjected to inhuman or degrading treatment, regardless of any risk he may pose. On the facts we are clear that it would be unreasonable to argue, without assurances, that the four would not face an Article 3 risk if returned to Egypt.
As our aim is to deport the men from the United Kingdom, not to deport them to Egypt we considered whether it would be possible to remove the group to a country other than Egypt. However after careful consideration of the possibilities, FCO advice was that it would not be feasible to identify a country willing to accept the group to which it would be reasonable to consider sending them. This option was therefore discounted.
I am satisfied that we will only have a chance of satisfying the courts - in the first instance the Special Immigration Appeals Commission (SIAC) – of the safety of the four if returned to Egypt, if we have the strongest possible assurances. Any weakening of what we request from the Egyptian authorities would reduce still further the slim chance we have of effecting the group's removal.
If the Egyptians indicate that they are likely to be unwilling to accede to our request, in whole or in part, we will consider whether there is anything else we can do. Realistically however there is probably very little scope of pursuing the deportations any further. I have noted your wish to have an opportunity to intervene before any action is taken to release the men and will ensure that you are provided with a report on the position.
I am satisfied from communications I have received from the British Embassy in Cairo that the Egyptian Government is seriously considering whether to offer assurances and that they have undertaken to respond promptly. If the assurances sought are forthcoming, then the FCO's assessment is that the Egyptian Government would abide by the assurances given and that it would be entirely reasonable for the UK Government to rely on them. The Egyptian Government will be conscious that, in the event that the assurances in question are not adhered to, its reputation within the international community would be seriously compromised.
I have been given to understand by officials at the Home Office that the Home Secretary continues to be of the view that it remains proper to maintain the applicant in detention pending the continuing discussions with the Egyptian authorities on the issue of assurances. By reason of the level at which the assurances are being sought and the delicate nature of the discussions being pursued, it is not possible for me to indicate any definitive time limit in which either a satisfactory outcome will be reached or it will become evident that there is no reasonable prospect of returning the applicant to Egypt without breaching Article 3 of the European Convention on Human Rights. The issue of assurances is being pursued with as much despatch as is reasonably possible in the circumstances, and the Egypt Government has undertaken to respond promptly.
Once the possibility of assurances is finally ruled out we shall have, given the information we have about human rights abuses in Egypt, no option but to accept that the men would face Article 3 ECHR risk if returned to Egypt. We will then need to grant them exceptional leave to enter.
POSSIBLE DEPORTATION FROM THE UK OF FOUR EGYPTIAN JIHAD MEMBERS
The Egyptian Government has now confirmed that they do not see a future in discussions on assurances. Advice from the Foreign Office is that you should now write to President Mubarak; but that you should not press him further about assurances. I support that advice.
2 Once there is no possibility of receiving assurances the men will have to be released as there would be no longer any basis for their continued detention or deportation. I can continue to detain the men while you consider the Foreign Office advice although an early decision – within forty eight hours – would be appreciated.
3 I wrote to you on 5 May setting out the background to the deportation process as it effects this group and my view on taking the cases forward. I am aware that there also has been further correspondence between your private secretary and the FCO.
4 It is now clear that the Egyptians see no future in discussions on assurances; and that this is a decision that has been reached after consideration at the highest levels.
5 I understand that the Foreign Office are recommending that it would be helpful if you were to write to President Mubarak about the importance of UK/Egypt co-operation in the fight against terrorism and confirming your commitment to working closely with the Egyptians in this area in the future. But the FCO does not recommend writing to President Mubarak in an attempt to change the Egyptian response as to the giving of assurances in these cases.
6 I am clear that, without any assurances, the men would face an Article 3 risk if they were returned to Egypt. As we have already ruled out the possibility of removing the men to anywhere other than Egypt this means that there is no longer a basis for detaining them under immigration powers. I will therefore have no option other than to agree to their very early release. In my letter of 25 May, I did, however, make clear that I would provide you with a report before any action was taken to release the men. I am doing that now. If you decide to write to President Mubarak in the terms advised by FCO (ie making general points but not raising the issue of assurances) we will need to make arrangements to release the men as a matter of urgency. I will therefore be grateful if your officials could let mine know, if possible, within the next forty-eight hours, how you would prefer to proceed. Although the habeas corpus hearing I mentioned in my last letter was adjourned sine die we may need to explain our actions to a court at a future date. We are, in any event, required to account for our actions since the habeas hearing to the representatives of one of the four by Monday of next week at the latest.
The Prime Minister has reflected further on this difficult issue. He is also aware of the strong advice from our Embassy in Cairo, yourselves and SIS that we should not revert to President Mubarak to seek a full set of assurances from the Egyptians.
However, the Prime Minister is not content simply to accept that we have no option but to release the four individuals. He believes that we should use whatever assurances the Egyptians are willing to offer, to build a case to initiate the deportation procedure and to take our chance in the courts. If the courts rule that the assurances we have are inadequate, then at least it would be the courts, not the government, who would be responsible for releasing the four from detention. The Prime Minister's view is that we should now revert to the Egyptians to seek just one assurance, namely that the four individuals, if deported to Egypt, would not be subjected to torture. Given that torture is banned under Egyptian law, it should not be difficult for the Egyptians to give such an undertaking. He understands that additional material will need to be provided to have a chance of persuading our courts that the assurance is valid. One possibility would be for HMG to say that we believed that, if the Egyptian government gave such an assurance, they would be sufficiently motivated to comply with it. We would need some independent expert witness to back that up.
You and the Embassy are best placed to advise the best route to securing such an assurance. I should be grateful if you were to put that in hand. Assuming that you choose a route other than a letter from the Prime Minister to President Mubarak, we can hold that card in reserve until we see how the Egyptians respond to our simplified request.
Meanwhile, we should continue to take action to keep the four Egyptians in detention. The Prime Minister will wish to know if there is an imminent risk of the courts obliging us to release them.
Although it was clear at this stage [1 June 1999] that there remained difficulties with obtaining assurances from the Egyptians the Government did not take the view that Mr. Al Baz's comments on progress yet ruled out a realistic possibility of obtaining appropriate assurances and therefore of removing Mr. Youssef. Considerable consultations therefore continue to be necessary with the Government at the highest levels.
I can confirm that we do see a realistic possibility that the Egyptian authorities will provide reliable assurances within a reasonable time. I am not able to give a timetable for the receipt of such assurances, but I can assure you that the matter continues to be given the highest priority.
The position is very difficult; particularly as it is far from clear what Number 10 believe will be gained from pursuing the matter further. All the evidence from FCO is that the Egyptians are not interested in pursuing the idea of assurances (regardless of the nature of the assurances being requested); and that losing the cases in the courts here would not assist our bilateral relationship.
[W]e have gone back to FCO at official level to explore with them what they might be able to say on the subject; and also whether there would be any prospect of identifying a prominent and respected academic who would be prepared to say that a single assurance would be worthwhile. FCO have made clear to us that they would at best be able to offer a "very carefully circumscribed" view that they accepted the specific assurance as far as it went. However it seems clear that while this would cover the torture of the men on direct orders of the Egyptian Government it would not go to the far more significant question of free-lance behaviour on the part of members of the security forces. As FCO have informed us that they see no possibility of identifying a prominent and respected academic who would be prepared to say something helpful on the matter of assurances you would be left with in the uncomfortable position of having to balance an Egyptian assurance on torture (if forthcoming), and a carefully circumscribed FCO statement as to it's reliability, against the information available as to the behaviour of the Egyptian forces.
Number 10's view seems to be that the Egyptians would have no difficulty in giving an assurance as to torture. It may be that this is the case in principle. However the FCO view is that the Egyptians have discounted the idea that these cases should be continued on the basis of assurances given by the Egyptian Government – whatever the nature of those assurances. This is a perfectly understandable position given that it has been made clear to the Egyptians that we could not be certain that a court would accept any assurances they gave as being satisfactory. FCO therefore think it highly unlikely that the Egyptians would give the single torture assurance even if we ask for such an assurance.
You will wish to reach your own view as to the way ahead. It is, however, important that decisions are made at as early a stage as possible because of the requirement for us to state our case for maintaining detention in renewed Habeas Corpus proceedings. A statement of our progress in obtaining satisfactory assurances would be required by 5pm on Friday; and may be required a day earlier if the representatives of two of the men are successful in obtaining an earlier hearing than that directed for the other two. There has, of course, been no progress in our discussion with the Egyptians since 2 June (when they indicated that assurances remained difficult) because of the need to consult Number 10, parliamentary counsel and FCO. This leaves us in a particularly vulnerable position. The fact that in earlier proceedings we were warned that the question of assurances should be resolved in a matter of "weeks not months" increases that vulnerability now that two months have passed without demonstrable progress being made.
The Foreign and Commonwealth Office assess that if the assurance sought from the Egyptian government is forthcoming, then the Egyptian government will make every possible effort to ensure that the assurance is abided by.
POSSIBLE DEPORTATION FROM THE UK OF FOUR EGYPTIAN JIHAD MEMBERS
You suggested that we should ask the Egyptians for a single assurance on torture. I am not satisfied that an assurance of that sort, even if forthcoming, would be sufficient for me to proceed to issue notices of intention to deport in these cases. In the circumstances I consider that I have no basis for the continuing detention of these men. I, therefore, intend to release them tomorrow. We will otherwise be required tomorrow, to justify in writing to the court their further detention, in anticipation of a habeas corpus hearing next Friday. Advice from the Foreign Office is that you should now write to President Mubarak as previously proposed. The Foreign Office will ensure that the Egyptians are informed of the release.
2. I wrote to you on 3 June explaining that in my view in the light of the Egyptian decision that there was no future in discussions on assurances, it was now necessary for me to release the four men, unless you wish to make a personal approach to President Mubarak.
3. Your Private Secretary indicated in his letter of 14 June that your view was that we should pursue the question of assurances further – and in particular that we should ask the Egyptians for a single assurance on the issue of torture. Having explored with the Foreign Office what support they could reasonably indicate for such an assurance, and having considered the available material on the human rights situation in Egypt, I am unable to conclude that an assurance of the kind you propose would be sufficient, even if it were forthcoming.
4. The Foreign Office have made clear to us that they would at best be able to offer a "very carefully circumscribed" view that they accepted a specific " torture" assurance as far as it went. Whilst this could cover the torture of the men on the direct orders of the Egyptian Government, it would not go to the far more significant question of free-lance behaviour on the part of members of the security forces. As the Foreign Office have advised us that they see no possibility of identifying a prominent and respected academic who would be prepared to say something helpful on the matter of assurances I would be left in the well–nigh impossible position of having to balance an Egyptian assurance on torture (if forthcoming), and a carefully circumscribed Foreign Office statement as to its reliability, against the information available as to the behaviour of the Egyptians Security Forces. (In addition to the torture issue there are also some difficult questions raised by the trial in absentia of three of the four men. These would have been dealt with had we obtained the original assurances requested from the Egyptians.)
5. In the event I am not convinced that the Egyptians would be willing to give even the single assurance proposed. I have been advised by the Foreign Office that the Egyptians are uncomfortable with the whole idea of assurances rather than with the details of particular assurances. They are certainly not interested in a potentially public discussion of their internal affairs in our courts.
6. In all the circumstances I cannot see that there is any prospect of removing the men from the United Kingdom. I therefore have no alternative but to order their release from detention and intend to do so tomorrow (9/7/99). We would otherwise be required tomorrow to justify to the court their further detention in anticipation of a Habeas Corpus hearing next Friday. I appreciate that this is not your preferred option. Nor is it mine. I only reached this conclusion after very careful consideration of all the available material.
7. You may now wish to write to President Mubarak about the importance of UK/Egypt co-operation in the fight against terrorism and confirming your commitment to working closely with the Egyptians in this area in the future. I understand that the Foreign Office previously provided an appropriate draft to this effect. The Foreign Office will ensure that the Egyptians are made aware of the releases before they take place.
The applicable legal approach
A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.
Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to exercise his power of detention.
In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable 'expedition' to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time.
In deciding whether all reasonable expedition has been exercised one has of course to have regard to all the circumstances of the case. In this case it is right to have regard to the complexity and sensitivity of the case: for example, it is plain that the decisions were not able to be taken by civil servants. Matters have to be referred up to Ministers. There is the problem of ensuring that information on security matters is kept secure, and in terms of liaising with other authorities the liaisons have to be taken at the very highest level. Moreover there is the need to consult with other government departments who have a legitimate interest, given the security implications.
Quite apart from delay, it may of course become clear at a relatively early stage that removal is not a realistic possibility. In such a case continued detention would not be justified.
It is clear that the Secretary of State is not entitled to keep the applicant in detention under the 1991 Act on what might be called the off chance that it might be possible against the odds to return him to Egypt. Nevertheless, the question whether there is or is not a realistic prospect of being able to obtain satisfactory assurances from the Egyptian authorities is for the Secretary of State to decide in the first instance. Potentially, of course, any such decision by him would be susceptible to judicial review on conventional Wednesbury grounds…
[A]s things stand at the moment it cannot be said in the light of Mr Wood's affidavit that the department are being inactive or that they or not taking all reasonable steps in exercising all reasonable expedition, given the particular difficulties that are inherent in this case. It is understandable that steps were not taken prior to 23 September. That would have been premature pending a decision on the asylum application.
Following 23 December the possibility of return to a safe third country was examined and that has now been found to be not possible. Therefore the possibility of returning the applicant to Egypt is under active consideration. The discussions are necessarily complex and delicate and they are bound to take some time. It is understandable that a precise timetable cannot be given. One can well understand, for example, that legal advice was sought before papers were laid before the Home Secretary. Thus I am not satisfied, given the particular difficulties inherent in this case that the first limb of Mr Scannell's submissions is made out. Turning to his second proposition, I regard that as unduly simplistic. I am simply not able to say that the Secretary of State would inevitably be Wednesbury perverse in concluding that an assurance, the text of which is not yet available, from the Egyptian authorities, would in effect be worthless. Nor can I say that the Secretary of State is Wednesbury perverse in adhering to the view that there is some realistic prospect at being able to return the applicant to Egypt. If the assurances are given it would be for the Secretary of State to decide whether they can be relied on. No doubt in doing so he will bear in mind the observations of the European court of Human Rights in Chahal .
As I have indicated, if he concludes that the assurances can be replied upon then it may well be that his decision would be susceptible to challenge upon the basis that it was Wednesbury perverse in the light of the available evidence, but I am not prepared to pre-empt what the Secretary of State's decision might be or what view might be taken of it, given that the approach has yet to be made to the Egyptian authorities, and so we do not know whether they would be prepared to give an assurance and if so what the form of that assurance might be….
At the moment the Secretary of State considers that there is a realistic prospect that it may be capable of being overcome. At this stage I cannot say that his conclusion is Wednesbury perverse and, therefore, the detention is still within the ambit of Schedule 2 to the 1971 Act… There is no power to detain the applicant simply on the basis that the Secretary of State would like to be able to remove him to Egypt but cannot really see any practical means of doing so at the moment. Detention for that purpose would be outside the ambit of Schedule 2 to the Act…
As I indicated, the Secretary of State must be satisfied there is a realistic possibility of removing the applicant. He cannot be detained until it is clear that it is impossible to remove him. That would be detaining him on the basis that there was merely an off chance that he might be able to be removed. In my judgement, such detention would not be authorised under Schedule 2.
Was Mr. Youssef unlawfully detained in the period 14 January 1999 to 9 July 1999?