SIAC Ruling in Abid Naseer and Ahmed Faraz case another blow to diplomatic assurances, UK gvt contemplates changing the Human Rights Act

The UK’s Special Immigration Appeals Commission decided that a number of suspected terrorists (the so-called ‘Pathway Students’, check their e-mail conversations here) could not be deported to Pakistan as they faced a real risk there of being subjected to torture, inhuman or degrading treatment or punishment in contravention of Article 3 ECHR. Neither man was allowed to see the evidence upon which the court reached its decision, and nor was their solicitor. The open decisions is available here.

The Court had reached this decision notwithstanding the fact that the United Kingdom, which had wanted to deport them, had in fact acquired diplomatic assurances/memoranda of understanding from Pakistan assuring that they would not be subjected to any such treatment. The difficulty identified by the SIAC was not necessarily with the deportation so to speak or even with the concept of acquiring such assurances, but rather with the fact that the assurances were to be kept confidential and, as a result, could not really be challenged or measured for compliance. At paragraph 36 of this decision, the SIAC put it thus:

It is theoretically possible that a written private assurance could [be satisfactory], but unless it was written and unequivocal, it would be open to later misunderstanding and would, in any event, be publicly deniable. Verification of a confidential assurance would be problematic and could not provide the protection to an individual which public scrutiny, by the High Commission, by local media, by family and by organisations such as Human Rights Watch and Amnesty International, can provide. For these reasons, we agree with SIAC’s observations in Y and Othman and would not be willing to accept confidential assurances as a sufficient safeguard against prohibited ill-treatment in a state in which otherwise there was a real risk that it would occur.

Equally, Rosalind English has posted an article in which she concludes as follows:

It is difficult to see how the authorities can make any effective progress in the suppression or even restriction of terrorist activities in this country if their hands are so firmly tied behind their backs by the manacles forged under Article 3. If the new government’s anti-terrorism strategy is to be picked out of the ruinous state in which it currently lies, it is to be hoped that judicial bodies like SIAC do not continue to reject out of hand destination countries’ reassurances as to the safety of deportees, or good evidence of such safety merely because it has to remain confidential. Continued deference to this broad interpretation of Article 3, ever requiring a country to put its own security at risk, makes a mockery of the Convention in general and the Article 2 in particular, which is after all designed to protect the right to life of people living within the signatory state’s own jurisdiction.

On the other hand, the ruling raises questions about the use of secret evidence. The men’s solicitor, Gareth Peirce, condemned the decision as “the worst of all possible worlds”, as they had been branded terrorists on the basis of material they could not see or challenge.

“It’s no victory, even though the young men have won,” Peirce said. “They have been stigmatised for life and put at risk or even further risk in their own country on the basis of the shocking phenomenon of secret evidence. It’s no way to conduct justice. If people have committed a crime, put them on trial.”

Earlier Lord Carlile of Berriew QC, the government’s independent reviewer of  terrorism legislation, was obliged to concede that none of the arrests  had been made “on a full evidential foundation,” and that “the  authorities had no specific information as to where the suspected  terrorist event was to occur, nor any precise knowledge as to its  nature” (PDF).
He added that some of the men had essentially been arrested through  guilt by association, but attempted to justify the operation by stating  that the police were “probably right” to go ahead with it.

As the Times reported, the men are currently being held at immigration removal  centres, “but are expected to be released later.”

Home Secretary Theresa May said she would not be appealing against the  ruling handed down by Siac but she was disappointed.

Later the coalition government announced it is to create a commission to review the UK’s Human Rights Act. (More info background info here, comment here.)

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2 Responses

  1. […] deportation and extradition decisions in the past few weeks, none more controversial than the “Pathway students” case, where two suspected terrorists were saved from deportation to Pakistan as they were […]

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