Factual and Procedural Background
This opinion concerns three appeals from determinations of the Special Immigration Appeals Commission ("SIAC") dismissing appeals against deportation decisions made by the Secretary of State for the Home Department on grounds of national security. The appellants, anonymized as MT, RB, and U, were each ordered to be deported to Algeria. The central issue in each appeal was whether there was a real risk that the appellant would be subjected to treatment contrary to article 3 of the European Convention on Human Rights ("the Convention") if returned to Algeria. SIAC's jurisdiction was limited to questions of law material to the deportation decisions. The appeals involved consideration of the use of closed material by SIAC, the application of Algerian legal provisions known as the Ordonnance and the Charter for Peace and National Reconciliation, and questions relating to refugee status under the Refugee Convention 1951.
Legal Issues Presented
- Whether SIAC erred in law in relying on closed material not disclosed to appellants in determining the risk of treatment contrary to article 3 upon return to Algeria.
- Whether SIAC erred in its construction and application of articles 8 and 9 of the Algerian Ordonnance in assessing the risk to appellant Y.
- Whether article 1F(c) of the Refugee Convention applies to acts committed after recognition as a refugee.
- The scope of this court’s jurisdiction to entertain appeals from SIAC on questions of law versus findings of fact, particularly in the context of article 3 claims.
- Whether SIAC erred in law in concluding there were no substantial grounds for believing appellants BB and U would face a real risk of treatment contrary to articles 3 or 6 of the Convention if returned to Algeria.
- Whether assurances provided by the Algerian authorities were sufficient to mitigate risks of ill-treatment or unfair trial.
Arguments of the Parties
Appellants' Arguments
- The use of closed material without disclosure to appellants or their open advocates was unlawful and violated procedural fairness under article 3.
- SIAC erred in law by relying on article 9 of the Ordonnance for appellant Y without evidential basis, and by failing to properly scrutinize the application of the Ordonnance's provisions.
- Article 1F(c) of the Refugee Convention should be interpreted as applying only to acts committed before recognition as a refugee.
- The court of appeal should be able to review SIAC’s factual findings on risk of ill-treatment in article 3 cases, not just errors of law.
- Assurances from the Algerian government were unreliable due to alleged lack of control over security forces, particularly the DRS.
- Prison conditions in Algeria and the risk of flagrant denial of fair trial under article 6 presented real risks to appellants.
- SIAC failed to take into account all relevant risk factors and misapplied the test for risk of ill-treatment as established in case law such as Karanakaran.
Respondent's Arguments (Secretary of State)
- The statutory scheme governing SIAC’s use of closed material was lawful and Parliament had specifically provided for such procedures, including the use of special advocates.
- SIAC’s reliance on article 9 of the Ordonnance was a matter of interpretation of Algerian law, and the absence of evidence on that point did not amount to error of law.
- Article 1F(c) applies without temporal limitation to acts committed before or after recognition as a refugee.
- The court’s jurisdiction is limited to questions of law and does not extend to re-assessing SIAC’s factual findings unless irrational or perverse.
- Assurances from Algeria were reliable, and SIAC had properly considered the political context, improvements in Algeria, and the mechanisms for monitoring compliance with assurances.
- SIAC applied the correct legal test in assessing risk of ill-treatment and fair trial, including appropriate consideration of evidence and risk factors.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Chahal v United Kingdom (1996) 23 EHRR 413 |
Test under article 3 ECHR for risk of torture or inhuman treatment on deportation. |
Confirmed that the test is whether there is a real risk of such treatment on return; emphasized rigorous scrutiny of such cases. |
| Simms v Secretary of State for the Home Department [2000] 2 AC 115 |
Principle of legality requiring Parliament to explicitly confront overriding fundamental rights. |
Applied to conclude Parliament was aware of and accepted the political cost of SIAC’s closed material procedures. |
| E v Secretary of State for the Home Department [2004] QB 49 |
Error of fact leading to unfairness can amount to an error of law in appeals. |
Used to analyze whether SIAC’s reliance on article 9 without evidence was an error of law. |
| Runa Begum v Tower Hamlets LBC [2003] 2 AC 430 |
Examples of error of law arising from misunderstanding or ignorance of an established and relevant fact. |
Discussed in relation to whether the principle applies to the present case’s factual uncertainty. |
| O'Kelly v Trusthouse Forte [1984] QB 90 |
Distinction between questions of pure law and mixed questions of fact and law. |
Clarified that SIAC’s factual findings on risk are questions of fact, while legal application of article 3 is a question of law. |
| Karanakaran v Secretary of State [2000] 3 All ER 449 |
In asylum cases, decision-makers must consider all material relevant to future risk, including reasonable speculation. |
SIAC applied this approach to risk assessment, with qualification for article 3 cases. |
| Shamayev v Georgia and Russia (application no. 36378/02) |
Mere possibility of ill-treatment is insufficient; there must be substantial grounds for a real risk. |
SIAC applied this principle to conclude no real risk of ill-treatment for appellant U. |
| Soering v United Kingdom (1989) 11 EHRR 439 |
Article 6 may be engaged where there is a risk of flagrant denial of a fair trial upon extradition or deportation. |
SIAC used this to assess risk of unfair trial for appellant U. |
| Mamatkulov v Turkey (2005) 41 EHRR 25 |
Risk of flagrant denial of justice must be assessed by reference to facts known or that should have been known at the time of extradition. |
Guided SIAC’s approach to assessing risk of unfair trial. |
| R (Ullah) v Special Adjudicator [2004] 2 AC 323 |
Successful reliance on article 6 requires showing risk of flagrant denial of fair trial. |
SIAC applied this standard in considering appellant U's claims. |
| Batayav v Secretary of State [2003] EWCA Civ 1489 |
Risk to life under article 2 requires review with appropriate intensity but subject to rationality. |
Distinguished from the present case; SIAC’s decision not irrational. |
| Pushpanathan v Canada [1999] INLR 36 |
Interpretation of article 1F exclusions in Refugee Convention. |
Considered but not preferred; SIAC and this court preferred Immigration Appeal Tribunal reasoning. |
| KK v Secretary of State [2004] UKIAT 00101 |
Article 1F(c) applies to acts contrary to UN purposes whenever committed, including post-recognition. |
Adopted by SIAC and this court as correct interpretation. |
| Sing v Canada [2007] FC 361 |
Diplomatic assurances should not be relied upon in cases of consistent gross violations of human rights. |
Distinguished; SIAC found no consistent gross violations in Algeria. |
Court's Reasoning and Analysis
The court first addressed the appellants’ challenge to SIAC’s use of closed material, concluding that the statutory scheme expressly allowed such procedures, including the use of special advocates, and that no principle of domestic or European law prevented SIAC from relying on undisclosed evidence. The court emphasized the distinction between the values of openness and legality and the imperative to reach the correct decision, noting that absence of full disclosure does not automatically invalidate rigorous scrutiny under article 3.
Regarding appellant Y, the court found that SIAC had erred in law by relying on article 9 of the Algerian Ordonnance without evidential basis. The court held that reliance on a legal provision without supporting evidence about its practical application was unfair and contrary to natural justice principles. Evidence obtained after SIAC’s decision indicated that article 9 was unlikely to apply as SIAC held, and this constituted a material error of law justifying remittal.
On the interpretation of article 1F(c) of the Refugee Convention, the court agreed with SIAC’s reasoning that the exclusion applies to acts contrary to the purposes and principles of the United Nations regardless of whether committed before or after recognition as a refugee. The court rejected submissions for a temporal limitation absent explicit language.
The court carefully analyzed the limits of its jurisdiction in appeals from SIAC, reaffirming that SIAC’s findings of fact are generally final unless irrational or perverse. The court rejected the appellants’ argument that article 3 claims require appellate courts to re-examine factual findings, distinguishing fact-finding from legal application of the Convention.
In appellant BB’s case, the court found no error of law in SIAC’s conclusions on risk of ill-treatment or unfair trial, including assessment of assurances from Algeria and conditions in detention. The court rejected allegations that assurances were worthless due to lack of control over the DRS, noting SIAC’s findings on the Algerian state’s commitment to oversight and the political context.
In appellant U’s case, the court upheld SIAC’s open judgment conclusions on risk as justified on the evidence. However, the court expressed concern about SIAC’s closed judgment, noting that the closed evidence was capable of undermining SIAC’s conclusions and that SIAC had not adequately explained its reasoning. The court allowed U’s appeal and remitted the case for reconsideration of the closed material.
The court also addressed detailed arguments on the application of the Karanakaran test to article 3 cases, concluding that SIAC applied the correct holistic approach to risk assessment, taking into account all relevant material and discarding only matters safely excluded. It rejected submissions that SIAC misunderstood the effect of Shameyev or misapplied the test for reliance on assurances.
On article 6 claims, the court accepted SIAC’s approach that a flagrant denial of justice must be established to engage the article, and that SIAC’s detailed examination of the Algerian judicial system justified its conclusion that no such risk existed for appellant U.
Holding and Implications
The court allowed the appeal of appellant Y on the ground that SIAC’s reliance on article 9 of the Ordonnance without evidential basis was unfair and an error of law, and remitted the matter to SIAC for reconsideration of the risk on return.
The court dismissed the appeal of appellant BB on the substantive issues of risk and assurances, finding no error of law in SIAC’s conclusions, but remitted the case to SIAC for further consideration on a point of form related to the open judgment.
The court allowed the appeal of appellant U in part, upholding SIAC’s open judgment conclusions on risk but remitting the case for reconsideration of the closed evidence and its effect on the overall conclusion.
Each case is remitted to SIAC for further consideration, preferably by the same constitution, given the related nature of the issues concerning assurances from the Algerian government. The court emphasized that the remittal is procedural and does not establish new precedent beyond the legal principles applied. Applications for bail related to appellants Y and BB are to be made to SIAC rather than this court.