The UK government's policy of "deportation with assurances" was called into question on Wednesday by decisions of the Court of Appeal of England and Wales in two key cases. The cases are that of Abu Qatada, a Jordanian national, and that of two Libyan nationals, referred to for the purposes of legal proceedings in the UK as "DD" and "AS".
The UK has been seeking for some years to deport a number of individuals whom it alleges pose a threat to national security. It has acknowledged that these individuals could not ordinarily be deported, because of the real risk of grave human rights violations that they would face in the countries to which they are to be returned.
The UK government has therefore sought, in each of these cases, so-called ‘diplomatic assurances’ from the countries to which these individuals are to be returned that the individual will be treated in accordance with international human rights standards. These promises are unenforceable in any court of law.
Amnesty International has long argued that the UK government's policy of "deportation with assurances" undermines the absolute prohibition of torture. In particular, the policy is not compatible with the obligation, under international law, not to send individuals to countries where they face a real risk of grave human rights violations, including torture or other ill-treatment.
In both of today's cases, although on different grounds, the Court of Appeal ruled that the UK could not lawfully proceed with the deportations.
In the cases of "DD" and "AS", the Court of Appeal upheld the decision of the Special Immigration Appeals Commission (SIAC), the court of first instance in these cases, that the assurances obtained from Libya by the UK in the form of a "Memorandum of Understanding" were not sufficient to protect them from a real risk of torture or other ill-treatment if they were to be returned to Libya and that they could not, therefore, be deported.
The Court of Appeal ruled, in Abu Qatada’s case, that the SIAC was entitled to find that so-called diplomatic assurances can sometimes be relied on to protect people against a real risk of very serious violations of their human rights, including the risk of being tortured and the risk of being subjected to a flagrantly unfair trial.
Amnesty International has voiced concern about this part of the decision. The organization argues that the unfair procedures the SIAC follows, which include the use of secret material in secret sessions of the court, makes it extremely hard to mount an effective challenge in the SIAC to the use of these assurances.
"If the Court of Appeal is unwilling to question the SIAC’s findings on the reliability of these assurances, there is real doubt over whether there is any genuine route open to the individuals who face deportation on the strength of such assurances to challenge their use," the organization said.
The Court of Appeal recognized, however, that the trial that Abu Qatada would face on his return to Jordan would amount to a flagrant violation of the right to a fair trial, and that the assurances given in his case offered no protection against that. The trial would be flagrantly unfair because it would very probably allow evidence that had been obtained by torture to be used against him. It therefore ruled that his deportation could not go ahead.
In the light of today’s decisions, Amnesty International has called on the UK government to abandon its dangerous and discredited policy of relying on unenforceable promises to get around its obligations not to send people to countries where they will face a real risk of grave human rights violations.