A and Others v Secretary of State for the Home Department

The House held that the United Kingdom's designated derogation and Part 4 of the Anti-terrorism, Crime and Security Act 2001 were legally defective in key respects. The judges concluded that (i) while a public emergency threatening the life of the nation could be found after the events of 11 September 2001, any measures derogating from article 5(1) of the European Convention on Human Rights must be "strictly required by the exigencies of the situation" and subject to close judicial scrutiny for proportionality; (ii) Part 4 (in particular section 23) was disproportionate because it permitted indefinite detention without charge or trial of non-nationals who could not be deported while leaving comparable risks from nationals unaddressed; and (iii) section 23 unlawfully discriminated against non-nationals in breach of article 14 (and corresponding ICCPR obligations) because there was no adequate objective and reasonable justification for treating irremovable suspected international terrorists differently on grounds of nationality or immigration status.

The appeals arose from detention of foreign nationals certificated under section 21 of the Anti-terrorism, Crime and Security Act 2001 and detained under section 23. The Secretary of State made a designation order purporting to derogate from article 5(1) of the European Convention on Human Rights under article 15 in consequence of the terrorist attacks of 11 September 2001. The Special Immigration Appeals Commission and the Court of Appeal considered challenges to the Derogation Order and to Part 4; the Court of Appeal allowed the Home Secretary's appeal from SIAC and dismissed the appellants' cross-appeals. The appellants appealed to the House of Lords.

The key issues framed were (i) whether there existed a "public emergency threatening the life of the nation" for the purposes of article 15; (ii) whether the measures in the Derogation and in Part 4 (notably section 23) were "strictly required by the exigencies of the situation" (proportionality); and (iii) whether the detention regime was discriminatory on grounds of nationality or immigration status contrary to article 14 and related international obligations.

The House accepted that the post-11 September context could satisfy the article 15 threshold. On proportionality, however, a majority held that measures authorising indefinite detention of non-nationals who could not be deported were not strictly required: the same or comparable threat existed from nationals who remained at liberty and the legislative choice to address the risk by immigration detention was irrationally under-inclusive and thus disproportionate. On discrimination, the majority held that confining indefinite detention to non-nationals amounted to unjustified differential treatment in enjoyment of the article 5 right and so breached article 14 and related ICCPR obligations.

Remedies ordered were quashing the Designated Derogation Order and a declaration under section 4 of the Human Rights Act 1998 that section 23 of the 2001 Act is incompatible with articles 5 and 14 insofar as it permits disproportionate and discriminatory detention on grounds of nationality or immigration status.

Appeal allowed. The House accepted that a public emergency could be found, but held that the Derogation Order and section 23 of the Anti-terrorism, Crime and Security Act 2001 failed the Convention's strict necessity/proportionality test and discriminated on grounds of nationality/immigration status. The Derogation Order was quashed and a declaration of incompatibility with articles 5 and 14 was made in respect of section 23.

Appeal from the Court of Appeal (Woolf CJ, Brooke and Chadwick LJJ) ([2002] EWCA Civ 1502) which had allowed the Home Secretary's appeal against the Special Immigration Appeals Commission (SIAC) decision (SIAC judgment dated 30 July 2002; reported [2002] HRLR 1274). The House of Lords allowed the appeals and quashed the Designated Derogation Order.