MT (Algeria) & Ors v Secretary of State for the Home Department

On an appeal from the Special Immigration Appeals Commission limited to a question of law, the likelihood of treatment on return is a question of fact. Whether that treatment falls within a Convention right is a question of law. Article 3 does not itself prohibit the lawful use of closed evidence under the statutory special-advocate procedure.

Risk must receive anxious, holistic scrutiny. All relevant evidence and uncertainties must be weighed, and risks of torture and adverse prison conditions considered cumulatively. Diplomatic assurances may be relied upon where their terms prevent prohibited treatment, they are given in good faith, there is an objective basis for expecting compliance, and compliance can be verified.

Article 1F(c) of the Refugee Convention applies to qualifying acts committed before or after recognition as a refugee.

The Secretary of State decided that MT, RB and U, identified before SIAC as Y, BB and U, should be deported to Algeria on national-security grounds. SIAC dismissed their appeals, finding no substantial grounds for believing that return would expose them to a real risk of treatment contrary to articles 3 or 6 of the Convention.

The appellants challenged SIAC's use of closed evidence and aspects of its risk assessments. Y also challenged SIAC's reliance on article 9 of the Algerian Ordonnance and its conclusion that article 1F(c) of the Refugee Convention applied to post-recognition conduct. BB and U challenged SIAC's treatment of diplomatic assurances, prison conditions and the risk of a flagrantly unfair trial. The appeals also raised the scope of an appeal confined to a question of law.

1. Disposition. Each case was remitted to SIAC. Y's appeal was allowed because SIAC had relied upon article 9 of the Algerian Ordonnance without an adequate evidential basis. U's appeal was allowed because closed evidence was capable of undermining SIAC's open conclusion and the closed judgment did not adequately address salient points. BB's case was remitted for reasons contained in the closed judgment and on a point concerning the form of SIAC's reasoning.
2. The statutory scheme expressly authorised SIAC to use closed material and special advocates. Article 3 required rigorous scrutiny but did not require the appellant to see every item of evidence. Parliament had squarely confronted the effect of the closed procedure, so the principle of legality did not justify reading down or otherwise displacing the scheme. SIAC nevertheless had to control the closed process rigorously and apply anxious scrutiny to all material.
3. SIAC's unsupported reliance on article 9 of the Ordonnance was procedurally unfair. Safety depended not merely on the wording of foreign law but on what Algerian authorities were likely to do. The relevant information was largely in governmental hands. Deciding that issue without evidence failed the anxious scrutiny required by article 3 and constituted an error of law: paras [57]-[70].
4. Article 1F(c) of the Refugee Convention contains no temporal limitation. Unlike article 1F(b), it is not confined to conduct before admission as a refugee. A person may therefore be excluded for qualifying acts committed before or after formal recognition: paras [79]-[90].
5. On an appeal restricted to a question of law, the existence of a real risk of particular treatment is a question of fact. Whether the treatment found falls within article 3 or another Convention right is a question of law. Convention obligations do not confer appellate jurisdiction to redetermine SIAC's factual assessment: paras [97]-[113].
6. Diplomatic assurances are not inherently impermissible. Their reliability is fact-sensitive. SIAC was entitled to accept the Algerian assurances because it addressed their terms, good faith, objective reliability and practical verification. Independent monitoring is relevant but not invariably essential: paras [125]-[132].
7. The proper article 3 assessment is holistic. It must consider all relevant evidence and uncertainty, giving each matter appropriate weight. Risks of deliberate ill-treatment and adverse prison conditions should be assessed cumulatively. SIAC's failure expressly to combine those risks did not affect the result on its factual findings: paras [162]-[174].
8. Removal on article 6 grounds required a real risk of a flagrant denial of justice. SIAC was entitled to find that the identified shortcomings of the Algerian criminal process, considered overall, did not establish that risk: paras [175]-[188].

1. Court of Appeal (Civil Division): In [2007] EWCA Civ 808, allowed Y's and U's appeals and remitted their cases. BB's case was also remitted for reasons including those contained in a closed judgment.
2. Special Immigration Appeals Commission: Separate constitutions dismissed the three appeals from national-security deportation decisions. The Court of Appeal indicated that, if possible, the remitted cases should be considered by the same constitution.