AS & DD (Libya) v Secretary of State for the Home Department & Anor

Removal is prohibited where substantial grounds, founded on evidence, show a real risk of treatment contrary to article 3 of the European Convention on Human Rights. A real risk is more than a mere possibility but need not be more likely than not. The person's dangerousness cannot be balanced against that risk.

Diplomatic assurances require rigorous examination in their practical context. The tribunal must decide whether they sufficiently protect the individual, considering the receiving state's conduct, political conditions, enforcement mechanisms and monitoring arrangements. Government expertise deserves weight according to its experience and cogency, but receives no deference on the ultimate assessment of article 3 risk.

The Secretary of State decided to deport two Libyan nationals as dangers to national security. The Special Immigration Appeals Commission found that both posed threats but allowed their appeals because substantial grounds showed a real risk of torture or other treatment contrary to article 3 of the European Convention on Human Rights if they returned to Libya.

The Secretary of State accepted that such a risk existed without a memorandum of understanding under which Libya promised proper treatment. SIAC nevertheless found that the assurances, associated diplomatic pressure and monitoring by the Qadhafi Development Foundation did not reduce the risk sufficiently. Permission to appeal was refused by Mitting J but granted by Hallett LJ.

The central questions were whether SIAC had applied the correct real-risk test, had given proper weight to Foreign and Commonwealth Office evidence, and had reached a conclusion legally open to it.

1. The Secretary of State's appeal was dismissed. An appeal from SIAC lay only on a point of law. As SIAC was a specialist fact-finding tribunal, its judgment had to be read as a whole and respected unless it was quite clear that it had misdirected itself in law. The challenged issues were issues of fact rather than law.

2. The article 3 test was whether substantial grounds had been shown for believing that removal would expose the individuals to a real risk of prohibited treatment. “Substantial grounds” required a proper evidential basis. A real risk was more than a mere possibility but less than proof on the balance of probabilities. The test was rigorous and required close scrutiny, but neither the individual's dangerousness nor national-security considerations could be balanced against the risk: Saadi v Italy and Chahal v United Kingdom applied.

3. SIAC's abbreviated references to “real risk” were shorthand for the complete test. The test had been common ground and SIAC had carefully examined extensive evidence. It had neither reversed the burden nor lowered the threshold because future political events were unpredictable.

4. The existence of an article 3 risk was an evaluative prediction based on evidence and was for SIAC. The evidence of an experienced diplomatic witness, including the collective view of the Foreign and Commonwealth Office, deserved weight according to its expertise, experience and cogency. SIAC owed that evidence no deference and was not bound to accept the witness's conclusion that breach of the memorandum was virtually unthinkable.

5. Diplomatic assurances did not end the inquiry. SIAC had to determine whether, in practical application and in the circumstances at the material time, they sufficiently guaranteed protection against prohibited treatment. It was entitled to consider the Libyan regime's unpredictability, its record of grave abuses, its response to diplomatic pressure, possible interrogation and imprisonment, and the monitoring body's lack of independence and effectiveness.

6. SIAC's findings rationally supported its conclusion that the memorandum did not reduce the acknowledged risk sufficiently. The closed judgment confirmed the result reached on the open material. The article 6 issue did not arise because the article 3 decision was upheld.

1. Court of Appeal (Civil Division): The Secretary of State's appeal was dismissed by [2008] EWCA Civ 289. SIAC had applied the correct article 3 test, and its conclusion was supported by findings of fact.

2. Special Immigration Appeals Commission: SIAC allowed both appeals against deportation. It found substantial grounds for believing that return to Libya would expose the appellants to a real risk of treatment contrary to article 3 despite the diplomatic assurances.

3. Permission: Mitting J refused the Secretary of State permission to appeal, regarding the issues as factual. Hallett LJ subsequently granted permission.