RB (Algeria) (FC) and another (Appellants) v Secretary of State for the Home Department OO (Jordan) (Original Respondent and Cross-appellant) v Secretary of State for the Home Department (Original Appellant and Cross-respondent)

An appeal from the Special Immigration Appeals Commission limited to a question of law does not permit a general reassessment of whether established facts disclose a real risk of prohibited treatment. Intervention remains available for legal misdirection, disregard of relevant matters or a conclusion that no reasonable tribunal could reach.

Assurances from a receiving state may remove an otherwise real risk under article 3. Their reliability is determined from all the circumstances. Neither elimination of every risk nor external monitoring is invariably required.

Closed material may be used when deciding safety on return where the statutory procedure, including special advocates and disclosure of substantive assurances, provides a fair and effective remedy. In a foreign article 6 case, the prospective unfairness must fundamentally destroy the right to a fair trial; a risk that evidence obtained by torture may be admitted does not automatically satisfy that threshold.

The Secretary of State sought to deport RB and U to Algeria, and OO, also known as Abu Qatada or Mr Othman, to Jordan, on national-security grounds. Each alleged that removal would expose him to treatment contrary to article 3 of the European Convention on Human Rights. Mr Othman additionally relied on articles 5 and 6 and the Convention relating to the Status of Refugees.

SIAC dismissed all three appeals after using open and closed material. The Court of Appeal dismissed RB and U's relevant challenges in [2007] EWCA Civ 808, reported at [2008] QB 533. It held that SIAC's assessment of the assurances from Algeria was factual. In Mr Othman's case, the Court of Appeal allowed his appeal solely on the ground that a real risk of evidence obtained by torture being used at his Jordanian retrial would produce a flagrant denial of justice: [2008] EWCA Civ 290; [2008] 3 WLR 798.

The House considered the scope of an appeal on a question of law, SIAC's use of closed material, reliance on assurances, and the thresholds governing foreign claims under articles 5 and 6.

1. Disposition. The House dismissed RB and U's appeals, allowed the Secretary of State's appeal concerning Mr Othman, dismissed Mr Othman's cross-appeal and restored SIAC's determinations.

2. Appellate jurisdiction. Lord Phillips, Lord Hoffmann and Lord Hope held that section 7 of the Special Immigration Appeals Commission Act 1997 deliberately confines an appeal to a question of law. SIAC determines the primary facts and whether they satisfy the applicable Convention threshold. An appellate court may intervene for legal misdirection, reliance on irrelevant matters, failure to consider relevant matters, irrationality, or a conclusion which no reasonable tribunal properly directed could reach. It cannot conduct a general merits reassessment merely because a Convention right is involved.

3. Closed material. All three reasoned speeches concluded that Rule 4 of the Special Immigration Appeals Commission (Procedure) Rules 2003 was within the rule-making power and that SIAC's procedure was fair. Substantive assurances had to be disclosed openly. A deportee would ordinarily know the personal circumstances said to create danger and would therefore be less dependent on access to closed material than a person answering undisclosed allegations in control-order proceedings. The special advocate and disclosure procedures struck a lawful balance. Lord Phillips considered that a civil standard of procedural fairness was appropriate; Lord Hoffmann and Lord Hope concluded that article 6 did not govern deportation proceedings. This difference did not affect the result.

4. Assurances and article 3. The reliability of assurances was a question of fact requiring rigorous scrutiny. Assurances from a state with a poor human-rights record must be treated sceptically, but no rule renders them inherently incapable of reliance. The question is whether, considering their practical operation and every relevant circumstance, substantial grounds remain for believing that the individual faces a real risk of prohibited treatment. External monitoring is one possible method of verification, not an invariable legal requirement. SIAC's conclusions concerning Algeria and Jordan were open to it and were not irrational.

5. Mr Othman's cross-appeal. SIAC's finding that he was unlikely to be detained for 50 days before charge defeated his article 5 case. Lord Phillips additionally considered that such a period fell far short of a flagrant breach in a foreign case. Lord Phillips and Lord Hoffmann also concluded that article 1F(c) of the Convention relating to the Status of Refugees was not confined to conduct before refugee status, although the point was academic because article 33(2) independently applied.

6. Article 6. Lord Phillips and Lord Hoffmann held that the Court of Appeal had imposed an unjustified requirement for a high degree of assurance that evidence obtained by torture would not be admitted. The governing inquiry was whether there was a real risk that the foreign trial's defects would fundamentally destroy its fairness. Jordanian law prohibited involuntary evidence but placed the burden on the defendant for statements to a prosecutor. SIAC was entitled to conclude, after examining the proceedings as a whole, that neither that rule nor the military court's lack of institutional independence established a flagrant denial of justice.

1. House of Lords: In RB (Algeria) and another v Secretary of State for the Home Department; OO (Jordan) v Secretary of State for the Home Department [2009] UKHL 10, the House dismissed RB and U's appeals, allowed the Secretary of State's appeal, dismissed OO's cross-appeal and restored SIAC's determinations.
2. Court of Appeal—OO: In [2008] EWCA Civ 290, reported at [2008] 3 WLR 798, the court allowed Mr Othman's appeal solely under article 6 because of the possible use of evidence obtained by torture. The House reversed that decision.
3. Court of Appeal—RB and U: In [2007] EWCA Civ 808, reported at [2008] QB 533, the court quashed and remitted SIAC's determinations on closed grounds but rejected the material open challenges concerning closed evidence, assurances and appellate jurisdiction. SIAC rejected the remitted appeals.
4. Special Immigration Appeals Commission: SIAC dismissed each appeal against deportation. It found that the individual assurances and surrounding circumstances removed any real risk of treatment contrary to article 3, and that Mr Othman's prospective detention and retrial did not meet the foreign-case thresholds under articles 5 and 6.