RB (Algeria) and U; OO (Jordan) v Secretary of State for the Home Department

This appeal concerned the lawfulness of deportation orders based on national security where there was a claimed risk of ill-treatment or unfair trial on return. Key legal principles established or applied were:

• Article 3 ECHR (absolute prohibition on torture and inhuman or degrading treatment) may be engaged by removal where there are substantial grounds for believing there is a real risk of such treatment in the receiving state (Soering; Chahal).
• Diplomatic assurances can be relevant to the article 3 inquiry but their weight depends on the factual matrix: their credibility, good faith, objective basis to believe they will be fulfilled, and the capacity for verification must be assessed; there is no rule that assurances must eliminate all risk.
• Use of closed material and special advocates under the Special Immigration Appeals Commission Act 1997 and the 2003 Rules is not automatically incompatible with Convention requirements when assessing safety on return; whether closed material renders proceedings unfair is a fact-specific question and SIAC's procedures (including Special Advocates) may satisfy the Convention.
• Appellate scope from SIAC to the Court of Appeal is limited to questions of law under s.7 of the 1997 Act; fact-findings by SIAC on risks are subject to challenge only on conventional legal grounds (illegality, irrationality, procedural error).
• Article 6 ECHR (fair trial) will bar deportation only in exceptional cases: the appellant must show a real risk of a flagrant denial of the very essence of the right and that this will lead to a serious consequent violation (for example a conviction and long sentence) — a two-limb test (flagrant procedural breach and serious substantive consequence).

The appeals arose from deportation decisions made on national security grounds in relation to three men: RB and U (Algerian nationals) and OO (Mohammed Othman/Abu Qatada, Jordanian). Each appealed to the Special Immigration Appeals Commission (SIAC); SIAC conducted closed and open hearings and issued open and closed judgments. The Court of Appeal heard further appeals: in RB & U the Court of Appeal dealt with the weight attached to Algerian assurances and jurisdictional questions; in Othman's case the Court of Appeal allowed his appeal on article 6 grounds (risk of unfair trial) while dismissing other grounds.

(i) Nature of the claims / relief sought: The appellants sought to resist deportation on Convention grounds. RB and U claimed deportation to Algeria would breach article 3. Othman claimed deportation to Jordan would breach articles 3, 5 (liberty) and 6 (fair trial), and he also challenged the Secretary of State's application of article 1F(c) of the Refugee Convention. Each sought judicial review/appeal of SIAC's determinations.

(ii) Issues framed by the court:

• Whether SIAC lawfully and fairly used closed material with special advocates when assessing safety on return;
• Whether the Court of Appeal had jurisdiction on an appeal limited to questions of law to review SIAC's factual assessments about risk;
• What legal weight may be attached to diplomatic assurances from receiving states and under what conditions assurances can be relied upon for article 3 purposes;
• Whether Othman's deportation would involve a 'flagrant denial' of article 6 rights (retrial before a military court and likely admission of evidence obtained by torture) or a flagrant breach of article 5 (extended incommunicado detention); and
• Whether article 1F(c) can apply to acts committed after admission as a refugee.

(iii) Court's reasoning and outcome (concise): The House held that SIAC's fact‑finding role and its use of closed material under the 1997 Act and the 2003 Rules were lawful and not in themselves incompatible with Convention standards in safety-on-return assessments; Rule 4 (general duty) was within the rule‑making power and not ultra vires. The Court of Appeal has jurisdiction only on questions of law under s.7; SIAC's factual conclusions about risk are reviewable on conventional legal grounds (irrationality, illegality or procedural unfairness) but not as de novo factual appeals. On assurances, the House accepted that assurances may be relied upon if, in the overall factual matrix, they remove substantial grounds for believing there is a real risk; SIAC had applied appropriate, rigorous scrutiny and its conclusions about Algeria and Jordan were not irrational. On article 6, the House emphasised a two-limb requirement before deportation will be barred: (i) a real risk of a fundamental or flagrant denial of fair-trial guarantees and (ii) a real risk that this will lead to a severe substantive consequence (e.g. long imprisonment or death). Applying that test, the House concluded SIAC was entitled to find no bar to Othman's deportation. The Refugee Convention point (1F(c)) was held capable of applying to acts after admission; SIAC was correct to treat it as potentially applicable.

The appeals were allowed in part. The House dismissed the appeals of RB and U, upholding SIAC's careful factual findings that, in the light of the assurances and context, there were no substantial grounds for believing that article 3 would be breached on return. The Secretary of State's appeal in relation to OO (Othman) was allowed and the Court of Appeal's decision on article 6 reversed: the House held that SIAC had not irrationally applied the correct high threshold for a 'flagrant denial' of article 6 rights and that reliance on assurances and the factual assessment did not make deportation unlawful. The court emphasised that SIAC's use of closed material under the 1997 Act and 2003 Rules was lawful and that appellate review from SIAC is confined to questions of law (irrationality, illegality, procedural error).

Appeals to SIAC from Secretary of State deportation decisions; final determinations by SIAC (open and closed judgments). Appeals from SIAC lay to the Court of Appeal on questions of law: RB & U and MT (Algeria) heard together before the Court of Appeal ([2007] EWCA Civ 808; reported [2008] QB 533) which quashed parts of SIAC's determinations on closed grounds remitted by Special Advocates; remitted hearings followed. Othman's appeal was heard in the Court of Appeal ([2008] EWCA Civ 290; [2008] 3 WLR 798), which allowed his appeal on the ground that deportation would breach article 6. The House of Lords (this appeal) determined the legal issues and restored or varied SIAC's determinations as summarised above.