MS (Algeria) v Secretary of State for the Home Department

Whether diplomatic assurances provide a sufficient guarantee against treatment contrary to Article 3 is a fact-sensitive question for SIAC. No rule requires assurances to eliminate every risk or to provide independent external monitoring. The terms, good faith, objective basis for fulfilment and capacity for verification must be evaluated together. Verification may use formal or informal means. On an appeal confined to material questions of law, the Court of Appeal cannot re-try those factual assessments and may intervene only for an error of law, including irrationality. A person’s position under an assurances programme depends on how the Secretary of State and receiving authorities regard the person in light of their history, rather than merely on formal criminal or immigration status.

MS, an Algerian national, appealed from SIAC’s determination of 26 March 2010 that his removal to Algeria was lawful and would not expose him to a real risk of treatment contrary to Article 3. SIAC relied on assurances given by the Algerian Government. An earlier SIAC judgment of 14 May 2007 had found that the national security risk posed by MS was insignificant, after which his removal was pursued as that of an illegal entrant and the assurances were reaffirmed.

The appeal challenged the continued reliance on the assurances, the authority of the Algerian official who confirmed them, the absence of independent verification, and the refusal to admit fresh evidence. The central issues were whether SIAC had made an error of law and whether the later Strasbourg authorities required reconsideration of the established approach to Algerian assurances.

The appeal was dismissed. Permission to appeal was refused on the first two proposed open grounds, the third ground failed, and the unpursued grounds were stayed.

1. Scope of review. Under section 7 of the Special Immigration Appeals Commission Act 1997, an appeal from SIAC lies only on a material question of law. Whether assurances provide a sufficient guarantee against treatment contrary to Article 3 is a question of fact. The Court of Appeal could not reconsider the factual merits unless SIAC’s conclusion involved an error of law, such as irrationality. SIAC’s inference that Maitre Amara had authority to confirm the assurances was open to it on the evidence.
2. Diplomatic assurances. The assessment requires consideration of the terms of the assurances, whether they were given in good faith, whether there was a sound objective basis for believing they would be fulfilled, and whether fulfilment could be verified. Verification was essential, but independent or external monitoring was only one possible method. Formal and informal means could suffice. The Court followed the approach in RB (Algeria) v Secretary of State for the Home Department [2009] 2 WLR 512, which remained authoritative.
3. Strasbourg authorities. Saadi v Italy 24 BHRC 123 treated the sufficiency and effectiveness of assurances as questions of fact in all the circumstances. Ben Khemais v Italy (246/07) applied, but did not extend, that approach. Its conclusion that assurances were insufficient depended on the particular combination of facts and did not establish a universal requirement for independent verification.
4. Policy and status. MS was not to be treated as an ordinary failed asylum seeker merely because removal was formally pursued as an illegal entrant. His position had to be assessed by reference to how the Secretary of State and Algerian authorities regarded him in light of his history. There was no policy excluding reliance on assurances in his circumstances, and confirmation of the existing assurances was lawful. Effective assurances addressed and sufficiently eliminated the risk relevant to his Refugee Convention claim.
5. Fresh evidence. Evidence not placed before SIAC could not demonstrate an error of law in SIAC’s determination. The court also indicated that material subsequent developments would require reconsideration by the Secretary of State and could lead to a further appeal or judicial review.

1. Court of Appeal (Civil Division): Appeal from SIAC dismissed. Permission was refused on two proposed open grounds, the single viable ground failed, and the remaining unpursued grounds were stayed.
2. Special Immigration Appeals Commission: On 26 March 2010, SIAC determined that MS’s removal to Algeria was lawful and that the assurances provided sufficient protection against a real risk of Article 3 ill-treatment. SIAC had refused permission to appeal.
3. Earlier SIAC proceedings: On 14 May 2007, SIAC found that the national security risk posed by MS was insignificant and allowed his appeal against deportation on national security grounds.