XX v Secretary of State for the Home Department

At the permission stage, full argument should be allowed where a proposed ground has a real prospect of success and its resolution depends on fuller examination of open, confidential and closed material. A challenge concerning unlawful detention requires distinction between evidence obtained through detention and evidence describing detention conditions. The threshold for a flagrant breach of Article 6 is high, but it is not necessarily confined to a prosecution founded on a confession obtained by torture or Article 3 ill-treatment. Where deportation depends on diplomatic assurances, the adequacy of monitoring and verification may be decisive.

XX, an Ethiopian national with indefinite leave to remain in the United Kingdom, was excluded and later made the subject of a deportation decision on national security grounds. The Special Immigration Appeals Commission dismissed his appeal on 10 September 2010, concluding that diplomatic assurances from Ethiopia sufficiently addressed the risks under Articles 3, 5 and 6.

XX sought permission to appeal. He challenged the use of evidence connected with unlawful detention, SIAC’s findings about the risk of prosecution and a flagrant breach of Article 6, its assessment of Article 3 and Article 5 risks, and its reliance on a memorandum of understanding. He also pursued an abuse of process ground and sought to adduce fresh evidence arising from the case of J1. The central issue was whether the proposed grounds had a real prospect of success.

1. Permission and disposition. The Court of Appeal granted permission on Grounds 1, 2 and 3, but refused permission on the separate abuse of process ground. The judgment concerned permission only and did not determine the substantive merits. The fresh evidence application was left open for decision at the substantive hearing.
2. Evidence connected with unlawful detention. The court considered that there were serious issues concerning the distinction between evidence obtained as a result of unlawful detention and evidence about conditions during detention. The absence of an international agreement equivalent to Article 15 of the Convention against Torture etc was an important distinguishing feature. The situation was also materially different from that in R v Horseferry Road Magistrates’ Court, ex p. Bennett [1994] 1 AC 42. Despite reservations about the argument, the issue warranted full consideration on appeal.
3. Prosecution and Article 6. Challenges to SIAC’s factual findings were difficult, as illustrated by AH (Sudan) v SSHD [2008] 1 AC 678 and MA (Somalia) v SSHD [2010] UKSC 49. However, the evidence and proposed fresh evidence raised sufficient concern about the finding that there was no real risk of prosecution. The criteria in E and R v Secretary of State for the Home Department [2004] QB 1044 were rigorous, but whether they were met was better resolved at the substantive hearing. Although the threshold for a flagrant breach of Article 6 was high, the possibility that executive interference with the judiciary and substantial difficulties in presenting a defence could create such a risk gave the ground a real prospect of success. The court referred to Brown v Government of Rwanda [2009] EWHC 770 (Admin) and [2009] EWHC 1473 (Admin).
4. Article 3, Article 5 and assurances. The Article 3 challenge was sufficiently linked to Grounds 1 and 2 to justify permission. The court noted that Article 5 had been treated before SIAC as standing together with Article 6, and doubted whether it added much to the overall argument. On the memorandum of understanding, the court left open whether effective verification was an essential requirement. SIAC’s finding that monitoring provided only a partial safeguard did not sit comfortably with its conclusion that the assurances were capable of verification. The possibility that the absence of contact would reveal a problem did not necessarily fill that gap. The challenge to reliance on the assurances therefore had a real prospect of success.
5. Richards LJ directed that the substantive appeal should be heard by three Lord or Lady Justices. Maurice Kay LJ agreed.

1. Court of Appeal (Civil Division): On a renewed application, permission to appeal was granted on Grounds 1–3 and refused on the abuse of process ground: [2011] EWCA Civ 860.
2. Special Immigration Appeals Commission: Dismissed XX’s appeal against the deportation decision on 10 September 2010: [2010] UKSIAC 61/2007.