J1 v Secretary of State for the Home Department

A tribunal deciding an asylum or human rights appeal must determine every material element of the claim on the current evidence. It may consider an undertaking or assurance from the Secretary of State, but the undertaking cannot reduce the claimant’s legal protection or transfer a judicial question to the executive.

Where effective monitoring is necessary to make diplomatic assurances capable of protecting a deportee from treatment contrary to article 3 of the European Convention on Human Rights, the tribunal must itself decide whether that monitoring is effective. It cannot uphold removal on the premise that the necessary capacity may arise later, leaving the Secretary of State’s assessment reviewable only by judicial review.

The Secretary of State decided to deport an Ethiopian national on national security grounds. SIAC found that, without diplomatic assurances, his detention and interrogation in Ethiopia would expose him to a real risk of treatment contrary to article 3 of the European Convention on Human Rights.

SIAC nevertheless dismissed his appeal. It accepted the assurances and anticipated that the Ethiopian Human Rights Commission would acquire sufficient capacity to monitor breaches by junior officials before removal. The Secretary of State undertook to give advance notice of removal, permitting a fresh claim or judicial review if the arrangements remained inadequate.

The central issue was whether SIAC could uphold deportation while leaving the future adequacy of this material safeguard to the Secretary of State. Further grounds concerned a possible flagrant denial of a fair trial and the fairness of SIAC’s closed procedure.

1. Appeal allowed on the article 3 ground. SIAC’s decision dismissing the appeal was reversed. The second and third grounds were dismissed (per Jackson LJ, Elias LJ and Treacy LJ).
2. A court or tribunal must determine an asylum or human rights claim on the evidence existing when it decides the case. It may consider relevant assurances and undertakings from the Secretary of State. Those assurances cannot reduce the protection to which the claimant is entitled, nor permit delegation of a material part of the statutory appeal to the executive.
3. SIAC had found that effective monitoring was necessary because of Ethiopia’s human rights record. Whether the Ethiopian Human Rights Commission could monitor unauthorised breaches by junior officials was therefore a material question for SIAC. The evidence showed that it was not then competent to do so. SIAC could not assume that competence would later be achieved and leave the operative assessment to the Secretary of State or embassy officials.
4. Judicial review was not an adequate substitute for the statutory appeal. It would provide a different level of scrutiny and, under the law then applicable, no closed hearing or special-advocate procedure. SIAC’s approach therefore prejudiced the appellant and impermissibly allowed the undertaking to cut down his legal protection. It should have held that deportation would breach article 3 of the European Convention on Human Rights.
5. The separate article 3 challenge concerning conditions following conviction was rejected. SIAC’s assessment that the Ethiopian Government would comply with its assurances about imprisonment was not shown to be erroneous.
6. The article 6 ground was dismissed. The test for a flagrant denial of justice was stringent, and SIAC was entitled to find that Ethiopia would comply with the fair-trial assurance.
7. The procedural-fairness grounds were also dismissed. Rule 44(5A) of the Special Immigration Appeals Commission (Procedure) Rules 2003 was subject to rule 4’s protection of national security and the public interest. Given the insecure video link, the witness’s lack of security clearance and the alternative procedure offered, preventing closed cross-examination was not unfair. The weight given to the evidence was for SIAC.

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 279, allowed the appeal on the article 3 ground and reversed SIAC’s dismissal of the appeal. It dismissed the remaining grounds.
2. Special Immigration Appeals Commission: Upheld the national-security basis for deportation and subsequently dismissed the human rights appeal. It held that the diplomatic assurances would protect the appellant, although further work on monitoring remained outstanding.