BB, PP, W, U & Ors v Secretary of State for the Home Department

In an expulsion case under Article 3 of the European Convention on Human Rights and Fundamental Freedoms, the decision-maker must apply a nuanced and holistic assessment of all the circumstances. That includes the cumulative effect of detention conditions, their purpose, duration, physical and mental effects, and the detainee’s health and vulnerability. A requirement for a consistent pattern of gross and systematic violations is not necessary where reliable evidence establishes a real risk of similar treatment to the individuals concerned. Verification of diplomatic assurances need not involve external monitoring, but it must be assessed realistically and without reliance on sources that the evidence cannot support. Material legal errors require remittal where the outcome is not inevitable.

Algerian nationals whom the Special Immigration Appeals Commission had found to pose a threat to United Kingdom national security appealed against SIAC’s dismissal of their challenges to deportation. The appeals concerned the conditions of garde à vue detention at the Antar barracks, the adequacy of verification of Algerian diplomatic assurances, and reliance on closed evidence concerning DRS involvement in the assurances.

SIAC dismissed the appeals on 25 January 2013, except for G’s appeal, which is not before the court. The Court of Appeal considered whether SIAC had misdirected itself on the minimum severity required by Article 3, erred in assessing verification, or rendered the proceedings unfair by relying on unparticularised closed evidence.

Appeals allowed in part and remitted. Sir Maurice Kay, with whom Lady Justice Rafferty and Lord Justice Aikens agreed, allowed the appeals on the Article 3 and verification issues, but rejected the closed-evidence ground. The cases were remitted to SIAC for rehearing and redetermination.

1. Article 3 approach. SIAC had relied on the differential approach in Babar Ahmad v United Kingdom and on the gross-and-systematic-violation formulation in Batayav v Secretary of State for the Home Department. The Court held that SIAC had failed to apply the full, nuanced and holistic approach required by (2013) 56 EHRR 1, particularly in light of the accepted evidence of AB’s detention and SIAC’s assumption that the appellants might face similar conditions.
2. The assessment required consideration of the cumulative effects of detention conditions and the specific allegations, together with duration, physical and mental effects, health, vulnerability, purpose and the manner in which the regime operated. Absence of violence, threats or direct pressure was not a prerequisite to an Article 3 violation.
3. The court considered that the Supreme Court’s rejection of a systemic requirement in R (EM (Eritrea)) v Secretary of State for the Home Department made the gross-and-systematic-violation test difficult to reconcile with current authority. It did not determine that Article 3 had necessarily been violated, leaving the assessment to SIAC on proper self-direction.
4. Verification. External monitoring was not legally indispensable. However, no reasonable decision-maker could derive assurance from the medical examinations on the accepted evidence. The value of Maître Amara’s role was materially weakened by his lack of institutional independence and the documented mistake concerning a detainee’s whereabouts. The evidence also required SIAC to confront the objective risk that monitored telephone calls would inhibit family members from reporting mistreatment.
5. These errors affected part of SIAC’s cumulative verification assessment, but other sources remained. The issue therefore had to be reconsidered by SIAC rather than producing an inevitable conclusion that deportation decisions must be quashed.
6. Closed evidence. The substantive assurances were in the open evidence. The undisclosed evidence about the involvement and support of foreign officials did not materially disadvantage the appellants, particularly in light of the open agreement that no separate or distinct assurances were relied upon. The third ground was unsustainable.
7. The individual challenges of W, Y and Z disclosed no separate basis for interference once the generic Article 3 and verification issues were addressed.

1. Court of Appeal (Civil Division) allowed the present appeals on the Article 3 and verification issues, rejected the closed-evidence ground, and remitted the cases to SIAC for rehearing and redetermination.
2. Supreme Court allowed the further appeals in W (Algeria) v Secretary of State for the Home Department, [2012] UKSC 8, and remitted the cases to SIAC.
3. House of Lords dismissed the appeals of U and BB in RB (Algeria) v Secretary of State for the Home Department, [2010] 2 AC 110.
4. Court of Appeal dismissed the consolidated appeals in W (Algeria) v Secretary of State for the Home Department, [2010] EWCA Civ 898, but had earlier allowed appeals by Y, U and BB and remitted their cases in MT (Algeria) v Secretary of State for the Home Department, [2007] EWCA Civ 808.
5. Special Immigration Appeals Commission dismissed the original and remitted appeals in successive decisions, and on 25 January 2013 dismissed the appeals before this court except for G.