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Abu Qatada court of appeal ruling: time for UK to abandon deportation with assurances


As the Court of Appeal today ruled that the UK could not lawfully proceed with the deportations of Abu Qatada and two Libyans, ‘DD’ and ‘AS’, Amnesty International called on the UK government to abandon its dangerous and discredited policy of ‘deportation with assurances’.

Amnesty has long argued that ‘diplomatic assurances’ and ‘memoranda of understanding’ are unenforceable and are little more than an attempt to get round the UK’s obligations under international law, not to send people to countries where they will face a real risk of grave human rights violations. They are only sought from countries which are known to use torture in defiance of international law.

Amnesty International Campaigns Director Tim Hancock said:

“This is a welcome ruling. Everyone has a right to a fair trial and if Abu Qatada is suspected of wrongdoing he should be fairly tried – not shipped off to Jordan to be sentenced on the basis of evidence that was tortured out of someone.

“The government should abandon its attempts to get round the global ban on torture using ‘assurances’ and play within the rules. The promises of known ‘torture states’ like Libya and Jordan - many of whom deny using torture even when it is widely documented - are not worth the paper they are written on.

“Both terror and torture are abominable. The UK Government must do its utmost to protect the public from the threat of terrorism, but going soft on torture is not the answer. Britain should remain firmly opposed to both of these vile practices.”

Amnesty International has documented the persistent use of torture in Jordan, including beatings, falaqa (repeated beating to soles of the feet with a stick), burning people with cigarettes, threats of extreme violence including rape, and sleep deprivation

The Court of Appeal recognised that the trial which Abu Qatada would face on his return to Jordan – a trial which would very probably allow evidence which had been obtained by torture to be used against him – would amount to a flagrant violation of the right to a fair trial. Amnesty International welcomed this recognition, but considered that it should not have been necessary for the UK government to be told this. As recently as 2005, the Law Lords reiterated the absolute abhorrence with which the courts in the UK regarded ‘torture evidence’. Amnesty considers that the UK should not have even been contemplating returning anyone to face a trial where a conviction was likely to follow on the strength of information obtained by torture.

In the cases of DD and AS, the Court of Appeal found no grounds to disagree with the decision of the Special Immigration Appeals Commission (SIAC) that the assurances which had been obtained by the UK from Libya, in the form of a ‘Memorandum of Understanding’, were not sufficient to protect DD and AS from a real risk of torture or other ill-treatment if they were to be returned to Libya. Amnesty International welcomed this recognition of the real risk to which these men would undoubtedly be exposed if they were to be returned to Libya.

Disappointingly, the Court of Appeal ruled, in Abu Qatada’s case, that the SIAC was entitled to find that so-called diplomatic assurances can sometimes be relied on to protect people against a real risk of very serious violations of their human rights – including the risk of being tortured, and the risk of being subjected to a flagrantly unfair trial.

The Court of Appeal found that it was “a matter for SIAC’s judgement whether assurances can be relied on in any given case”. Amnesty International is concerned by this approach. SIAC’s unfair procedures, including the use of secret material undisclosed to the person facing deportation or to their lawyers, and the holding of secret sessions of the court, makes it extremely hard to mount an effective challenge in the SIAC to assertions that an individual can safely be deported, on the strength of diplomatic assurances, to a country where they would otherwise be at real risk of grave human rights violations. If the Court of Appeal is unwilling to question the SIAC’s findings on the reliability of these assurances, then there is real doubt over whether there is any genuine route open to these men to challenge their use.

Amnesty International considers that the obligation which all states are under is clear: not to send anyone to any country where there is a real risk that they will be subjected to grave human rights violations, including torture or other ill-treatment. This is a basic principle underpinning the international protection of human rights, and was recently re-affirmed by the European Court of Human Rights in the case of Saadi v Italy. It applies no matter what that individual is alleged to have done, or – as in these cases – what threat they are alleged to pose to national security. Rather than weakening this protection, the UK should be respecting it, and encouraging all states to bring their laws and practices into line with international human rights standards.

Respect for the absolute prohibition against torture does not prevent states from taking action against people who are suspected of posing a threat to national security. If there is sufficient admissible evidence that the individuals whom the UK is seeking to deport have been involved, as is alleged, in ‘terrorism-related’ activity, then they should be charged with criminal offences and given a fair trial in the UK. What is not acceptable is to use the suspicion, sometimes on undisclosed grounds, of involvement in such activities to justify exposing people to a real risk of grave human rights violations.

An Amnesty International delegate observed the open (i.e. public) part of the Court of Appeal hearing in March 2008 in the case of Abu Qatada, and part of the open hearing in the cases of DD and AS which immediately preceded it. Both cases also involved closed, i.e. secret hearings, from which not only the public but the lawyers representing the individuals involved were excluded.

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