The applicant was considered to pose risks to national security in the United Kingdom. He claimed that his right to be free from torture, inhuman and degrading treatment and punishment under both the ECHR and the Human Rights Act 1998 would be violated by the deportation as he faced a substantial risk of such treatment on return to Libya, and that the memorandum of understanding provided was not sufficient to discharge the United Kingdomâ€™s positive obligations under Article 3, ECHR (on which see, esp., Soering and Chahal).
Drawing very heavily on the European Court of Human Rightâ€™s recent decision in Saadi v Italy (previously discussed on the CCJHR blog here), the Court of Appeal held that the test to be applied when considering whether deportation would constitute a human rights violation was as laid down in Saadi as follows:
Furthermore, the Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill-treatment … in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof (see paragraphs 128 and 132 above) before indicating an interim measure under Rule 39 or finding that the enforcement of removal from the territory would be contrary to Article 3 of the Convention. As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion. (paragraph 142)
In this respect the Court of Appeal held that the sufficiency of any memorandum must be decided on a case-by-case basis (paragraph 75). Although the Court did not, perhaps, articulate the principles of assessing the sufficiency of particular memoranda of understanding as clearly as it might have done, it did clearly state that in assessing whether Article 3 is satisfied it is important to consider the reality on the ground in the receiving country and the extent to which â€“ taking into account the unpredictability of the future â€“ it is likely that treatment violating Article 3 might take place notwithstanding the memorandum of understanding.
Whether this decision will be appealed to the House of Lords remains to be seen, but as the judgment is substantively based on Saadi it seems unlikely that the Law Lords would reverse. In essence, then, the judgment outlines three principles:
The protections of Article 3, ECHR are absolute and remain absolute notwithstanding the alleged misbehaviour/terrorist status/national security risk posed by the individual(s) concerned;
In assessing whether deportation would constitute a violation of Article 3 a Court must consider whether there is â€œa real risk of ill-treatmentâ€, taking into account all of the evidence before it and the necessarily speculative nature of the exercise;
A Memorandum of Understanding/diplomatic assurance can, in principle, be sufficient to ensure compliance with Article 3, but the mere existence of such a memorandum is not sufficient in and of itself. Rather, the court must be satisfied that the situation in the proposed receiving state is such that the memorandum will be effective in protecting the individual from behaviour that violates Article 3.