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Deportation with Assurances DEPORTATION WITH ASSURANCES by DAVID ANDERSON Q.C. Independent Reviewer of Terrorism Legislation (2011-2017) with CLIVE WALKER Q.C. Professor Emeritus of Criminal Justice Studies, University of Leeds JULY 2017 Cm 9462 Deportation with Assurances by DAVID ANDERSON Q.C. Independent Reviewer of Terrorism Legislation (2011-2017) with CLIVE WALKER Q.C. Professor Emeritus of Criminal Justice Studies, University of Leeds Presented to Parliament by the Secretary of State for the Home Department by Command of Her Majesty July 2017 Cm 9462 © Crown copyright 2017 This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3 or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: [email protected]. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This publication is available at www.gov.uk/government/publications Any enquiries regarding this publication should be sent to David Anderson Q.C. at [email protected] or at Brick Court Chambers, 7-8 Essex Street, London WC2R 3LD. Print ISBN 9781474143851 Web ISBN 9781474143868 ID 19041711 04/17 Printed on paper containing 75% recycled fibre content minimum Printed in the UK by the Williams Lea Group on behalf of the Controller of Her Majesty’s Stationery Office CONTENTS PART I DEPORTATION WITH ASSURANCES IN THE UK (David Anderson Q.C.) page EXECUTIVE SUMMARY 2 1. INTRODUCTION TO PART I 5 2. UK EXPERIENCE 11 3. ANSWERS TO THE QUESTIONS UNDER REVIEW 28 PART II INTERNATIONAL AND COMPARATIVE LAW AND PRACTICE (Professor Clive Walker Q.C.) 4. INTRODUCTION TO PART II 50 5. INTERNATIONAL LAW 56 6. COMPARATIVE SURVEY 92 7. CONCLUSIONS TO PART II 115 1 EXECUTIVE SUMMARY PLAN OF THE REPORT • Part I of this Report (chapters 1-3), prepared by David Anderson QC, summarises the evolution and operation of DWA in the United Kingdom, assesses its utility and answers the specific questions in the Review’s terms of reference. • Part II (chapters 4-7), prepared by Professor Walker QC, gives a detailed account of the international legal position, together with a comparative survey focusing on Australia, Canada, Israel, New Zealand, the USA, France, Germany, Italy, the Netherlands and Denmark. LEGITIMACY AND UTILITY OF DWA • Expectations for the policy of DWA have substantially diminished since the commissioning of this Review was first discussed in Government, for both geopolitical and legal reasons. There are currently no live DWA cases. • DWA remains potentially capable of playing a significant role in counter- terrorism, especially in prominent and otherwise intractable cases which are worth the cost and effort. But as the UK experience amply demonstrates, it can be delivered effectively and legitimately only if laborious care is taken. ANSWERS TO QUESTIONS IN TERMS OF REFERENCE (see 1.12) Question 1 The UK has taken the lead in developing rights-compliant procedures for DWA. It has little to learn either from modes that are available only to states not signatory to the ECHR, or that are practiced by signatory states in violation of its requirements. 2 Question 2 Some DWA proceedings have been of inordinate length: but delays are inherent in any closed material procedure, and future cases are likely to take less time now that the central legal principles have been established by the highest courts. No suggestions were put to me that would save time without sacrificing the fairness of proceedings. Question 3 The effect of domestic and international court rulings on the exercise of DWA is considered in chapters 2 and 5. For as long as it remains party to the ECHR, and for as long as it has not sought to derogate from its obligations under (for example) Articles 5 and 6, the provisions of the ECHR will remain binding on the Government in international law. Question 4 The key consideration to be taken into account in developing safety on return processes is whether compliance with assurances can be objectively verified through diplomatic or other monitoring mechanisms. Questions 5 and 6 It is not necessary for DWA arrangements to be “one size fits all”: they can be tailored to particular categories of deportee, or to particular outcomes that are likely to await them in the receiving state. The balance of advantage in negotiating bespoke or all-purpose solutions will depend on all the circumstances, as will the question of whether to identify problem areas and seek to address them with the receiving state at the earliest opportunity. 3 PART I DEPORTATION WITH ASSURANCES IN THE UK DAVID ANDERSON Q.C. 4 1. INTRODUCTION TO PART 1 Deportation with assurances 1.1. The policy of deportation with assurances [DWA] aims to facilitate the deportation to certain receiving states of foreign nationals suspected of terrorism. 1.2. Under a number of international Conventions, including in particular the UN Convention against Torture and the European Convention on Human Rights [ECHR], deportation may not be carried out if there is a real risk that the deportee would be subject to torture, ill-treatment or certain other breaches of their human rights in the country of destination. The objective of DWA is to obtain assurances from the government of the receiving state which are sufficiently credible to allow deportation to take place without infringing the human rights of the deportee or the obligations of the state under international law. 1.3. The UK is the country in which the most determined efforts have been made to devise and apply a rights-compliant policy of DWA. Between 2005 and 2011, the Labour and Coalition Governments negotiated generic assurances from six countries: Jordan, Libya, Lebanon, Algeria, Ethiopia and Morocco. By 2011, nine people had been deported in accordance with these arrangements, in each case to Algeria. Since then there have been two further deportations with assurances, to Jordan in 2012 and 2013. A further person was subject to administrative removal to Morocco, with assurances in 2013. 1.4. Though now endorsed in principle by the European Court of Human Rights [ECtHR],1 the policy of DWA has been vigorously attacked from all sides. Thus: (a) Human rights advocates and UN rapporteurs have consistently opposed the notion of doing deals with torturers. (b) Yet politicians and mass media, in the UK and to a lesser extent in other countries,2 have strongly criticised the strict conditions imposed by the ECtHR on the deportation of foreign national terrorists, portraying them as a needless restriction on national sovereignty. 1.5. Attempts to deport under the policy have been incessantly litigated, and the Government has suffered a number of reverses in the courts. These include the determination of both the Special Immigration Appeals Commission [SIAC] and the English Court of Appeal that assurances obtained from Colonel Gaddafi’s 1 Application 8139/09 Othman (Abu Qatada) v United Kingdom, ECtHR 17 January 2012. 2 In February 2015, a group of French MPs relied upon Othman and other cases as a reason to end the right of individual petition to the ECtHR: http://www.assemblee-nationale.fr/14/pdf/propositions/pion2601.pdf. 5 Libya were insufficient3 and, most recently, a similar ruling in relation to Algeria from SIAC.4 1.6. Legal issues with similarities to those arising under DWA crop up in the extradition context5 and in a range of other more or less analogous circumstances, some of which are touched upon in Part II of this report but which do not form part of the subject matter of this review. Cases in which it is necessary to consider the safety of a person being transferred elsewhere range from routine country guidance determinations6 to the transfer of a prisoner of war to the custody of an allied state. Context of this review 1.7. The Coalition Government elected in 2010 published a Review of Counter- Terrorism and Security Powers in January 2011.7 In its section on DWA,8 that review: (a) backed DWA and examined the scope for extending it to more countries, “notably those whose nationals have engaged in terrorism-related activity here”; (b) recognised the central role of the courts, both in the UK and the ECtHR, which were said (correctly) to deliver “intense, detailed scrutiny of our case for deportation”; (c) considered how the Government might be able to improve the case on safety on return [SOR] that it needed to make to the courts, whether by making better use of available expertise or by improved oversight and follow-up mechanisms in the country of deportation; and (d) looked at whether the policy could be better communicated, including to NGOs, and whether best practice could be shared with other countries. 1.8. Among other recommendations, the review proposed – somewhat tentatively – that the Government “consider commissioning an annual independent report into deportations under this policy”. 3 AS and DD (Libya) v Secretary of State for the Home Department [2008] EWCA Civ 289, [2008] HRLR 28. 4 BB,PP,W.U,Y and Z v Secretary of State for the Home Department, Appeal Nos. SC/39/2005 &c.,18 April 2016. The Home Secretary has not appealed the ruling. 5 In respect of which similar factors apply: see, e.g., Application no. 24027/07 and others Babar Ahmed and others v United Kingdom, 10 April 2012, para 168. 6 For a list, see https://www.judiciary.gov.uk/wp-content/uploads/2011/03/cg-list-last-updated-23-01-17.pdf. 7 Cm 8004. The Review was led by the Office of Security and Counter-Terrorism in the Home Office, and subject to the independent oversight of the former Director of Public Prosecutions, Lord Macdonald of River Glaven QC.
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