Six Algerians considered “a threat to the national security of the United Kingdom” have won a new round in a legal battle that has, in three cases, lasted nearly eight years to resist deportation on human rights grounds. The Case of BB & Others v Secretary of State for the Home Department considers how far poor treatment and physical conditions (rather than torture) in foreign detention centres lacking British standards may justify a human rights bar to deportation. The issue is about “the requisite minimum level of severity needed to breach Article 3″ (of the European Convention on Human Rights on torture and inhuman treatment).
An agreement is in place between the UK and Algeria that terrorism suspects will not be tortured or mistreated on their return. However, the Court of Appeal decided that a tribunal (SIAC) that found the Algerians could be deported had failed to give full consideration to whether their potential detention and interrogation for up to 12 days by military authorities in Algeria would itself constitute “inhuman treatment” under Article 3.
The court also questioned whether there were adequate safeguards to verify whether the Algerian authorities were observing the assurances given to the the UK Government about treatment of deportees. The assurances included Algeria’s acceptance in the case of any deportee of “the right to respect, in any circumstances, for his human dignity”.
The Special Immigration Appeals Commission (SIAC) will now have to look at the case again and consider evidence that conditions at Antar barracks interrogation centre in Algiers, where the men would be held temporarily, are not acceptable.
Terrorist suspects are imprisoned at Antar incommunicado (except for one call to family) and without lawyers for up to 12 days in a system called garde à vue. They are interrogated by the military security organisation DRS (Département du Renseignement et de la Sécurité) with a view to gathering material for prosecutions. They are then either released or placed within Algeria’s civilian legal system.
An Amnesty report into the DRS in 2006 (around the time when some of the six cases commenced) said: “Although fewer … violations are reported today than during the height of the [counter-terrorist] violence of former years, [in the 1990s], people detained by the DRS are systematically held in secret detention and denied any contact with the outside world, often for prolonged periods, in conditions which facilitate torture and may in themselves constitute ill-treatment.”
A new legal code is in place in Algeria to prevent abuses and assurances have been made to the UK Home Office and the United States that abuses should not occur. However, the Court of Appeal looked at evidence of occurrences that could count as “inhuman or degrading treatment or punishment” under Art 3 of the ECHR and accepted that conditions at Antar barracks were “deplorable”.
Evidence of mistreatment
SIAC in its judgment in 2013 had accepted that “many … of the holding cells in the Antar barracks are primitive in the extreme. Most people would find the experience of being confined in such conditions disorientating and alarming. They are hardly the conditions in which a detained man can prepare himself to deal adequately with interrogation.”
It had heard evidence of abuse from a British citizen who had experienced garde á vue detention there. In 2012 the man, AB, who is deaf, had travelled to Algiers with his wife for a wedding. He had been arrested in error and subjected to interrogation about terrorism of which he knew nothing. His evidence included:
• “He was required to change into prison uniform and put into an unlit cell of which the door was locked. The cell was damp and dusty. There was no bed”. AB had to sleep on a concrete floor with only a blanket on two cloths.
• Later he was transferred to another cell: “He was allowed to go to the lavatory under escort, but not permitted to shower. He was allowed to pray, but mocked when doing so. He was well fed”.
• After three days he was told he would be released once the error was discovered. “He was then required to sign a document in Arabic, which he could not read. It was explained that there had been a misunderstanding and an apology was made to him. He was taken to a hotel and the price paid.”
Evidence, accepted by SIAC, showed, among other things, that at Antar there was incommunicado detention for up to 12 days, without access to a lawyer or any visits (apart from a single fifteen minute telephone call to family); captors not telling AB that he was under arrest and not disclosing their real names, giving rise to feeling of fear and inferiority; solitary confinement; detention in a dark cell, with no light – in AB’s words: “when they locked me in there I didn’t know what was happening or where I was. It was a horrifying feeling to be in that place not knowing if it was night or day”; the cell infested with mosquitoes – AB’s wife noticed that he was “bitten all over with mosquito bites”; mockery and humiliation by the guards, including being “heavily mocked” while praying; intimidating and intensive repeated interrogation by groups of men.
It was accepted by the Home Office that this treatment was degrading. The legal issue was whether such treatment constitutes evidence of human rights abuses that might be meted out to the six individuals the UK Government wishes to deport. SIAC had decided that officials in Algeria would consider “conditions of detention comparable to that experienced by AB as consistent with their human dignity” – in other words that they would not regard the conditions as a breach of the agreement with the Home Office. SIAC also decided such treatment would not breach Article 3. It said:
“AB was not threatened or struck. No pressure was put upon him to make a false confession. Questions were put, in the only way they could be put to a deaf man without a sign language interpreter, in writing. There was no attempt to deprive him of sleep by leaving the bright light on or playing loud music in his cell. When medical help finally arrived, he was prescribed appropriate medication and given an inhaler and transferred to a cell with an open door. When his interrogator realised that a mistake had been made, they arranged for his wife to visit him and told him he would be released the next day. These do not seem to be the actions of interrogators seeking to break down the moral resistance of a subject by unacceptable means.” (BB et al para 12)
Article 3 issue
SIAC had noted that “the Convention does not purport to be a means of requiring the contracting states to impose Convention standards on other states” (Soering v. the United Kingdom, 1989, quoted in Babar Ahmad v UK (2013) 56 EHRR 1). So “treatment which might violate Article 3 because of an act or omission of a contracting state might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case” (Babar Ahmad paragraph 176) ie to a country not signed up to the Convention.
SIAC relied on a legal test whereby an applicant fearing deportation should be able to “point to a consistent pattern of gross and systematic violation of rights under Article 3” (Munby J Batayav v SSHD (Home Office)  EWCA Civ 1489. But Sir Maurice Kay in BB et al suggested such a position had been superseded by the UK Supreme Court in R (EM (Eritrea) v SSHD  2 WLR 409, “which rejected a ‘systemic’ [sic] requirement” (“systematic” and “systemic” are both used in EM). Kay added:
“Moreover, the striking and unusual feature of the present case is the availability and unequivocal acceptance of AB’s evidence and the assumption by SIAC that the appellants would be kept in similar conditions (on the basis that DRS officers would consider that to be consistent with their human dignity).” (Para 18)
He pointed out that the “deplorable conditions” in which AB was detained (according to the SIAC judgment) “are not the result of scarcity of resources in an impoverished country. The general conditions in Algerian prisons withstand international scrutiny. Conditions in Antar barracks are, or at least seem to be, unique.”
In effect Kay is saying here that the “primitive” conditions at Antar are not because Algeria is a “primitive” country. One may draw from this that they are so bad because respect and dignity are not extended to the detainees there. Algeria is capable of operating reasonable standards elsewhere in the country, so the issue of “imposing Convention standards on other states” does not really apply. Antar does not meet Algeria’s own standards.
The intention at Antar is “the building of a case against the detainee before he is transferred to less inhospitable conditions and greater protections”. So (again to paraphrase Kay), as part of a legal process, those protections should apply to Antar as to any other part of the system seeking to ascertain the guilt or innocence of accused terrorists. SIAC failed to consider whether the regime at Antar “is part of a deliberate attempt to diminish the resistance and morale of detainees so as to render them more likely to confess, whether truthfully or not” (para 23). SIAC misdirected itself as to the requirements set out in Babar Ahmad.
On the issue of verification, proving whether the agreement with Britain on standards of treatment was observed, Kay noted that the Algerian Government had refused to accept monitoring by external bodies of the conditions of detention in Antar barracks. SIAC had noted “there is no rule of law that external monitoring is required” (Lord Hoffmann RB (Algeria) v SSHD para 193) and said the “means of verification, although largely informal, are adequate to ensure that its principal purpose is fulfilled”.
Fourteen previous deportees (under US and UK auspices) had been released from Antar or brought before a judge a prescribed by Algerian law. Also “The medical examination required by Algerian law at the end of the garde à vue detention provides some, but very far from complete, reassurance that a detainee has not been physically ill-treated”. And contact with an Algerian official, Maître Amara, “affords a formal and contemporaneous means of enquiry, both during and after detention, which, as past experience has shown, is of value, even if mistakes are sometimes made”. But for Kay this wording from SIAC “casts significant doubt on whether he can properly be treated as a factor in satisfying the requirement of verification”.
Evidence from family members that detainees are not mistreated was unreliable because of fears that their telephone conversations were monitored and the family members themselves were at risk of reprisals. Kay said:
“The picture which emerges in relation to verification is that, faced with an absence of external monitoring, which is not in itself fatal, SIAC satisfied itself as to the adequacy of verification on the basis of an accumulation of sources, some of which were not considered to constitute adequate verification in itself, but all of which, taken together, fulfilled the requirement.” (Para 42)
This position did not constitute perversity (in the legal sense) as argued by the applicants’ lawyers (Dinah Rose QC in particular). However, Kay said: “I am satisfied that SIAC erred in law by placing reliance on some sources of verification when the evidence did not permit it to do so.” For this reason SIAC’s judgment would not be quashed but would be remitted for reconsideration on verification grounds (“with the tainted sources removed”) and also to look again at the Article 3 issues in the light of AB’s evidence. Kay added:
“I say this whilst mindful of the fact that, given the importance of the case, the evidence on verification does lack some of the features which would usually be considered satisfactory and, as is apparent from what I have said in relation to Article 3, it is now common ground that the conditions in which the appellants would be held at Antar barracks are known to be deplorable.” (Para 42)
In conclusion Kay said: “The important thing is that the circumstances of all the appellants should be reconsidered on the basis of a correct understanding of what Article 3 requires and of the verification issue.”
Note: The latest appeal involved appellants referred to as U, Y, Z, PP, BB and W
MT (Algeria) v Secretary of State for the Home Department  EWCA Civ 808 (Y, U and BB – MT is Y)
RB (Algeria) v SSHD  2 AC 110 (U and BB – RB is the same person as BB).
W (Algeria) v SSHD  EWCA Civ 898 (Y, U, BB, W, Z, PP)
W (Algeria) v SSHD  UKSC 8 (Y, U, BB, W, Z, PP)
January 2013 SIAC open judgment:  UKSIAC 39/2005 (Y, U, BB, W, Z, PP)
The latest appeal was heard in July 2014 and released in January 2015
This is a useful parliamentary note on deportations and the legal principles when there is a possibility of human rights breaches: http://www.parliament.uk/briefing-papers/sn04151.pdf.
The principles were set out in Chahal v UK  ECHR 54
Thanks to Bailii.org for these materials and the main case