OO (Jordan) v Secretary of State for the Home Department
RB (Algeria) v Secretary of State for the Home Department
MT (Algeria) v Secretary of State for the Home Department
U (Algeria) v Secretary of State for the Home Department

Facts:
This case concerned joined appeals against decisions of the Court of Appeal on the lawfulness of deporting the appellants (B, U and O). The Secretary of State had ordered their deportation on grounds of national security. The appellants claimed that deportation would violate their rights under Article 3 of the Convention, because there was a real risk they would be tortured by the authorities on their return. O, who was likely to be retried in Jordan for terrorist offences, also claimed that he would be deprived of his liberty by unreasonably lengthy detention pending trial. He also argued that he would not receive a fair trial, because the court that would try him would not be independent of the government and would likely use the evidence of witnesses who had been tortured.

CA Decision: The appellants’ appeals to the Special Immigration Appeals Commission (SIAC) were dismissed. The Court affirmed the Commission’s decisions under Article 3, but upheld O’s appeal on the ground that evidence obtained by torture was likely to be used against him at his trial.

In the House of Lords:
There was nothing in the Convention which prevented the UK from according only a limited right of appeal, even if the issue involved a Convention right. The Court of Appeal had no general power to review the SIAC’s conclusions that the facts it had found did not amount to a real risk of a flagrant breach of the relevant Convention rights. The SIAC’s conclusions could only be attacked on grounds of Wednesbury unreasonableness. It was also held that the use of closed material in relation to the issue of safety on return would not necessarily render the process unfair or in breach of the principles of legality.  The deportee would usually be aware of the information personal to him that bore on the question of whether he would be safe on his return. Therefore, B, U and O had not been denied a fair trial by reason of the use of closed material.

Furthermore, there was no principle that assurances must eliminate all risk of inhuman treatment before they could be relied upon. However, assurances should be treated with scepticism if they were given by a country where inhuman treatment by state agents was endemic. The issue of whether the assurances given in the instant case obviated the risk was a question of fact for the SIAC, whose conclusions could only be attacked on grounds of irrationality. It was held that the Commission’s conclusions in relation to Article 3 could not be described as irrational. Finally, it was decided that, before the deportation of an alien could violate Article 6, there must be substantial grounds for believing that there was a real risk of a fundamental breach of his right to a fair trial, and that that breach would lead to a miscarriage of justice that itself constituted a flagrant violation of his fundamental rights. The SIAC concluded that the deficiencies it had identified did not meet that exacting test. The HL agreed. There was no authority for a rule that, in the context of the application of Article 6 to a foreign trial, the risk of the use of evidence obtained by torture necessarily amounted to a flagrant denial of justice.