For once, the supreme court has offered protection to those facing deportation on national security grounds.
We are, unfortunately, all too familiar with the scenario where secret evidence is used against those, almost exclusively Muslims, whom the UK Border Agency (UKBA) seeks to deport for ‘reasons of national security’. But in a landmark ruling, the supreme court has recognised that there are some things appellants may need to keep secret, such as the identities of people who face reprisals for testifying about the torture practices of their own states.
In the deportation appeals of seven Algerians believed to represent a threat to national security, UKBA told the Special Immigration Appeals Commission (SIAC) that the diplomatic assurances the government had obtained from Algeria made it safe to deport the men, despite the regular use of torture by the security services and the lack of monitoring of the assurances. The men obtained evidence from inside Algeria to demonstrate that assurances would not protect them from torture – but the witnesses who provided statements needed an absolute, permanent and irrevocable guarantee that their identities would always be protected and that the information in the statements would never get back to the Algerian authorities. UKBA officials refused to give such a guarantee. So lawyers representing the seven Algerians took the evidence to SIAC and asked the court to look at it in a closed hearing, without UKBA, and to make an order binding UKBA officials and lawyers to complete confidentiality before they could see the material.
SIAC refused, and so did the Court of Appeal. For them, the right of UKBA to check the evidence by showing it to Algerian officials for rebuttal was more important than the right of the appellants to call vital evidence without putting informants’ lives and families at risk. The Home Office argued too that there might be important clues to the whereabouts of international terrorists in the information provided by appellants’ witnesses, which would have to be communicated to the authorities to avert the risk of loss of life. But the supreme court rejected the Home Office scenario and reversed the lower courts’ ruling, saying that SIAC had the power to bind UKBA to complete confidentiality and should use it when otherwise, it would have to decide on the safety of a torturing state without crucial witnesses’ testimony.
This does not mean that the men have won their deportation appeals (as some media, including the Independent, wrongly reported). But it does mean that they have a marginally better chance of winning them. They already have one hand tied behind their backs, in being left in the dark about the detail of the allegations against them and so unable to rebut them, to show that officials’ suspicions about their conduct and associations are unfounded. The other hand has now been partially freed, in giving them a chance of adducing vital evidence about their likely safety on return.
For the supreme court judgment to mean anything in practice, though, the SIAC judges will have to overcome their entrenched refusal to believe that our government or its friends in the Middle East lie, cheat and cover up appalling crimes. When, back in 2005, the Algerian government refused to allow independent monitoring of its assurances of no ill-treatment to deportees from the UK, SIAC judges were very understanding: its refusal was motivated not by dirty secrets but by post-colonial sensitivity. The judges added that Amnesty International and local human rights lawyers would soon raise the alarm. But when Amnesty did just that, reporting its concerns that two men returned to Algeria were detained incommunicado and ill-treated in breach of the assurances, SIAC dismissed the evidence. Even when the men themselves confirmed their ill-treatment, SIAC maintained its disbelief. With SIAC setting its face against the possibility of official mendacity, much preferring to believe that the victims are liars, Home Office lawyers will not have much difficulty in marginalising the evidence of confidential witnesses – whether suspected terrorists in custody, former detainees, human rights lawyers or journalists or whistle-blowing officials of the regime – as unchecked, uncheckable and unreliable. Meanwhile the Algerians slated for national security deportation continue to wait, in detention or under house-arrest style bail conditions; a wait that in some cases approaches a decade.
Read an IRR News Story: ‘Return of Algerian refugees’
Read an IRR News Story: ‘Indefinite detention of four Algerian men unlawful‘