The High Court’s acknowledgement that control orders based on secret evidence are unlawful, and the possibility of compensation for those affected, doesn’t help those facing deportation on the basis of secret evidence.
On 18 January 2010, a High Court judge paved the way for a number of Muslim men who have been subjected to control orders in the past four years to sue the Home Office for damages by quashing the orders on the basis that they were made illegally.
One of the claimants in the High Court, known as AF, a dual UK/Libyan national, who was born in 1980 in the UK to a Libyan father and a British mother, was served with a control order in May 2006. The order confined him to his flat for 18 hours a day (reduced to 14 hours after the House of Lords ruled an 18-hour curfew illegal later that year) and subjected him to severe restrictions on his visitors, on where he could go and who he could meet during his six hours outside the flat, required him to wear an electronic tag at all times, to report his comings and goings and to expect searches of the premises at any time of the day or night, and banned him from having a mobile phone or a computer. Any breach of the order could result in five years’ imprisonment, and at various times in 2006 and 2007 AF was detained on allegations of breach of the order, for over six months in total.
The basis of the order was said to be links with alleged ‘Islamist extremists’ in Manchester, some of whom were alleged to be members of the Libyan Islamic Fighting Group (LIFG), which was proscribed under the Terrorism Act in October 2005. There was no suggestion at any time that AF was ever a member of LIFG, and the evidence supporting the control order was almost entirely secret. The control order was renewed yearly until it was revoked in August 2009, after the House of Lords ruled that AF and the other men subjected to them had to be told enough about the allegations forming the basis of the order to be able to respond to them. Rather than provide the information, the Home Office revoked AF’s order.
AF had been restricted under the order for over three years. His situation was typical of the men on control orders – draconian and punitive restrictions, imposed with no proper reasons given, and continued for years. Even when the orders have been quashed, as in AF’s case, the men are no wiser as to why they had been imposed in the first place.
The High Court’s decision, that the Home Office refusal to reveal the allegations justifying the orders renders them unlawful, paves the way for compensation claims by the men affected, although the judge indicated that the amounts awarded were unlikely to be large assuming that the orders had been made in good faith.
Of course, not all the control orders which the Home Office has made since their introduction in March 2005 have been quashed, or will be quashed as a result of this judgment. The ruling only affects those made wholly or largely on the basis of closed, secret evidence which deprived the controlled persons of the right to know the case against them and to answer it.
But neither the High Court ruling, nor the earlier House of Lords ruling in June 2009, helps another group of people against whom orders are made on the basis of secret evidence – those ordered to be deported on national security grounds. Of the dozens of Algerians, Jordanians, Tunisians, Pakistanis, Libyans, Iraqis and others finding themselves before the Special Immigration Appeals Commission (SIAC) fighting deportation, a large number are as ignorant of the basis of the decision as those fighting control orders. While they are entitled to demand reasons for detention, they are not entitled to know the reasons for their deportation, or for being subjected to control-order-style restrictions for many years as their appeals crawl through the courts. In November 2009, the Court of Appeal gave permission for seven men facing deportation orders on the basis of secret evidence to argue that the same rules of procedural fairness apply to them. Their case is likely to be heard in the spring of 2010.
The Coalition Against Secret Evidence (CASE) is campaigning for those facing deportation, deprivation of citizenship or other important adverse decisions, to be afforded the same rights of natural justice as those on control orders. The campaign includes an e-petition against secret evidence, see here.