In an important ruling for people under control orders, the Supreme Court has recognised that separation from family members can turn internal exile into the equivalent of a prison sentence.
On 16 June 2010, the Supreme Court, sitting with seven judges, issued a significant ruling for the rights of people subjected to control orders under the Prevention of Terrorism Act 2005 (all of whom appear to be Muslims), when it held that isolation from family can tip the balance and turn the order into a deprivation of liberty.
The case concerned the forced removal of AP, an Ethiopian national who has lived in London for eighteen years, since he was fourteen, to a town in the Midlands 150 miles from his family. AP went to Somalia and Ethiopia in 2005 and while in Ethiopia he was detained. On his return he was arrested with a view to deportation. When in 2008 the Home Office decided he could not be returned to Ethiopia, he was placed under a control order, which subjected him to a sixteen-hour curfew, electronic tagging and other restrictions on association and communication. At first he was allowed to continue living in London, but later in 2008 he was ordered to leave London, where his mother, brother, sister and extended family live. The justification for the move was to make it more difficult for him to see ‘extremist associates’. But as the Court accepted, the move caused AP great distress, since his family could only visit him very rarely. Additionally, he was isolated by language and culture from the local population, including the Muslim community who were mainly from the Indian subcontinent, and when he went to the local gym his electronic tag made people treat him like a criminal, and his sense of alienation was reinforced.
The High Court described his situation as one of internal exile, and held that the combination of this and the sixteen-hour curfew made AP so socially isolated that his situation was equivalent to imprisonment, and breached AP’s right to liberty. The Home Office successfully appealed this decision to the Court of Appeal, but the Supreme Court reinstated the High Court’s decision.
At the supreme court the Home Office barrister argued that the judge should ignore his and his family’s individual circumstances, such as poverty, child care commitments or health problems which made visits difficult. This argument was decisively rejected by the Court, which held that only an unreasonable refusal by the family to visit could be disregarded in assessing the impact of the order.
The judgment comes as another welcome intervention by the country’s senior judges to mitigate the harshest effects of the control order regime – a regime which, despite the LibDems’ manifesto commitment, is likely to endure in the new coalition government.
Bail terms breached to publicise plight
In another case, Jordanian Husein Al Samamara, who has been on control order-type bail conditions for two years awaiting deportation on national security grounds, became so desperate about his and his family’s plight that he defied a bail condition which banned recording equipment in his home in order to allow journalists to film an interview. The interview was broadcast on BBC’s Newsnight on 16 June. In it, Al Samamara sought to convey the anxiety and frustration caused by facing largely unknown accusations – which kept him locked up in maximum security conditions at Long Lartin prison for two years before his release on bail, and which now confine him to his home for sixteen hours a day. He spoke movingly about the impact of the order on his wife and children. But retribution was swift – on 18 June the Home Office went to the Special Immigration Appeals Commission to have his bail revoked. Fortunately, the judge demurred, saying that he did not intend to make a martyr of Al Samamara. Meanwhile, the Court of Appeal is due to give judgment on whether the deportation case against him is fundamentally flawed by the secret evidence.
Download a copy of the AP judgment here (pdf file, 56kb)
Watch the BBC Newsnight report: Terror suspect speaks about life under ‘house arrest’