Below we reproduce a statement by Gareth Peirce (of Birnberg Peirce & Partners), a solicitor for a number of Algerian men, ‘suspected terrorists’ who have variously been detained without trial or placed under house arrest. The men ‘voluntarily left’ the United Kingdom at the weekend.
‘Fewer than a handful of Algerian refugees are consciously choosing to face torture and indefinite detention in the coming days by returning to their country of origin.
Do they have a choice? They could in fact continue to stay in this country and have considerable confidence that they could win their challenge to the government’s policy, in the House of Lords or ultimately in the European Court of Human Rights. For most, however, of the past decade in which they have lived in this country, five years has been spent in prison. For three and a half years they fought (and won) a challenge to their indefinite detention without trial. The government acknowledged then that they could not be deported to a country that practised torture and was more than likely to do so in the case of each of these men. It adopted the use of initials of the alphabet for each man to protect families in Algeria from official attention.
Now each has the worst of all worlds. Each man wanted to clear his name but secret evidence and secret courts never allowed him a chance to do so. The same unsafe process adopted by the internment legislation condemned by the House of Lords almost immediately reinstated itself, this time under the guise of deportation proceedings with the same small handful of men locked up once again. This time, however, each man discovered that, far from his promised anonymity in Algeria, not only had the stigma of an allegation of links to or involvement in international terrorism been transmitted to the Algerian regime with his name attached to it, but that each family in Algeria had been questioned at the request of the government here and the findings of the unlawful internment proceedings handed over lock, stock and barrel to the same regime whose torture chambers and intelligence services remain intact.
That some individuals have chosen to leave after a decade here is a victory for no-one and the circumstances of their departure bring shame to all concerned. The prime minister announced a year and a half ago that the ‘rules of the game have changed’ and, as his first initiative, locked up these men once again, this time to be deported although none had breached any condition of his brief release after his victory in the House of Lords. Mr Blair acknowledged, however, that there would first have to be in place a Memorandum of Understanding and an independent monitoring organisation to provide a minimum prospect of protection. Instead, the Algerian regime refused both and the UK settled for a worthless, vague and unenforceable promise. The men find themselves in a terrifying void in which UK government officials are today asking each man for details of his ‘next of kin’, in which Algerian officials are telling them that the UK is ‘playing politics’ with their departure and the UK officials in turn are claiming that whatever plans have been informed to the men concerned are being frustrated by failures on the part of Algeria. Even within the most elementary details of departure there is wholesale chaos.
Why would any individual plunge into such fear and uncertainty if he had any choice? Each believes he faces torture or death, not because he has committed any offence, but because he has been branded (in large part by the UK) and each has concluded that he cannot, by staying here, ever hope to eradicate that branding. He therefore is choosing, he says, ‘a quick death there rather than an endless slow death here’.
Those men who have families are leaving for one reason – to give their families the hope of a normal existence without them here. At the moment, the lives and thoughts of each family are entirely dominated either by the imprisonment of the man, or if on bail, the reality of his being allowed out of his house little more than 2-4 hours a day at most; all visitors to the house needing Home Office approval; the presence of electronic monitors; police entering the house at all hours and searching the children’s possessions; telephone calls throughout the night. Above all, is the ever present fear that each may be breaching a prohibition that he knows nothing of and the grim comprehension that he can never know or dislodge the allegation that has placed him and his family in this never-ending circumstance.
Each man goes in despair of ever clearing his name. All research into the effects of wrongful convictions speaks of the devastating effect of wrongful accusations upon the individuals and their families. For these men there have been no convictions, no proper accusations, no knowledge of what is alleged against them and, astonishingly, for most, no questioning by police to discover whether untested secret assumptions might be wrong. Despite the poverty of the allegations, and the inability of the men ever effectively to challenge them, nevertheless it is the simplistic branding that attaches to their departure in the coming days. We ask that, instead, a greater understanding attach to what is happening and why; those who work to eradicate torture do not see these deportations as a victory.’
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There is also an important obstacle to bringing substantive medical evidence of torture of individuals detained to the attention of the courts when a detainee has been issued removal directions by charter flight. Paragraph 60.12 of UKBA’S Enforcement Guidance Manual states: “If proceedings are lodged or JR is threatened by, or on behalf of, a person who is due to be removed on a charter flight, the case must be referred to OSCU immediately. OSCU will consider whether it is appropriate to proceed with removal on a case by case basis in order to guarantee the viability of the operation. If the OSCU decides not to defer removal, the claimant or his representatives must be informed of this decision and the reasons for it in writing and must be told that removal will proceed unless an injunction is obtained.” My understanding of the current situation is that: in practise, Medico-Legal Reports detailing evidence of torture or other violence after RDs by charter have been issued are referred to UKBA’s Operational Support & Certification Unit. The OSCU’s usual refusal to accept the medical evidence as grounds for a fresh claim are dictated by spending priorities (“operational constraints”). Since detainees subject to removal by charter can no longer apply for Judicial Review of the refusal of a fresh claim (without OSCU’s permission), their only recourse is a High-Court injunction. This may be an administrative procedure with important implications for forensic evidence that we should bring to the High Court’s attention.