A recent legal judgment over deporting Libyans calls into question the protection afforded by Memoranda of Understanding (MOU).

On 27 April 2007, the Special Immigration Appeals Commission (SIAC) gave its judgment on the appeals of two Libyan men facing deportation to Libya on the grounds that they are a risk to the national security of the UK. SIAC concluded that there was a real risk that the rights contained in Article 3 of the European Convention on Human Rights (ECHR) – the right not to be subjected to torture, inhuman or degrading treatment or punishment – would be violated.

The original decision to deport the Libyan men, found by SIAC to be Islamic extremists and supporters of global jihad, followed the signing of a Memorandum of Understanding (MOU) between Libya and the UK on 18 October 2005. The MOU set up assurances that, if the men were returned to Libya, they would, for example, receive humane treatment during detention, information about charges against them, access to lawyers and to the monitoring body. ‘Torture’ was not specifically referred to in the MOU because it was argued for the Home Office that Libya knew its obligations as a signatory to international treaties on human rights and would therefore know that torture was prohibited.

The MOU was initialled within a month of a phone call from Tony Blair to Colonel Qadhafi, the impetus for which had been the bomb attacks in London on 7 July 2005 in which four British men, with no links to Libya, were soon identified as the bombers. The MOU is seen as central to the British government’s counter terrorism policy.

The monitoring body appointed jointly by the two governments was the Qadhafi Development Foundation (QDF) headed by Saif al-Islam, one of Colonel Qadhafi’s sons and a member of the ‘inner circle’ maintaining power in Libya. Because of its lack of independence from the Libyan regime, SIAC concluded that the QDF could not fulfil its role as the monitoring body.

In presenting its case to SIAC, it was accepted by the Home Office that there were widespread human rights violations in Libya, including torture; that the judiciary lacked independence from the regime; that there was a possibility that evidence would be used in any trial the men faced which had been obtained by torture; and that they could face charges under Libya’s penal code which could, upon conviction, lead to the death penalty. If the death penalty was passed, the British government would ‘consider asking’ for it to be commuted to a term of imprisonment. SIAC found that there was no information available about the timetable for the commutation process.

Central to SIAC’s conclusions was its view of the unpredictability of the Libyan regime, including Colonel Qadhafi himself as head of a military dictatorship, which could lead to a possible breach of Article 3 of the ECHR. Furthermore, that the rapprochement between Libya and the UK, whilst it had gained strength since the resumption of diplomatic relations in 1999, was still too new to be the basis of a reliance upon the MOU.

The judgment did not set out what the British government would or could do if a breach of the MOU was brought to its attention.

In response to SIAC’s judgment, Tony Blair expressed his frustration that he was being prevented from fulfilling his obligations to protect the British people.

Related links

Download a copy of the SIAC judgement on Libya (pdf file, 453kb)