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Clive Walker on "Deportation With Assurances: UK Experience and Angst"

Benjamin Wittes
Monday, November 25, 2013, 7:03 AM

Clive Walker of the University of Leeds writes in with the following update on national security law news from Britain:

Published by The Lawfare Institute
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Clive Walker of the University of Leeds writes in with the following update on national security law news from Britain:

On 21 November 2013, the United Kingdom’s government minister with responsibility for counter-terrorism, the Secretary of State for the Home Department (Theresa May), announced that the Independent Reviewer of Terrorism Legislation, Mr David Anderson QC, will undertake a review of the policy of Deportation With Assurances (DWA) policy. The DWA policy has become both important and controversial in the United Kingdom because of its use in connection with terrorism suspects who are ordered to be deported to their Middle Eastern countries of origin. The office of Independent Reviewer of Terrorism Legislation is constituted under the Terrorism Act 2006, section 36. The main task of the Reviewer (whose work is detailed on his website) is to keep the UK terrorism legislation under review and to issue reports, but more specific reviews may also be requested by the government, as in this instance. When completed, David Anderson’s report and the Government’s response will be published. Since the DWA policy has been operative for several years, it should be asked why this review has been called and what are the problems being encountered by the DWA policy. As for origins, following the bombings in London of 7 July 2005 (‘7/7’), the then-Prime Minister, Tony Blair, warned that "the rules of the game are changing." Even though the bombers were British citizens living quietly in their communities---a profile which I have termed ‘neighbor terrorism’---many of the modifications which followed primarily related to foreign suspects of terrorism (see Walker, C., 'The treatment of foreign terror suspects' (2007) 70 Modern Law Review 427-457). One of the measures which came to prominence was DWA. However, DWA did not commence after 7/7 but was given considerable impetus by the pressing need to take firm action against foreign terror suspects. In contrast to the previous decade when the UK was viewed as a relatively indulgent harbour for political extremists from Algeria, Egypt, and Jordan---denigrated by some as the policy of "Londonistan"---the environment of relative tolerance was reshaped. The imperative became the deportation of these dozens of unwanted guests, some of whom had more than outstayed their welcome by becoming prominently involved in extremist politics. The objective of DWA is to overcome the objections which might arise against the deportation of foreigners where there is a risk of torture or flagrantly unjust criminal process in the receiving state, contrary to the 1951 Convention relating to the Status of Refugees or to the European Convention on Human Rights 1950 (articles 3 and 6---as incorporated into UK law by the Human Rights Act 1998). Those objections are gravely prescient, since many of the prime candidates had already been on the receiving end of wrongful treatment before fleeing to the United Kingdom or were such prominent enemies of their home state as to be likely to be abused at the first opportunity. The conundrum of how to secure safety on return for these deportees who could legitimately be denied asylum on grounds of their danger to security had been illustrated as long ago as the 1996. In Chahal v United Kingdom App. no. 22414/93, 1996-V, the deportation of a Khalistan extremist to India to face terrorism charges was halted on human rights grounds by the European Court of Human Rights (ECtHR). Rather than risk further reversals of policy because of the disreputable behaviour of foreign regimes, as well as suffer the diplomatic embarrassment at the hands of the courts, the UK government has sought to avert international law based objections by resort to DWAs. Five DWAs have duly been signed by the UK Foreign and Commonwealth Office and partners: Jordan (10 August 2005); Libya (18 October 2005); Lebanon (23 December 2005); Ethiopia (12 December 2008); and Morocco (24 September 2011). In addition, an exchange of letters with the government of Algeria, concluding in 2006, is considered to provide equivalent protection. The foregoing dates reveal an ongoing determination to widen this policy which is still in progress. As for content, the terms are variable but generally revolve around (1) commitments to treat in a humane and proper manner and in accordance with international standards; (2) where prosecution is contemplated, the availability of pre-trial legal assistance, prompt process, and a fair and public hearing; (3) welfare visits by the representative of an independent body and access to medical treatment. An excellent survey is provided by Shah, N., Promises to Keep: Diplomatic Assurances Against Torture in US Terrorism Transfers (Columbia Law School Human Rights Institute, New York, 2010). That survey also reveals that DWAs are not an exclusive means of facilitating deportation in terrorist cases. The British government has also continued to pursue ad hoc arrangements with other countries or where shadier rendition arrangements are made (examples being Abdel Hakim Belhadj and Sami al-Saadi, who were rendered to Libya in 2004 allegedly with British connivance). In addition, the DWA device is not a peculiar British affliction, since other countries such as France, Italy and even Russia have also dabbled with the idea. However, those other countries have shown a greater willingness to deport without assurances (sometimes in blatant defiance of orders to the contrary from the ECtHR). Overall, the importance of the DWA seems to be more pronounced in the UK than in other comparable jurisdictions. This British fidelity to the legalism of the DWA has not been entirely repaid in terms of effective results. The DWAs have become the subject of detailed and sometimes abrasive litigation, as already indicated. The most substantial and impressive body of jurisprudence has emerged from the Special Immigration Appeals Commission, which deals with immigration issues which involve national security grounds. It has generated around two dozen decisions about deportation which have included lengthy consideration of DWA, thereby giving a significant boost to the judicialisation of intelligence. A set of ground-rules appeared in BB v Secretary of State for the Home Department [2006] UKSIAC 39/2005 (5 December 2006) para.5:

Without attempting to lay down rules which must apply in every case, we believe that four conditions must, in general, be satisfied:

(i) the terms of the assurances must be such that, if they are fulfilled, the person returned will not be subjected to treatment contrary to Article 3;

(ii) the assurances must be given in good faith;

(iii) there must be a sound objective basis for believing that the assurances will be fulfilled;

(iv) fulfilment of the assurances must be capable of being verified.

These elements have been largely endorsed by higher courts, such as by the UK Supreme Court in RB v Secretary of State for the Home Department and OO v Secretary of State for the Home Department [2009] UKHL 10. The policy has also entered the portals of the ECtHR. In Othman (Abu Qatada) v United Kingdom, App. no. 8139/09, 17 January 2012, and again in Babar Ahmad, Haroon Rashid Aswat, Syed Tahla Ahsan and Mustafa Kamal Mustafa (Abu Hamza) v United Kingdom, App. nos. 24027/07, 11949/08 and 36742/08, 10 April 2012, the ECtHR was able to consider a variety of challenges in the context of various DWAs and some ad hoc assurances, including from the US government concerning the death penalty and prison conditions. The ECtHR accepted that most of the arrangements have resolved the article 3 (torture etc.) challenges, save for the case of Aswat v. United Kingdom, App. no. 17299/12, 16 April 2013, where the mental illness of the applicant was estimated to be endangered by the rigours of US supermax regimes. In addition, assurances as to article 6 (avoidance of a flagrant abuse of justice) were insufficient in the case of Abu Qatada, who faced trial in Jordan which might admit evidence affected by the torture of his confederates. This adverse judgment was responded to by a supplementary Treaty on Mutual Legal Assistance in Criminal Matters between the United Kingdom of Great Britain and Northern Ireland and the Hashemite Kingdom of Jordan (Cm 8612, 2013). As a result, Abu Qatada dropped his objections, and he has also been deported. The foregoing litigation has not only been bitterly fought in legal terms, but it has also generated a huge amount of political acrimony as to the appropriate role of the courts, the desirability of human rights codes, the involvement of the ECtHR in UK security policy, and the competence of government ministers. More fundamentally, opponents of DWA have questioned the ethics and efficacy of a policy which demands that solemn promises be kept by the very countries that have a history of abusive treatment of terrorist suspects. Given that the policy is set to continue –11 deportations have been achieved to date with as many pending, it has been decided to conduct a public review. David Anderson QC, the Independent Reviewer of the Terrorism Legislation, has been appointed (with support from yours truly), to review the framework of the DWA policy and to make recommendations on how the policy might be strengthened or improved, with particular emphasis on its legal aspects. An important feature of the review will be an examination of international comparisons. There are six key questions set out in his terms of reference:
  1. What lessons can be learned from international comparisons and comparative practice associated with the removal of individuals to states with a poor human rights record, allowing for the parameters of our legal system?
  2. What opportunities are there for HM Government or the courts to improve the quality and speed of the legal procedure in DWA cases, including appeals, whilst assuring that the subjects get appropriate legal protection?
  3. How do legal and procedural conditions imposed upon the exercise of DWA by domestic and international courts impact upon the effectiveness of the policy, and what can be done to influence the future development of such conditions or to give them effect consistently with the fair and efficient operation of DWA?
  4. In developing DWA arrangements with other countries, allowing for the fact that arrangements are specific to countries and individual subjects, what are the key considerations that HM Government should take into account in relation to the safety on return processes, including conducting assessments and the development of verification mechanisms?
  5. Is enough done to distinguish the risks different categories of persons might face on return to a particular country, or must assurances always be obtained in respect of certain countries for all potential DWA subjects?
  6. Given that concerns often relate to the initial period of detention on return and the risk of future detention and/or prosecution, could the likelihood of these eventualities be more effectively assessed and, if appropriate reduced, in advance of removal, including by improved engagement with the individual’s home authorities?
Further details can be viewed here. Your advice and observations would be most welcome. You are invited to submit written evidence to David Anderson by 7 February 2014 at this email address.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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