Court of Appeal
Published August 3, 2007
MT and Others (Algeria) v Secretary of State for the Home Department
Before Sir Anthony Clarke, Master of the Rolls, Lord Justice Buxton and Lady Justice Smith
Judgment July 30, 2007

When a person appealed against an order for deportation because he feared torture or ill-treatment in his home state, in scrutinising the case, the Special Immigration Appeals Commission was entitled to take into account closed as well as open material.

The Court of Appeal so held, inter alia, when: (i) allowing appeals by MT, RB and U against the dismissal by the commission of their appeals from the decisions of the Secretary of State for the Home Department to deport them to Algeria on the ground that their removal would be conducive to the public good because each of them was a danger to national security, and (ii) remitting their cases to the commission for reconsideration.

Mr Keir Starmer, QC and Mr Raza Husain for MT; Mr Rabinder Singh, QC and Mr Hugh Southey for RB; Mr Richard Drabble, QC and Mr Hugh Southey for U; Miss Dinah Rose, QC and Mr Alexander Bailin for Liberty, intervening; Mr Robin Tam, QC, Mr Robert Palmer and Ms Caroline Neenan for the Home Secretary; Miss Judith Farbey, special advocate for MT; Mr Nicholas Blake, QC and Mr Martin Chamberlain, special advocate for RB; Mr Andrew Nicol, QC and Mr Thomas de la Mare, special advocate for U.

THE MASTER OF THE ROLLS, giving the judgment of the court, said that the appeals centred principally on whether if he were returned to Algeria there was a real risk that each claimant would be subjected to treatment contrary to article 3 of the European Convention on Human Rights.

In each case, the claimant submitted that the commission erred in law in concluding that there were no substantial grounds for believing that he would be exposed to a real risk of being subjected to torture or inhuman or degrading treatment or punishment if returned to Algeria.

The first issue was whether it was open to the commission to use closed, as well as open material in reaching its conclusions.

The national court was obliged to engage in rigorous scrutiny of every article 3 case in view of the absolute character of its obligations under that article 3 and the fundamental values that it enshrined: see Chahal v United Kingdom (Application No 22414/93) ((1996) 23 EHRR 413).

However, it did not follow that the claimant’s presence throughout or the giving to him of all the evidence was a necessary component of the rigorous scrutiny. Chahal’s case did not mandate any particular form of scrutiny and did not require the claimant to be present throughout.

The court could not interfere with the statutory scheme in, inter alia, the Special Immigration Appeals Commission Act 1997.

The commission was rigorous in ensuring that the Home Secretary did not extend the closed process in an unreasonable way. That course was proper and sensible and properly mitigated the practical effect of a statutory scheme that was unchallengeable in law.

It was submitted for MT that the evidence currently available demonstrated an error of law on the commission’s part: see E v Secretary of State for the Home Department ([2004] QB 49). The commission made a mistake as to an existing fact; neither MT nor his advisers was responsible for that mistake and it played a material part in the decision.

The court urged caution in the use of that principle to turn a simple error of fact into an error of law by asserting some new fact which in itself was contentious. The commission had reached a conclusion on the facts by a process which was unfair to MT.

The failure to give that point anxious scrutiny by insisting upon evidence concerning it was not an error of fact but an error of law which entitled the court to interfere with the conclusion reached by the commission.

The commission concluded that MT had lost his status as a refugee under article 1F(c) of the Convention and Protocol relating to the Status of Refugees (1951) (Cmd 9171) and (1967) (Cmnd 3906).

The question was whether article 1F(c), which provided that the Convention should not apply to persons who had been guilty of acts contrary to the purposes and principles of the United Nations, extended to acts committed after recognition of a person’s status as a refugee.

The court rejected MT’s submission that article 1F(c) was limited to acts committed before an individual was recognised as a refugee.

Being a refugee, as defined in the Refugee Convention, did not require or start with a formal state act of recognition of status. A person simply was or was not a refugee within article 1A.

He could lose his status in a number of circumstances set out in articles 1C, D, E or F. Nothing in article 1F indicated that it only applied to those who had not previously been accorded the status of refugee. The commission correctly held that article 1F(C) applied both before and after recognition as a refugee.

Solicitors: Birnberg Peirce & Partners; Fisher Meredith; Birnberg Peirce & Partners; Mr Alex Gask, Southwark; Treasury Solicitor; Special Advocates Support Office; Special Advocates Support Office; Special Advocates Support Office.

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