Court of Appeal

Published April 16, 2008

AS and DD (Libya) v Secretary of State for the Home Department

Before Sir Anthony Clarke, Master of the Rolls, Lord Justice Buxton and Lady Justice Smith

Judgment April 9, 2008

A foreign national who challenged a deportation order made on national security grounds had to show substantial grounds for believing that if he was returned he would face a real risk of being subjected to torture or inhuman or degrading treatment in contravention of article 3 of the European Convention on Human Rights.

In order to satisfy that stringent test, evidence was required, not mere speculation, and that evidence would be subjected to rigorous examination.

The Court of Appeal so held, dismissing the appeal of the Secretary of State for the Home Department from the decision of the Special Immigration Appeals Commission, on April 27, 2007, to allow the appeals of the claimants, AS and DD, against deportation orders made against them on the ground that if returned to Libya there were substantial grounds for believing that they faced a real risk of treatment in breach of article 3.

Mr Philip Sales, QC, Mr Robin Tam, QC, Mr Tim Eicke and Mr Andrew O’Connor for the Home Secretary; Mr Edward Fitzgerald, QC, Mr Raza Husain, Mr Danny Friedman and Mr Hugh Southey for the claimants; Mr Neil Garnham, QC and Ms Judith Farbey as special advocates for AS; Mr Andrew Nicol, QC and Ms Judith Farbey as special advocates for DD.

THE MASTER OF THE ROLLS, giving the judgment of the court, said that the claimants were each served with a deportation order on the ground that his presence in the United Kingdom was not conducive to the public good because he was a danger to national security.

The commission allowed their appeals on the ground that there were substantial grounds for believing that if they were returned to Libya they faced a real risk of treatment which would violate article 3.

The appeal was concerned solely with the issue of safety on return. The Home Secretary’s case relied entirely on a memorandum of understanding between the United Kingdom and Libya. It provided assurances that anyone deported from the United Kingdom would be properly treated.

The Home Secretary accepted that, in the absence of the memorandum of understanding, there would be substantial grounds for believing that there was a real risk of torture on return, whereas it was accepted by the claimants that if Libya complied with the memorandum of understanding there would be no such risk. The only issue on the facts before the commission was whether the memorandum reduced the risk to an acceptable level.

The proper approach for the Court of Appeal was to consider the commission’s judgment as a whole and to hold that it erred in law only if it was quite clear that it had done so: see AH (Sudan) v Secretary of State for the Home Department ( The Times November 15, 2007; [2007] 3 WLR 832).

The commission was under a duty to consider whether there were substantial grounds for believing that the claimants would face a real risk of torture on return to Libya and that involved considering whether Libya would or might break the assurances in the memorandum of understanding: see Saadi v Italy (Application No 37201/06) delivered in the European Court of Human Rights on February 28, 2008. That was a question of fact which it was the cmmission’s duty to resolve.

The nature of the article 3 right was absolute. The evidence either revealed that there was a substantial risk if the deportee was sent back or it did not. Any threat posed by the deportee did not affect the risk faced by the deportee on return. Those were two entirely different questions.

The real risk test was more than a mere possibility but something less than a balance of probabilities or more likely than not. It was a stringent test which it was not easy to satisfy: see R (Ullah) v Special Adjudicator ( The Times June 18, 2004; [2004] 2 AC 323). There had to be substantial or strong grounds, based on evidence, for believing that there was a real risk of torture in breach of article 3.

The commission had applied the correct test. The findings of fact the commission made were capable of supporting the conclusion that the correct threshold was passed.

Solicitors: Treasury Solicitor; Birnberg Peirce & Partners and TRP, Solicitors; Special Advocates Support Office, Treasury Solicitor; Special Advocates Support Office, Treasury Solicitor.

Times Recommends

• Linklaters trounces rivals as UK's biggest firm
• Clifford Chance profits plunge 37 per cent
• Casual drinkers hit by spread of 'dry' zones