BB, PP, W, U & Ors v The Secretary of State for the Home Department [2015] EWCA Civ 9
This is part of a series of challenges against decisions of SIAC in relation to nationals of Algeria found to constitute a threat to national security.
This latest challenge related to SIAC’s decision that there would be no breach of Article 3 if these individuals were deported to Algeria and subjected to the 12 day period of detention on arrival in Algeria known as “garde à vue” detention.
Three complaints were raised by the appellants: that SIAC was wrong to conclude that the treatment they would receive whilst detained would not breach Article 3 (this ground leading to a useful and up-to-date analysis – see §§14-26- of the state of the law as to the threshold requirements for engaging the operation of this article and whether this varied according to the nature of the removal decision and the nature of the circumstances giving rise to its invocation); that adequate safeguards were in place to enable verification of the Algerian authorities undertakings assuring that the appellants would not be harmed (this ground leading to a useful summary of the conditions suggested by law as yardsticks for accepting such assurances- see §§27- in particular the requirement that the fulfillment of assurances must be verifiable- see §§28-42); and, thirdly, that such assurances were made in front of and subscribed to by DRS Officers.
The court upheld the first and second complaints (finding in relation to the first that SIAC had misdirected itself as to the state of the law regarding Article 3; and in relation to the second because of further evidence presented by the appellants set against earlier evidence raised), but not the third (finding that there was no requirement in law for evidence of the presence of DRS officers to be set out in open evidence; rather, it was evidence of the substantive assurance that needed to be set out in open evidence – see §§43-52). In this context the Court of Appeal remitted the cases back to SIAC for re-determination of the errors found.