A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) & X (FC) and another (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)

Court	House of Lords, Great Britain (UK)
Case number	[2004] UKHL 56
Decision title	Opinions
Decision date	16 December 2004
Parties	A B C D E F G Mahmoud Abu Rideh Jamal Ajouaou Secretary of State for the Home Department
Other names	A v. Secretary of State for the Home Department (No. 1)
Categories	Terrorism
Keywords	Terrorism; fair trial; unlawful detention
Links	Opinions
Other countries involved	Algeria Egypt France Morocco United States

Summary

A and others versus the United Kingdom’s Secretary of State for the Home Department (I) is the first of two House of Lords opinions in about a year time that urged the U.K. to change its laws on the treatment of and criminal proceedings against terrorism suspects. The current case revolved around nine defendants – Mahmoud Abu Rideh, Jamal Ajouaou and seven unnamed individuals, all foreign (non-U.K.) nationals living in the U.K. – who were detained without trial in the Belmarsh prison because they were linked to terrorist organisations and, therefore, constituted threats to national security. Since none of them has been the subject of any criminal charge they challenged the lawfulness of their detention as violation of Article 5(1)(f) of the European Convention on Human Rights (ECHR).

The House of Lords opined that the possibility of indefinite detention of foreign nationals indeed breached Article 5(1)(f) ECHR. On the other hand, it agreed with the government’s standpoint that constant terrorism threats could constitute an immediate danger and imminent threat to national security; such public emergency is a lawful basis to derogate from Article 5 (see Article 15 ECHR). However, in the current case the measures were disproportionate by nature and discriminatory in their effect (national terrorist suspects were not affected, while foreign suspects could be detained indefinitely – unless they would voluntarily leave the country, in which case they were free to go). Therefore, the House of Lords decided that section 23 of the Anti-terrorism, Crime and Security Act 2001, which allowed for indefinite detention of foreign suspects who could not leave the U.K. (for example because they would be tortured in their own country) was declared incompatible with the U.K.’s international human rights obligations enshrined in the ECHR.

Procedural history

All defendants were certified as potential threats and detained in the U.K. in December 2001, except for B who was detained in April 2002. Ajouaou and F voluntarily left the country for Morocco and France in December 2001 and March 2002 respectively, and their certificates were revoked following their departure. Abu Rideh was transferred to Broadmoor Mental Hospital in July 2002.

Before the Special Immigration Appeals Commission (SIAC) the defendants challenged the lawfulness of the Anti-Terrorism, Crime and Security Act 2001 (ATCSA) and the Human Rights Act 1998 (Designated Derogation) Order 2001, which permit the U.K. government to indefinitely detain foreign nationals who are suspected of having links with terrorist activities or organisations, if they cannot be deported (see Article 23(1) of the 2001 Act). The measures represent the government’s response to a perceived state of “public emergency” justifying a derogation from the right to liberty enshrined in Article 5 of the ECHR.

On 30 July 2002, SIAC decided that this was, indeed, incompatible with Articles 5 and 14 of the ECHR in so far as it permits detention of suspected international terrorists in a way that discriminates against them on the ground of nationality. The U.K. appealed against this decision and on 25 October 2002, the Court of Appeal ruled in favour of the government. It found that British nationals who cannot be removed from the country are in a different situation compared to foreign nationals; hence, different treatment can be allowed, especially in case of public emergency (which the Court found to be the case, although it applied only a marginal test because it found the Executive to be the competent authority to decide). The indefinite detention of the defendants was found strictly required under these circumstances. All nine appealed against this judgment.

Related developments

The current Opinion led the Parliament to decide to partially replace the challenged Anti-Terrorism, Crime and Security Act 2001 with the Prevention of Terrorism Act 2005 in March 2005, which allows the SIAC to make a control order (“an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism”, section 1(1)) against anyone, regardless of nationality, who is suspected of involvement in terrorism. The Prevention of Terrorism Act 2005 was thereafter repealed on 14 December 2011 by section 1 of the Terrorism Prevention and Investigation Measures Act 2011.

On 21 January 2005, the applicants also lodged a complaint about their detention before the European Court of Human Rights (ECtHR). They complained that their indefinite detention in high security conditions amounted to inhumane or degrading treatment (prohibited under Article 3 ECHR); that the detention scheme was unlawful and discriminatory and that the derogation was disproportionate; that, while their detention was declared – on exactly those aforementioned grounds, in the current Opinion – to be unlawful, they were unable to bring any proceedings in the U.K. to claim compensation or bring about their release; and that during their appeals against certification before SIAC they had only limited knowledge of the case against them and a limited possibility to challenge it. The applicants relied on Article 3 (prohibition of torture and inhuman or degrading treatment), Article 5 (right to liberty and security), Article 6 (right to a fair trial), Article 13 (right to an effective remedy) and Article 14 (prohibition of discrimination). On 19 February 2009, the ECtHR issued its judgment: the inhumane treatment complaints were dismissed, but violations were found concerning the right to liberty and security ex Article 5(1) (except for the applicants who had voluntarily left the UK); the right to have lawfulness of detention decided by a court ex Article 5(4) (only in respect of two of the Algerian applicants, the stateless and the Tunisian applicants, because they had not been able effectively to challenge the allegations against them); and the right to compensation for unlawful detention ex Article 5(5) (again, except in the case of the Moroccan and French applicants who had not been detained). Compensation was awarded.

On another issue, the appellants had appealed before SIAC in 2002. They challenged their certification as national threats linked to terrorist organisations, arguing that these certifications were based on evidence obtained through torture by foreign intelligence agencies. SIAC rejected their claim – stating that it was allowed to use such information – and the Court of Appeals affirmed this. However, the House of Lords ultimately quashed their decisions in its opinion of 8 December 2005, emphasising that using evidence obtained through torture practically constitutes endorsement of such deplorable practice, regardless whether the actual torture had been conducted by the national or a foreign government.

Legally relevant facts

All nine defendants-appellants are foreign nationals who had immigrated to the U.K. and had lived there for some time until the Secretary of State decided to deport them because they were in some way linked to Osama bin Laden and/or Al Qaeda. More specifically (paras. 173-207 of the 2004 Court of Appeal judgment):

A: an Algerian who arrived in the U.K. in 1989. On 29 July 1992, the Secretary of State decided to deport him as an over stayer. A went to Sweden but was returned by the Swedish authorities. Consequently, he sought asylum on the basis of his claimed involvement with an Algerian newspaper, which was refused; his application for indefinite leave to stay on the basis that children of him had been living in the U.K. for more than seven years was rejected as well. The Secretary of State's argument was that he had been active in supporting GSPC, a UK-based terrorist organisation, and more broadly that he had supported the objectives of Osama bin Laden and Al Qaeda.
B: an Algerian who arrived in the U.K. at an unknown date. His asylum application was ultimately rejected in 1996. On 5 February 2002, the Secretary of State decided to make a deportation order against B, and also to certify him for being a member of the GSPC since 1997 or 1998, having contacts with leading members of the GSPC in the U.K., and procuring telecommunications equipment and providing logistical support for use by Chechen Mujahedin extremists and the GSPC in Algeria.
C: an Egyptian who claimed asylum in the U.K. on 27 March 2000. On 30 March 2001, he was granted leave to stay but would not enjoy his status for long: on 17 December 2001 he was certified as active supporter of Egyptian Islamic Jihad (EIJ), a terrorist organisation which had merged with Al Qaeda in 2001. Furthermore, C had been sentenced in absentia to fifteen years imprisonment by an Egyptian military court for his role in trying to recruit serving Egyptian Army officers for the EIJ and in planning operations on behalf of the EIJ, both in Egypt and abroad.
D: an Algerian who applied for asylum in the U.K. in 1999; the application was refused in 2001. That same year, on 17 December, he was certified as supporter of the GIA and other extremists, and designated for deportation.
E: a Tunisian national who sought asylum in the U.K. in 1994, which was rejected in 2001. He received a certificate for actively and directly supporting “the Tunisian Fighting Group, a terrorist organisation with close links to Al Qaida”.
F: an Algerian who arrived in the U.K. in 1994 on a false Spanish passport. In 1997, he was charged alongside others with offences contrary to the Prevention of Terrorism Act; the case was abandoned on 3 March 2000. However, on 17 December 2001, he was certified as active supporter of terrorist organisation GIA.
G: an Algerian who arrived in the U.K. in 1995 seeking asylum. His claim was rejected, but he did obtain a residence permit for six months on 5 June 2001. On 18 December 2001, the Secretary of State issued a certificate on the footing that G was an active supporter of the GSPC.
Abu Rideh: born in Jordan to stateless Palestinian parents, and arrived in the U.K. in January 1995. He received refugee status in 1998 but on 17 December 2001 the Secretary of State issued a certificate under the ATCSA, stating that Abu Rideh was actively supporting “various international terrorist groups, including those with links to Osama Bin Laden's terrorist network”, inter alia, as fundraiser.
Ajouaou: a Moroccan who arrived in the U.K. in 1985, and who was initially granted leave to stay after marrying a British citizen. On 17 December 2001, the Secretary of State decided to make a deportation order against Ajouaou, and to certify him for having links with both the GIA and GSPC, being a close associate of extremists linked with Al Qaeda or Bin Laden, involvement in procuring high-tech equipment for the GSPC and/or Islamic extremists in Chechnya, and supporting extremist factions in Chechnya as fundraiser.

The defendants lodged numerous appeals; as far as is relevant for the current case, they argue that their detention violated their human right to freedom of arbitrary detention (para. 3).

Core legal questions

The appellants all contend that their detention was inconsistent with obligations binding on the U.K. under the ECHR (given domestic effect by the Human Rights Act 1998); that those obligations were non-derogable; that, if they were derogable, such derogation was nonetheless inconsistent with the ECHR; and that the statutory provisions under which they have been detained are incompatible with the ECHR. The core question before the House of Lords is whether these challenges of the appellants’ detention are soundly based (para. 3). Therefore it had to assess:

Whether there was a state of public emergency?;
Whether this would allow for derogation from Article 5(1)(f) ECHR (prohibiting arbitrary detention)?;

If there was a public emergency, whether derogation was still allowed in the current case in light of the rest of the ECHR?.

Specific legal rules and provisions

Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe:

Article 5(1)(f) - Right to liberty and security
Article 14 - Prohibition of discrimination
Article 15 - Derogation in time of emergency

International Covenant on Civil and Political Rights, 1966, UN General Assembly:

Article 6 - Right to life
Article 26 - Equality before the law

Anti-terrorism, Crime and Security Act 2001, United Kingdom:

Section 23(1) - Detention

Court's holding and analysis

The core legal provision applicable to the case is Article 5(1)(f) ECHR, which provides that no one shall be deprived of his liberty, except for, inter alia, the lawful arrest or detention of a person against whom action is being taken with a view to deportation. Such a person may be detained only during the process of deportation (para. 8). Derogation from the provision is allowed, though, in time of war or other public emergency threatening the life of the nation (Article 14 ECHR), only if the Secretary General of the Council of Europe has been informed of the measures taken and the reasons for them (para. 10).

The Human Rights Act 1998 (Derogation Order) 2001 considers that there are foreign nationals present in the U.K. who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism; therefore they form a threat to the national security of the U.K..

Lord Bingham, looking at these considerations, referred to the ECtHR in Lawless v. Ireland, where the Court had ruled that the phrase “other public emergency threatening the life of the nation” refers to ‘an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed’ (para. 28 of the ECtHR’s decision). Such threat must be actual or imminent, and temporal. It is primarily up to the national government to decide whether such situation exists; there is space for judicial scrutiny though (para. 18), but the more political and less legal an issue gets, the smaller such space will be (“relative institutional competence”). According to Lord Bingham, appellants have shown no reasonable ground to necessitate the House to displace the Secretary of State’s decision on this important threshold question (para. 29).

However, it was held that this does not mean that the government can take any measure to combat such public emergency; the measure must be proportional (para. 30). In assessing the proportionality of the detention of defendants, the House of Lords took note of the fact that certified and detained foreigners were allowed to leave the country. Considering Opinion 1/2002 of the European Commissioner for Human Rights, the review of the 2001 Act by the Newton Committee, and the SIAC’s failure to show the strict necessity of the taken measures, the House of Lords came to the conclusion that the measures were not necessary, illogical (foreign terrorist suspects may leave voluntarily if they can, but if they cannot due to the risk of torture in their own country, the U.K. can indefinitely detain them), and disproportional (para. 43).

As for the argument concerning the distinct treatment of foreign terrorist suspects, the House of Lords noted that Article 14 ECHR prohibits discrimination based on nationality (para. 49). Suspected international terrorists who are U.K. nationals are in a situation analogous with the appellants (para. 53); hence, a ‘decision to detain one group of suspected international terrorists, defined by nationality or immigration status, and not another’, is discriminatory and cannot be justified (para. 68). All Lords of the House agreed with this outcome: the appeals was allowed.

A quashing order was given in respect of the Human Rights Act 1998 (Designated Derogation) Order 2001, and section 23 of the Anti-terrorism, Crime and Security Act 2001 was declared ‘incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status’ (para. 73).

Further analysis

Concluding Observations of the Human Rights Committee, United Kingdom of Great Britain and Northern Ireland, UN Doc. CCPR/CO/73/UK/Add.2 (2002), University of Minnesota Human Rights Library, 2002.

‘Amnesty International’s Memorandum to the UK Government on Part 4 of the Anti-terrorism, Crime and Security Act 2001’, Amnesty International, 5 September 2002.

I. Leigh, ‘Democratic Control of Security and Intelligence Services: a Legal Framework’, Working Paper No. 119, Geneva Centre for the Democratic Control of Armed Forces (DCAF), May 2003.

K. Dorling, ‘An Exceptional Situation? A Comparative Assessment of Anti-Terrorism Arrest and Detention Powers in the UK and Spain and of their Compliance with the European Convention on Human Rights’, Essex Human Rights Review, February 2007, Vol. 4(1), pp. 1-17.