UK Supreme Court - Belmarsh - the sequel (A and others v SS for Home)

by Ben Mendelowitz

In 2009, 11 refugees applied to the European Court of Human Rights under:

A violation of their right to liberty and security.

A violation of the right to have lawfulness of detention decided by a court.

A violation of the right to be compensated for such violations.

Rather similar to the human rights case heard before the House of Lords in 2005 (A and Other v Secretary of State for Home Department). So the question must be asked: Can the government carry out discriminatory detention schemes?

But first, some context is needed. The applicants were 11 individual, six of Algerian nationality; four of French, Jordanian, Moroccan and Tunisian nationality; and one, born in a Palestinian refugee camp in Jordan, is of no state.

Following the ‘al-Qaida claimed’ attacks of 11 September 2001 on the United States, the British government concluded that the UK was a potential target for terrorist attacks, such attacks giving rise to a ‘public emergency threatening the life of the nation’ within the meaning of Article 15 of the European Convention on Human Rights.

The government believed that the threat came from a number of foreign individuals present in the UK providing a support network for extremist Islamic terrorist operations linked to al-Qaida. These individuals could not be deported a there was a risk that each would be harmed in his own country – in breach of Article 3 of the ECHR. Therefore the government considered it was necessary to create an extended power permitting the detention of foreign nationals, where the Secretary of State believed that the individual’s presence in the UK threatened national security.

Yet this detention scheme could be considered ‘incompatible’ with Article 5.1 of the ECHR (right to liberty), so on the 11 November 2001 the government issued a notice of derogation under Article 15 of the ECHR to the Secretary General of the Council of Europe (at the time Daniel Tarschys). This set out, under the Crime and Security Act 2001, the powers to detain foreign nationals identified as ‘suspected international terrorists’ who could not ‘presently’ be removed from the UK.

This legislation was short-lived, but during its 4-year life span 16 individuals, including these 11 applicants were indentified and detained. Six of these applicants were detained on 19 December 2001; the others being detained on various dates until October 2003. All were initially detained at Belmarsh Prison. The Moroccan and French applicants elected to leave the UK and were released. Yet three applicants were transferred to Broadmoor Secure Mental Hospital following deterioration in their mental health.

Moreover, each applicant appealed to the Special Immigration Appeals Commission against the State’s decision to identify him as a ‘terrorist’. Throughout this appeal the SIAC separated evidence, only making some ‘non-sensitive’ material available to each detainee and their legal representatives. On 30 July 2002, the SIAC upheld the decisions to certify the individuals yet, because the detention scheme only applied to foreign nationals, it was found to be in breach of the Convention.

On 21 January 2005 the application was lodged with the European Court of Human Rights and was heard in public hearing on 21 May 2008. The applicants alleged before the Court that their indefinite detention in high security conditions amounted to inhumane of degrading treatment. They also complained that the detention scheme was unlawful and discriminatory and that the derogation was disproportionate. Furthermore, although their detention was deemed to be in breach of UK law as they were unable to bring about any proceedings in the UK to claim compensation or bring about release – essentially a gross breach of their human rights under the ECHR. Finally, the applicants stated that during their appeals against identification before the SIAC (Special Immigration Appeals Commission) they only had limited knowledge of the case against them and, therefore, only had limited possibility to challenge it.

So, considering these allegations, the court held unanimously that there had been:

·         No violation of Article 3 (prohibition of torture and inhumane or degrading treatment) taken alone or in conjunction with Article 13 (right to an effective remedy) of the European Convention on Human Rights in respect of all the applicants, except the Moroccan applicant whose complaints under these articles were declared inadmissible. The Court found no violation as applicants did have prospect of release (being able to challenge the legality of detention), remedies to challenge conditions of detention and there was no evidence of inhumane or degrading treatment.

·         A violation of Article 5.1 (right to liberty and security) of the Convention in respect of all the applicants, apart from the Moroccan and French applicants who had elected to leave the UK. In regard of the other applicants the court ruled that as the applicants had been detained without the objective of deportation or being charged. Moreover the House of Lords had found the derogating measures, which permitted their indefinite detention, discriminated unjustifiably between nationals and non-nationals.

·         A violation of Article 5.4 (right to have lawfulness of detention decided by a court) in respect of two of the Algerian applicants, the stateless and Tunisian applicants as they had not been able to challenge the allegations against them due to the limited provision of evidence; and,

·         A violation of Article 5.5 in respect of all the applicants, except the applicants who had elected to leave, on account of the lack of an enforceable right to compensation for the above violations

The Court gave compensation in view of the fact that the scheme was set up in the face of ‘a public emergency’ and to protect the UK against terrorism with obligation not to send applicants back to their domestic countries – where they faced the risk of serious ill treatment.

I believe that this is a rather important case. It shows that the power of the executive can be curtailed in regard to trampling on individual’s rights as well as showing that the ECHR isn’t some hyper human rights activist body (as many European court bashing politicians say). The Court came to a very sensible decision – whatever political reasons for limiting the derogation to nationals, they cannot justify discriminating on nationality, especially when this undermines the whole reasoning behind the derogation, since nationals can be equally dangerous to the state- the 7/7 bombings in London can demonstrate this. 

Therefore, this would be particularly useful for politics students because (if you can shorten this into a couple of lines) a very good example of the balance, leniency and fairness the ECHR is capable of achieving.