9-G_SIAC Guidance Note 6: Safety on Return in Deportation Cases

Article 3 ECHR

1. Article 3 of the European Convention on Human Rights (ECHR) renders it unlawful to

deport a person where there are substantial grounds for believing that the person will be
exposed to a real risk of torture or to inhuman or degrading treatment or punishment on
return (Soering v UK 1989). Any threat posed by the individual to the UK is irrelevant
and cannot be taken into account (Chahal v UK 1996; Saadi v Italy 2008). Similar
guarantees are found in article 3 of the UN Convention against Torture1 and article 7 of
the International Covenant on Civil and Political Rights2. The UK is party to all 3
conventions.

2. The best articulation of what amounts to a real risk for the purposes of article 3 ECHR is
set out in the Court of Appeal‟s judgment in AS and DD [2008] EWCA Civ 289 and the
ECtHR‟s judgment in Saadi v Italy 2008. In summary, The ECtHR has expressly rejected
our argument that real risk means more likely than not. The threshold is something
more than a mere possibility but less than more likely than not and it is not easy to
satisfy. The following attempts to summarise the key points:

 The requirement that there be substantial grounds for believing that there would be a
real risk of ill-treatment means simply that there must be „a proper evidential basis
for concluding that there was such a real risk‟ (para 24 CoA). The decision as to real
risk cannot be based on mere assertion or speculation (para 28 CoA)
 Saadi v Italy 2007 confirmed that real risk does not require the treatment to be more
probable than not (para 55 CoA) (and in doing so rejected HMG‟s argument)
 A mere possibility of ill-treatment on account of an unsettled situation is insufficient
(para 131 ECtHR)
 “A real risk is more than a mere possibility but something less than a balance of
probabilities or more likely than not. We do not think that it is helpful further to
elaborate the test beyond that stated in Saadi and the cases referred to in it.” (para 60
CoA)
 The test is not one of „real and immediate risk‟ (CoA para 64)
 But the test is a stringent one which „it is not easy to satisfy‟ (CoA para 65)
 The ECtHR‟s examination of the existence of a real risk will be rigorous (para 128
ECtHR)
 It‟s for the applicant to adduce evidence of the real risk and for the Government to
dispel doubts about it (para 129 ECtHR)
 ECtHR must examine „the foreseeable consequences‟ of returning a person bearing in
mind the general situation in the country (para 130 EctHR)
 The risk is assessed at the time of expulsion or if it‟s not taken place the time of
ECtHR consideration (para 133 ECtHR)

Assurances

1
Article 3 of the UN Convention Against Torture prohibits states which are party to that Convention from
expelling, returning or extraditing a person to another country where there are substantial grounds for believing
he would be in danger of being subjected to torture.
2
Article 7 of the International Covenant on Civil and Political Rights contains similar wording to article 3
ECHR.
3. Assurances are a means of ensuring that deportations can take place in compliance with
these obligations; they enable us to obtain case-specific information that enables us to
satisfy ourselves that the receiving State will not treat persons who are deported from the
UK in a way that would be contrary to article 3 ECHR.

4. SIAC requires 4 conditions to be satisfied if assurances are to be relied upon (BB v SSHD,
SIAC determination 5 December 2006, para 5):

 the terms of the assurances must be such that, if they are fulfilled, the person
returned will not be subjected to treatment contrary to article 3 ECHR;
 the assurances must be given in good faith;
 there must be a sound objective basis for believing that the assurances will be
fulfilled;
 fulfilment of the assurances must be capable of being verified.

5. The House of Lords has upheld this approach and confirmed that assurances are to be
assessed on a case by case basis (RB (Algeria) and another and OO (Jordan) v SSHD
[2009] UKHL 10).

6. The ECtHR has held that, where assurances are used, they need to be examined in order
to establish whether they provide a sufficient guarantee and that the weight to be given
to assurances depends in each case on the circumstances obtaining at the material time
(Saadi v Italy, para 148).

7. Points to note:

 In exceptional cases, article 3 ECHR may prevent deportation if medical treatment

required by the individual will not be available on return (D v UK 1997). However,
jurisprudence under article 3 ECHR suggests that whilst treatment needs to be
available somewhere in the receiving country, it is not necessary to guarantee that, or
even consider whether, the individual will be able to access that treatment in order
for the requirements of article 3 ECHR to be met (Ndangoya v Sweden 2004). (Note,
however, that the question of accessibility may be relevant for the purposes of para
364 of the Immigration Rules under which the Secretary of State must consider
whether the presumption in favour of deportation is outweighed in any particular
case.3)

See also SIAC Guidance Note 13: Guide to Assurances

Other ECHR rights

8. A real risk of a flagrant denial of certain ECHR rights other than article 3 may prevent
deportation (Ullah and Do v SSHD [2004] UKHL 26). Whether there is a flagrant denial
of a right will depend on whether there is a complete denial or nullification of the right
(EM (Lebanon) v SSHD 2008; RB (Algeria) and another and OO (Jordan) v SSHD [2009]
UKHL 10 para 246).

3
The immigration rules in force at the time the decision was taken are the ones which will apply to that decision.
Earlier versions of rule 364 did not contain a presumption in favour of deportation.
9. With regard to article 6 ECHR (fair trial) the House of Lords has held (in RB (Algeria)
and another and OO (Jordan) v SSHD [2009] UKHL 10) that: the proper approach is to
take all the factors together and consider in the round whether there is a real risk of a
flagrant denial (para 246); it is not necessary to obtain a high degree of assurance that
evidence obtained by torture will not be admitted on return (para 153); the lack of
independence of the Jordanian judiciary was not sufficient to give rise to a flagrant
denial. This is being challenged in Strasbourg by O.

10. With regard to article 5 ECHR (detention) the House of Lords has held (in RB (Algeria)
and another and OO (Jordan) v SSHD [2009] UKHL 10) that: being detained without
charge for 50 days without being brought before a court did not amount to a flagrant
denial of article 5. Reference was made to Lord Steyn‟s judgment in Ullah (para 43) in
which he gave the example of a flagrant denial of article 5 being arbitrary detention for
many years.

Breach of article 8 ECHR in-country

11. Deportation may be contrary to article 8 ECHR because of rights enjoyed by the appellant
or his family in the UK prior to deportation. For more information see HOLAB Guidance
Note: Is Deportation Compatible with Article 8?

September 2009