Deportation of individuals who may face a risk of torture – Commons Library Standard Note

International law places obligations on the UK when deporting individuals to countries where they may face a real risk of torture. Although the Refugee Convention allows refugees to be removed if they pose a risk to national security, the absolute prohibition on torture in the European Convention on Human Rights was interpreted in the case of Chahal v United Kingdom as precluding a ‘balancing act’ between a person’s national security risk and the risk that he may be tortured on return.

Initially, it appeared that the Government would intervene in a case before the European Court of Human Rights (Ramzy v Netherlands) seeking to overturn the decision in Chahal. However, the case was overtaken by events and the issue was considered in a different case, Saadi v Italy. In that case the Grand Chamber of the European Court of Human Rights upheld the reasoning in Chahal.

The Government has also sought to use Memoranda of Understanding with foreign governments as a means to facilitate the deportation of foreign nationals. This approach has had mixed results, but has been upheld by the courts in some cases.

In a recent court case involving Abu Qatada, the European Court of Human Rights ruled that the authorities could not deport him to Jordan, in circumstances where evidence that could be adduced against him is likely to have been obtained by the torture of third parties. The court ruled that this would amount to a breach of Article 6 of the Convention, since allowing the use of evidence obtained by torture during a criminal trial would amount to a flagrant denial of justice. In reaching this decision, the Strasbourg court overruled a (judicial) decision of the House of Lords. After agreeing further fair trial guarantees from Jordan, the Government were eventually successful in deporting Abu Qatada in July 2013.

Section 54 of the Crime and Courts Act 2013 restricts the availability of in-country appeals against deportation in national security cases, although the provisions cannot not be applied in cases where individuals may face a real risk of serious, irreversible harm on return.