Immigration Barristers' Blog

The European Court of Human Rights has ruled that Omar Othman (Abu Qatada) cannot be deported to Jordan while there remains a real risk that evidence obtained by torture will be used against him.

The applicant, Omar Othman, is a Jordanian national who was born in 1960 near Bethlehem, then part of Jordan. He is currently detained in Long Lartin prison, Worcestershire, England. He is suspected of having links with al-Qaeda.

Mr Othman arrived in the United Kingdom in September 1993 and made a successful application for asylum, in particular on the basis that he had been detained and tortured by the Jordanian authorities in 1988 and 1990-1. He was recognised as a refugee in 1994, being granted leave to remain until June 1998.

While his subsequent application for indefinite leave to remain was pending, he was detained in October 2002 under the Anti-Terrorism, Crime and Security Act, and in August 2005 he was served with a notice of intention to deport him to Jordan.

Mr Othman appealed against that decision. He had been convicted in Jordan, in his absence, of involvement in two terrorist conspiracies in 1999 and 2000. Mr Othman claimed that, if deported, he would be retried, which would put him at risk of torture, lengthy pre-trial detention and a grossly unfair trial based on evidence obtained by the torture of his co-defendants.

The UK Special Immigration Appeals Commission (SIAC) dismissed his appeal, holding in particular that Mr Othman would be protected against torture and ill-treatment by the agreement negotiated between the UK and Jordan, which set out a detailed series of assurances. SIAC also found that the retrial would not be in total denial of his right to a fair trial.

The case then went to the Court of Appeal and the House of Lords, and in February 2009 Mr Othman lodged an application with the European Court of Human Rights. The European Court has now ruled that in the absence of any assurance by Jordan that the torture evidence would not be used against Mr Othman, his deportation to Jordan to be would be a violation of Article 6 (right to a fair trial).

The Court of Appeal has ruled that migrants have the right to insist on taking legal advice before consenting to removal by the UK Border Agency [UKBA] at less than 72 hours notice.

The case of ‘Medical Justice v the Home Secretary’ related to a UK Border Agency argument that migrants who consented to removal from the UK were in effect waiving their right to legal advice.

The Court of Appeal decided that removal at less than 72 hours notice was insufficient for access to effective legal advice. In doing so it upheld important principles about an individual’s right of access to legal advice and to the courts when facing State action.

Responding to the ruling Law Society Chief Executive Desmond Hudson said the Court of Appeal stood above the criticism by politicians and elements of the media about the courts’ intervention in immigration cases.

“This case shows the need for the courts to protect the rights of the individual, whether an immigrant or anyone else, to have access to legal advice.

The Law Society provided two witness statements to the court. The Society stated that consent has to be real and therefore properly informed by legal advice, particularly when it means that the individual is withdrawing outstanding court challenges.

The Society pointed out that it is simply unsafe for the UKBA to rely upon that consent unless it is properly informed. It is therefore in the UKBA’s own interest to ensure that consent is properly given and recorded. The failure of the UKBA to take steps to ensure that this happens, the failure to contact migrants legal representatives in these cases and the failure to keep proper records of ‘consent’ led to the court challenge.

The Independent Chief Inspector of the UK Border Agency, has published a thematic inspection report of how the UK Border Agency manages foreign national prisoners.

The European Commission has asked eight Member States to ensure full compliance with EU rules on the return or removal of irregular migrants. So far Austria, Belgium, Cyprus, Germany, Lithuania, Poland, Sweden and The Netherlands have not notified the Commission of national measures implementing the 2008 'Return' Directive. Member States were required to transpose the provisions of the Directive by 24th December 2010, and their failure to do so is jeopardizing the efficiency and fairness of the common return procedure and undermining the EU's migration policy.