IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
The Hon Mr Justice Ouseley, Senior Immigration Judge Jordan and
Mr J Mitchell
SC/42 & 50/2005

Special Advocates for AS: Mr N Garnham QC & Ms J Farbey (instructed by the Special
Advocates Office)
Special Advocates for DD: Mr A Nicol QC & Ms J Farbey (instructed by the Special
Advocates Office)
Mr Michael Fordham QC & Mr Tom Hickman (instructed by Liberty) for the Intervenor

On 3 October and 14 December 2005 respectively AS and DD were each served with notice of a decision to make a deportation order against him on the grounds that his presence in the United Kingdom was not conducive to the public good because he was a danger to national security. Each was detained on the grounds of national security. They each appealed on various grounds and, although their cases are entirely separate, both their appeals were heard by SIAC at the same time from 30 October to 10 November and on 16 and 17 November 2007. The members of SIAC who heard their appeals were the chairman of SIAC, Ouseley J, Senior Immigration Judge Jordan and Mr J Mitchell.

Before SIAC there were a plethora of issues, which are discussed in great detail in a very lengthy judgment containing 433 paragraphs which was handed down on 27 April 2007. In the result the appeals against the deportation orders were allowed on a single ground, namely that there were substantial grounds for believing that the respondents faced a real risk of suffering treatment contrary to article 3 of the European Convention on Human Rights (‘the Convention’) if they were returned to Libya. The Secretary of State for the Home Department (‘the SSHD’) sought permission to appeal from SIAC but permission was refused by Mitting J. In refusing permission, he acknowledged that the issues raised in these cases were important but said that they were factual. However, permission was subsequently granted by Hallett LJ. The respondents are at present on bail subject to stringent conditions.

it here. It is sufficient to note that an appeal from SIAC to this court lies only on a point of law. We consider below the correct approach in a case of this kind in the light of AH (Sudan) v SSHD [2007] EWHL 49, [2007] 3 WLR 832, especially per Baroness Hale at [30].

The appeal is concerned solely with the issue of safety on return to Libya. The striking aspect of the case is that the SSHD’s case depends entirely upon a memorandum of understanding (‘MOU’) between Libya and the United Kingdom signed on 18 October 2005. SIAC exhibited the MOU to its judgment. It is sufficient for present purposes to say that it provides the United Kingdom with assurances that anyone deported from the United Kingdom will be properly treated. It is not necessary to go further because, on the one hand it is accepted by the SSHD that, in the absence of the MOU, there would be substantial grounds for believing that there is a real risk of the respondents being tortured on their return to Libya, whereas, on the other hand, it is accepted on behalf of the respondents that if Libya complies with the MOU there is no such risk. The sole issue on the facts before SIAC on this part of the case was whether the MOU reduced the risk to an acceptable level. SIAC accepted that, motivated by self-interest and pragmatic reasons, the Government of Libya had provided the MOU in good faith, intending to honour it. However, for reasons which are discussed in some detail at [70-80] below, SIAC held that Libya’s motivation and reasoning might change, that it might not honour the MOU and that, in consequence,