Court of Appeal dismisses appeal against deportation to Ethiopia
15 June 2012
In XX v Home Secretary  EWCA Civ 742, Robin Tam QC
led the Home Secretary's team which successfully resisted an appeal
to the Court of Appeal against a proposed "deportation with
assurances" to Ethiopia on national security grounds.
At first instance, the Special Immigration Appeals Commission
concluded that XX was and continued to be a risk to the national
security of the United Kingdom, and (in part because of the
assurances received from the Ethiopian government about how he
would be treated following his removal there) that XX's deportation
would not violate his rights under the European Convention on Human
In the Court of Appeal, XX argued that SIAC should have applied
an exclusionary rule to any evidence which may have been obtained
from unofficial detention centres housing individuals in
incommunicado detention; that SIAC erred in finding that there was
no real risk of XX facing a flagrant denial of justice if he were
to face a trial there after his return; that SIAC should not have
found that the assurances would be sufficient; and that SIAC should
not have found against him in relation to Article 5 ECHR.
Assuming that such "secret detention" violates a peremptory norm
of international law, and also assuming that SIAC took into account
evidence about the conditions of such "secret detention", the Court
of Appeal held that there is no exclusionary rule in relation to
such evidence. In particular the appeal was not about evidence
obtained as a result of such "secret detention" and there was no
parallel with the "torture evidence" rule in A (No 2) v Home
Secretary  UKHL 71,  2 AC 221.
The Court of Appeal also held that SIAC's finding of fact that
there was no real risk of XX facing any trial in Ethiopia following
his return was unassailable; the appeal lay only on questions of
law. New evidence of matters which occurred after SIAC's decision
did not show that SIAC had made any error of law.
Further, SIAC's finding of fact that there is no risk of Article
3 ill-treatment following XX's return was unimpeachable for the
same reasons, and so the question of the sufficiency of the
assurances did not arise for decision. The Article 5 argument was
dismissed in a confidential judgment.