News

Decision on Abu Qatada deportation
17 January 2012

In the challenge by Omar Othman (better known as Abu Qatada) to the decision to deport him to Jordan on national security grounds, Robin Tam QC was part of the Home Secretary's team before the European Court of Human Rights when it considered the application made by him after his unsuccessful appeal before the domestic courts.

In an important decision for the United Kingdom's counter-terrorism measures, the Court upheld in principle the concept of "deportation with assurances" to countries where the individual might ordinarily be thought to face so great a risk of torture or inhuman or degrading treatment that his deportation there would not be lawful. Assurances given by the government of such a country can amount to a sufficient guarantee against such ill-treatment. The specific and comprehensive assurances given by the Jordanian government and the arrangements in place for Abu Qatada's deportation meant that he would not be exposed to a real risk of such ill-treatment. Nor was deportation prohibited by the possibility that he might be detained incommunicado for up to 50 days, which falls far short of the length of detention that would be required for deportation to violate the European Convention on Human Rights.

Further, in relation to this issue the United Kingdom's system for examining "closed evidence" (sensitive evidence which is not disclosed to the individual and adduced to the court only in closed sessions from which the individual is excluded but in which his interests are represented by a special advocate) was sufficient to provide the remedy required by the Convention.

However, there was a high probability that evidence from two other individuals would be adduced against Abu Qatada in his subsequent retrial in Jordan for offences of which he has already been convicted in absentia, and there was a real risk that that evidence had been obtained from those individuals by torture. That meant that there was a real risk of a flagrant denial of justice following his deportation, with the consequence that Article 6 of the Convention prohibited his deportation.