Deportation to torture

Human rights law prohibits the use of torture and inhuman or degrading treatment or punishment. This is an absolute right – in no circumstances will it ever be justifiable to torture someone.

The absolute prohibition on torture and ill-treatment prohibits the UK from deporting a person to another country when substantial grounds have been shown that he or she would face a real risk of being tortured or subjected to ill-treatment in that country.

In 1996 the European Court of Human Rights in the case of Chahal v UK ruled that a Sikh separatist could not be deported to his home country as substantial grounds had been shown that he would face a real risk of being subjected to torture or ill-treatment.

The issue was considered again by the Court in 2008 in the case of Saadi v Italy. The UK Government intervened in the case arguing that if there was a potential threat to national security the protection against torture could be weighed against the interests of the community as a whole.

The Court again rejected this argument holding that the conduct of the person who faces the risk of torture or ill-treatment cannot be taken into account. As one of the judges said:
“States are not allowed to combat international terrorism at all costs. They must not resort to methods which undermine the very values they seek to protect… Upholding human right in the fight against terrorism is first and foremost a matter of upholding our values, even with regard to those who may seek to destroy them.”

Diplomatic assurances

In determining whether there is a real risk that someone is likely to be tortured, many governments seek to rely on diplomatic assurances from the country they are seeking to deport or extradite a person to, that the person will not be subjected to torture or ill-treatment.

The UK Government has received a number of assurances from countries with highly questionable human rights records that they will not subject anyone to torture or ill-treatment who has been deported to that country from the UK.

Such assurances are not legally binding and beg the question – if you need ask whether a person will be tortured how can you ever rely on such an assurance?

In 2009 the House of Lords held that assurances need to provide a reliable guarantee that the person to be deported will not be subject to such treatment. This is a question of fact, and if reliable sources point to a real risk of torture or ill-treatment in that country, it won’t matter what assurances have been given.

Liberty believes that ‘diplomatic assurances’ are inherently unreliable and should carry little, if any, weight in deciding whether the risk of torture has been eliminated. With this, the most absolute of fundamental freedoms, actions speak louder than paper promises.