Deportation with Assurances: call for evidence

What is to be done with a foreign terror suspect who cannot be deported because of the risk of torture in the receiving state?  That seemingly intractable question has long preoccupied policy-makers, in Europe and elsewhere.

The UK’s answer has been the policy of “deportation with assurances”, or DWA.¬† Agreements¬†are negotiated with other countries (so far exclusively in the Middle East¬†and North Africa),¬†and processes put in place to monitor safety on return.¬† If the arrangements meet standards imposed by domestic and international courts, deportation can proceed.¬† Those standards are strict – but not unattainable.¬† The¬†best-known application of the policy was in the¬†case of Abu Qatada,¬†who was returned¬†to Jordan in July of this year after the requirements of the courts had been satisfied.

 DWA remains highly controversial.  Some would have preferred to deport Abu Qatada regardless of what might happen to him at his destination.  Others have reservations of principle about negotiating or giving effect to assurances from regimes that practise torture.  Many would agree that some of these cases have taken far too long to resolve.  And the 11 successful deportations under the policy to date represent, on any view, only a modest return on the efforts that have been put into the negotiations.

So it is timely that the Home Secretary has asked me to conduct a review of the policy.  My terms of reference are here.  I have agreed to review the framework of the DWA policy and to make recommendations on how the policy might be strengthened or improved, with particular emphasis on its legal aspects.  An important feature of the review will be an examination of international comparisons, a process which will be expertly led by my special adviser, Professor Clive Walker of the University of Leeds.

If you have knowledge or experience of DWA, I welcome your written evidence to my review.  I do not expect to publish the evidence, but will acknowledge all contributions and look forward to arranging a conference in 2014 where the informed views of lawyers, NGOs and others can be exchanged.

The issues on which I particularly invite comment are the six key questions set out in my terms of reference:

  1. What lessons can be learned from international comparisons and comparative practice associated with the removal of individuals to states with a poor human rights record, allowing for the parameters of our legal system?
  2. What opportunities are there for HM Government or the courts to improve the quality and speed of the legal procedure in DWA cases, including appeals, whilst assuring that the subjects get appropriate legal protection?
  3. How do legal and procedural conditions imposed upon the exercise of DWA by domestic and international courts impact upon the effectiveness of the policy, and what can be done to influence the future development of such conditions or to give them effect consistently with the fair and efficient operation of DWA?
  4. In developing DWA arrangements with other countries, allowing for the fact that arrangements are specific to countries and individual subjects, what are the key considerations that HM Government should take into account in relation to the safety on return processes, including conducting assessments and the development of verification mechanisms?
  5. Is enough done to distinguish the risks different categories of persons might face on return to a particular country, or must assurances always be obtained in respect of certain countries for all potential DWA subjects?
  6. Given that concerns often relate to the initial period of detention on return and the risk of future detention and/or prosecution, could the likelihood of these eventualites be more effectively assessed and, if appropriate reduced, in advance of removal, including by improved engagement with the individual’s home authorities?

Written evidence should be submitted to me by 7 February 2014 at the following email address: independent.reviewer@brickcourt.co.uk.