An Evaluation of the Use of Memorandums of Understanding in the Removal of Terror Suspects and the Prohibition Against Non-refoulement

• Date: 01 January 2007

An Evaluation of the Use of

Memorandums of Understanding in

the Removal of Terror Suspects and the

Prohibition Against Non-refoulement

ORLA VEALE MARTIN*

Introduction

There is an increasing trend in Europe and North America to return persons

seeking asylum to their countries of origin where these persons are seen as

threats to national security as a result of their suspected involvement in

terrorism. Given that the ban on torture is absolute and transfers to risk of

torture are illegal under international refugee conventions, some sending

governments have sought “diplomatic assurances” from the receiving

country that the suspects would not be tortured or ill-treated upon return.

These assurances from the receiving states are to the effect that those

transferred would receive humane treatment in keeping with international

human rights obligations.

In the case of the UK, the use of such diplomatic assurances came about

in response to the finding by the House of Lords that the indefinite deten-

tion measures put in place for those suspected of involvement in terrorism,

was in breach of the UK’s obligations under Article 3 of the European

Convention on Human Rights (the Belmarsh decision).1Following this

decision, the UK government began to look at the possibility of other meas-

ures to combat terrorism.2One option mooted was the use of diplomatic

assurances to deport terrorist suspects to their state of origin.3Shortly there-

after, the UK government began to negotiate “no torture, no ill-treatment”

Memorandums of Understanding (hereinafter MOUs) to implement these

diplomatic assurances. A Memorandum of Understanding is a document

describing a bilateral agreement between parties, which expresses a con-

vergence of will between the parties rather than a legal commitment.4

* Orla Veale Martin LLB (Trinity) LLM (UCD), Trainee Solicitor with Matheson Ormsby

Prentice

1A and Others (No. 2) v SSHD [2005] UKHL 71

2Hansard HC Debates, 25 January 2005, Col 307

3Earlier attempts to deport on the basis of diplomatic assurances were not so favourably

regarded by the Foreign and Commonwealth Office and the courts; eg in Youssef v

Home Office [2004] EWHC 1884 (QB) the Foreign and Commonwealth Office

undermined the seeking of a no torture assurance from the Egyptian authorities.

4MOUs are a more formal alternative to a gentleman’s agreement but generally lack

This article aims to address the mixed response given to the use of MOUs

in the context of deportation of those who allegedly pose a security risk, in

particular the two divergent decisions from the Special Immigration Appeals

Commission5in the UK, one upholding and the other disallowing the

deportation of the appellant on the basis of an MOU. In the first judicial

adjudication on the UK Government’s use of “no torture no ill-treatment”

MOUs, Othman v Secretary of State for the Home Department,6the Special

Immigration Appeals Commission held that reliance on the MOU would

not evade the UK’s international human rights obligations, but in fact was

an attempt to adhere to international obligations when dealing with those

who ought to be deported.7In the second decision, DD and AS v Secretary

of State for the Home Department,8the Commission held that there was a

real risk that the receiving state would not adhere to the terms of the MOU.

The use of MOUs, and of diplomatic assurances in deportations gener-

ally, has drawn criticism from international human rights organisations who

view the assurances as a “f‌ig leaf” to obscure the apparent circumvention of

human rights obligations, especially the principle of non-refoulement. The

latter principle prohibits the return of persons to a country where there are

substantial grounds for believing that they may in danger of being subjected

to torture or ill treatment.9Since the subject of MOUs cannot be discussed

in isolation from refoulement, this article will address the prohibition

against refoulement, its limitations and whether the use of MOUs could

ever satisfy the prohibition against refoulement.

Othman v Secretary of State for the Home Department

On 26 February 2007 the Special Immigration Appeals Commission in the

UK gave its ruling in the case of Omar Othman, more commonly known

under the name Abu Qatada. The Special Immigration Appeals Commission

(hereinafter the Commission) was established in 1997 with a specific

national security remit.10 In the case of Othman, the appeal lay to the

the binding power of a contract. In international relations, one of the advantages of

MOUs over treaties is that they can be put into effect in most countries without

requiring ratif‌ication. They are generally easier to modify and adapt than treaties and

can also be kept conf‌idential.

5The Special Immigration Appeals Commission is a superior court of record in the

United Kingdom that deals with appeals from persons deported by the Secretary of

State for the Home Department under various statutory powers. It was established by

the Special Immigration Appeals Commission Act, 1997

6Othman v Secretary of State for the Home Department, (Special Immigration

Appeals Commission, Appeal no. SC/15/2005, 26 February 2007)

7Ibid, para 493

8DD & AS v Secretary of State for the Home Department (Special Immigration

Appeals Commission, Appeal nos SC/42/2005 & SC/50/2005, 27 April 2007)

9Article 33 of the UN Convention Relating to the Status of Refugees, 1951

10 Special Immigration Appeals Tribunal Act, 1997 c68 (UK)

40 ORLA VEALE MARTIN