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

Date01 January 2007
An Evaluation of the Use of
Memorandums of Understanding in
the Removal of Terror Suspects and the
Prohibition Against Non-refoulement
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
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)
10 Special Immigration Appeals Tribunal Act, 1997 c68 (UK)

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