A v Secretary of State for the Home Department [2002] EWCA Civ 1502

Foreign nationals suspected of terrorism were detained under the Anti-Terrorism, Crime and Security Act 2001 following the 9/11 attacks. The Court of Appeal allowed the Secretary of State's appeal, holding that detention of non-nationals alone was not discriminatory as they were in a different legal position from British nationals regarding immigration status.

Facts

Following the terrorist attacks on 11 September 2001 in the United States, the UK Government introduced the Human Rights Act 1998 (Designated Derogation) Order 2001 and the Anti-Terrorism, Crime and Security Act 2001 (ATCSA). These measures permitted the indefinite detention of foreign nationals suspected of involvement in international terrorism where they could not be deported (for example, because deportation would expose them to torture contrary to Article 3 ECHR). Eleven individuals were detained under these provisions, and nine appealed to the Special Immigration Appeals Commission (SIAC).

SIAC’s Decision

SIAC quashed the Derogation Order and declared section 23 of ATCSA incompatible with Articles 5 and 14 ECHR, finding the measures discriminatory because they applied only to foreign nationals while British nationals suspected of terrorism could not be similarly detained.

Issues

The principal issues before the Court of Appeal were:

• Whether there existed a public emergency threatening the life of the nation within Article 15 ECHR
• Whether the measures taken were strictly required by the exigencies of the situation
• Whether the differential treatment between foreign nationals and British nationals constituted unlawful discrimination contrary to Article 14 read with Article 5 ECHR

Judgment

Public Emergency

The Court upheld SIAC’s finding that a public emergency threatening the life of the nation existed. Lord Woolf CJ stated at paragraph 33:

We have also scrutinised all the material put before us with care… We are satisfied that what has been put before us… does justify the conclusion that there does exist a public emergency threatening the life of the nation within the terms of Article 15.

Discrimination

The Court of Appeal disagreed with SIAC on the discrimination issue. Lord Woolf CJ held at paragraph 47:

It is an over-simplification because the position here is that the Secretary of State has come to the conclusion that he can achieve what is necessary by either detaining or deporting only the terrorists who are aliens. If the Secretary of State has come to that conclusion, then the critical question is, are there objective, justifiable and relevant grounds for selecting only the alien terrorists, or is the discrimination on the grounds of nationality?

The Court found that foreign nationals who cannot be deported have only a right not to be removed (to protect them from Article 3 treatment), not a right to remain, distinguishing them from British nationals who have an unconditional right of abode.

International Law

Brooke LJ extensively reviewed international law principles, concluding at paragraph 132:

Both customary international law and the international treaties by which this country is bound give this country the right, in time of war or comparable public emergency, to detain non-nationals on national security grounds without necessarily being obliged to detain its own nationals, too.

Deference to the Executive

The Court emphasised the appropriate degree of deference to be accorded to the Executive in matters of national security. Brooke LJ stated at paragraph 87:

Unless one is willing to adopt a purist approach, saying that it is better that this country should be destroyed, together with the ideals it stands for, than that a single suspected terrorist should be detained without due process, it seems to me inevitable that the judiciary must be willing… to put an appropriate degree of trust in the willingness and capacity of ministers and Parliament.

Implications

This decision affirmed the Government’s power to detain foreign national terrorist suspects without extending the same power to British nationals, provided there was objective justification based on immigration status rather than nationality per se. The judgment established important principles regarding judicial deference to the Executive in matters of national security while maintaining the courts’ supervisory role under the Human Rights Act 1998. The case demonstrated the tension between Article 15 ECHR (requiring measures no more than strictly necessary) and Article 14 (prohibiting discrimination), with the Court resolving this by finding that limiting measures to foreign nationals could itself be a proportionate response.

Verdict: Appeal allowed. The Court of Appeal unanimously allowed the Secretary of State’s appeal, set aside SIAC’s order quashing the Derogation Order, and dismissed the cross-appeals by the respondents.

Source: A v Secretary of State for the Home Department [2002] EWCA Civ 1502