"B" & Ors, R (on the application of) v Secretary of State for the Foreign & Commonwealth Office [2004] EWCA Civ 1344

“Children in immigration detention for long periods of time are at high risk of serious mental harm. The Commonwealth’s failure to implement the repeated recommendations by mental health professionals that certain children be removed from the detention environment with their parents, amounted to cruel, inhumane and degrading treatment of those children in detention.”

“I request asylum, refugee and humanitarian protection from the Government of the United Kingdom of Great Britain. Please bring our urgent request to the immediate attention of your High Commissioner or his or her most senior representative. The United Kingdom of Great Britain is a signatory to the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol relating to the status of Refugees. The United Kingdom of Great Britain is also a signatory to other international human rights instruments that apply to my case including but not limited to the Universal Declaration of Human Rights, the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, the United Nations Convention Against Torture and other Forms of Cruel, Inhuman and Degrading Punishment and the International Covenant on Economic, Social and Cultural Rights. The United Kingdom of Great Britain is represented on the Executive Committee (EXCOM) of the United Nations High Commissioner for Refugees (UNHCR). The United Kingdom of Great Britain is also a party to the European Convention of Human Rights which now forms part of the domestic law of the United Kingdom through the passage of the Human Rights Act 1998. We request that you abide by the very important international and domestic human rights and refugee law principles which the government of the United Kingdom of Great Britain has entered into and not remove either myself or my brother from this consulate or embassy. ”

“Alamdar has related a catalogue of incidents of an extremely traumatic nature which he has either directly experienced or witnessed. Alamdar has witnessed numerous riots at Woomera and has been himself repeatedly exposed to tear gas and water cannons. On one occasion when ACM were deploying tear gas canisters in Woomera Alamdar found a live canister which was emitting tear gas in Donga (accommodation hut) No.18 where his uncle was sleeping. Alamdar immediately grabbed a blanket that he placed over the live canister and threw it out of the donga. He has described the experience of being exposed to tear gas as akin to being ‘blinded – I cannot see and I cannot breathe’. On another occasion Alamdar was located near the perimeter fence when a disturbance was in progress. Alamdar relates an incident when an ACM officer using his shield pushed him into razor wire near the perimeter fence. Alamdar sustained a laceration to his right forearm from contact with the razor wire. A raised and healed scar on the right forearm is clearly visible and distinguishable from other scars, which have been the results of acts of self-harm. Alamdar has frequently engaged in acts of self-harm while at Woomera. Previous to his detention in Woomera Alamdar had never self-harmed. Alamdar has cut both his arms using razor blades and has engaged in two prolonged hunger strikes. Furthermore Alamdar has recounted graphic eyewitness accounts of acts of self-harm and attempted suicide undertaken by other detainees in close proximity to him. These include witnessing approximately ten hanging attempts, incidents of self-harm involving detainees swallowing shampoo and detainees swallowing splinters of glass from broken light globes. Alamdar also witnessed detainees lying on coils of razor wire as a form of protest and self-harm. Alamdar witnessed his uncle leaping from the top of a building into razor wire coils in the perimeter fencing in a desperate attempt to draw attention to the family’s plight in detention. The uncle sustained very serious injuries, which required over one hundred stitches. Alamdar recounts memories of the mental collapse of other detainees: ‘they were going crazy’ and the practice of isolating detainees at risk of suicide and self-harm in isolation rooms that are understood to be attached to the medical centre. Alamdar explained that while placed in these rooms the air conditioning was left switched on thus creating freezing conditions for the detainees. These rooms are fitted with close circuit television camera (CCTV) for constant visual surveillance. Alamdar explains that this regime was employed as a de facto punishment and deterrent for detainees not to self-harm in the future.”

“While in Woomera, Muntazar has attempted to hang himself on two occasions; once prior to Easter and once after Easter. On both occasions he utilised a bed sheet and attempted to hang himself once on playground equipment and on the other occasion from a tree. He was rescued by ACM staff and treated in the medical centre and on one occasion transferred to the Woomera hospital before being returned to the detention centre. After his hanging attempts Muntazar advises that former Woomera psychologists Harry Bilboe and Lynne Bender counselled him. Muntazar continues to complain of back pain (mid-lumbar) flowing from injuries sustained in one of the hanging attempts. He has also engaged in other forms of self-harm, namely self-inflicted cuts to the forearms that appear to have healed substantially. Muntazar has also been repeatedly exposed to tear gas and water cannon. In one instance Muntazar recalls a live tear gas canister landing in close proximity to an elderly female detainee and that he grabbed the canister and threw it away. On another occasion Muntazar relates that during a disturbance he was struck on the hand by an ACM officer wielding a baton. A raised scar is clearly visible at the base of his right index finger on the right hand. Impact of indeterminate Detention on the Family Unit: Muntazar reports that his family has become progressively sadder in detention. He reports that one of his sisters has learnt how to self-harm in detention. He also was an eyewitness to his Uncle’s leap from a building into the razor wire coils. This incident was captured by national and international news media. Muntazar gravely fears the loss of his own and his siblings’ opportunity for formal education. He is very articulate in equating the losses of opportunities for formal education because of his detention with the learning of new things like self-harm: ‘we wouldn’t have learned these things if we were free. I saw everything – I never saw anything like this (Woomera) in my country. I never dreamed that I would cut and hang myself – but now I know all these things’.”

“(a) A Declaration that the Secretary of State for the Foreign and Commonwealth Office, through his consular officers, acted unlawfully. (b) A mandatory order obliging the Secretary of State for the Foreign and Commonwealth Office to make available British Consular offices and/or other premises in Australia falling within UK jurisdiction to the claimants should they be able to return. (c) A mandatory order requiring the Secretary of State for the Foreign and Commonwealth Office to facilitate the claimants’ journey to the British consular and/or other premises falling within UK jurisdiction. (d) A mandatory order requiring the relevant UK authority to consider the claimants’ asylum applications. (e) Damages.”

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the Convention”

“The notion of jurisdiction is essentially territorial. However, the ECtHR has accepted that in exceptional cases acts of contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the ECHR: Öcalan v Turkey (2003) 37 EHRR 238, 274-275, para 93; Bankovic v Belgium (2001) 11 BHRC 435. The effect of the decision of the ECtHR in Soering v United Kingdom (1989) 11 EHRR 439 was that the extraditing or deporting state is itself liable for taking action the direct consequence of which is the exposure of an individual abroad to the real risk of proscribed treatment. The Court of Appeal rightly stated that Soering is an exception to the essentially territorial foundation of jurisdiction. It is important, however, to bear in mind that apart from specific bases of jurisdiction such as the flag of a ship on the high seas or consular premises abroad, there are exceptions of wider reach which can come into play. Thus contracting states are bound to secure the rights and freedoms under the ECHR to all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad: Cyprus v Turkey (1976) 4 EHRR 482, at p 586, para 8. Moreover, the doctrine of positive obligations under certain guarantees of the ECHR may in exceptional cases require states to protect individuals from exposure to foreseeable flagrant risks of violations of core guarantees caused by expulsions: D v United Kingdom (1997) 24 EHRR 423.”

“Whereas, in certain respects, the nationals of a Contracting State are within its “jurisdiction” even when domiciled or resident abroad; whereas, in particular, the diplomatic and consular representatives of their country of origin perform certain duties with regard to them which may, in certain circumstances, make that country liable in respect of the Convention.”

“What is at issue in the present case is whether Article 3 can be applicable when the adverse consequences of extradition are, or may be, suffered outside the jurisdiction of the extraditing State as a result of treatment or punishment administered in the receiving State.”

“It would hardly be compatible with the underlying values of the Convention, that ‘common heritage of political traditions, ideals, freedom and the rule of law’ to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3, would plainly be contrary to the spirit and intendment of the Article, and in the Court’s view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article.”

“The Commission notes that these complaints are directed mainly against Danish diplomatic authorities in the former DDR. It is clear, in this respect, from the constant jurisprudence of the Commission that authorised agents of a State, including diplomatic or consular agents, bring other persons or property within the jurisdiction of that State to the extent that they exercise authority over such persons or property. In so far as they affect such persons or property by their acts or omissions, the responsibility of the State is engaged. Therefore, in the present case the Commission is satisfied that the acts of the Danish ambassador complained of affected persons within the jurisdiction of the Danish authorities within the meaning of Article 1 of the Convention.”

“The Commission recalls, however, that an act or omission of a Party to the Convention may exceptionally engage the responsibility of that State for acts of a State not party to the Convention where the person in question had suffered or risks suffering a flagrant denial of the guarantees and rights secured to him under the Convention. The Commission finds, however, that what happened to the applicant at the hands of the DDR authorities cannot in the circumstances be considered to be so exceptional as to engage the responsibility of Denmark. ”

“As to the “ordinary meaning” of the relevant term in Article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial. While international law does not exclude a State’s exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States.”

“The Court is of the view, therefore, that Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case.”

“in sum, the case-law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.” “Additionally, the Court notes that other recognised instances of the extra-territorial exercise of jurisdiction by a State include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of that State. In these specific situations, customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant State.”

“The Court accepts that an arrest made by the authorities of one State on the territory of another State, without the consent of the latter, affects the person’s individual rights to security under Article 5 (1).”

“Directly after he had been handed over by the Kenyan officials to the Turkish officials the applicant was under effective Turkish authority and was therefore brought within the “jurisdiction” of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. The Court considers that the circumstances of the present case are distinguishable from those in the aforementioned Bankovic and Others case, notably in that the applicant was physically forced to return to Turkey by Turkish officials and was subject to their authority and control following his arrest and return to Turkey (see in this respect the aforementioned decisions in the cases of Illich Sanchez Ramirez v France and Freda v Italy).”

“The Court must decide in the light of the parties’ arguments whether the applicant’s detention in Kenya resulted from acts of the Turkish officials that violated Kenyan sovereignty and international law (as the applicant has submitted) or from cooperation between the Turkish and Kenyan authorities (as the Government have submitted).”

“… it was emphasised, however, that in so far as any liability under the Convention might be incurred in such circumstances it would be incurred by the expelling Contracting State by reason of its having taken action which had as a direct consequence the exposure of an individual to proscribed ill-treatment.”

“International law does not prevent a state from exercising jurisdiction, within its own territory, over its nationals travelling or residing abroad, since they remain under its personal authority. Accordingly, it may legislate with regard to their conduct when abroad, levy taxes in respect of their assets or earnings abroad, or legislate in respect of their foreign property. In all such cases, however, the state’s power to enforce its laws depends upon its national being in, or returning to, its territory or having there property against which they can be enforced.”

“s544 Consular functions in general Although consuls are appointed chiefly in the interests of commerce, industry, and navigation, they also perform many other functions. Custom, commercial and consular treaties, national laws, and national consular instructions prescribe detailed rules regarding these functions. The principal functions are promotion of commerce and industry, supervision of navigation, protection, and notarial functions. The receiving state must accord full facilities for the performance of the functions of a consular post.”

“Section 106. Presumption of United Kingdom extent Unless the contrary intention appears, Parliament is taken to intend an Act to extend to each territory of the United Kingdom but not to any territory outside the United Kingdom.” “Section 128. General principles as to application Unless the contrary intention appears, and subject to any privilege, immunity or disability arising under the law of the territory to which an enactment extends (that is within which it is law), and to any relevant rule of private international law, an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters.”

“Section I, which comprises arts 2-18, sets out the substantive rights that are guaranteed by the Convention. Article 1 is not incorporated into the domestic law of the United Kingdom by the Human Rights Act 1998. The reason for that is obvious; art 1 is the provision that renders the Convention binding on the high contracting parties but it does not of itself confer any specific rights on persons who find themselves within the jurisdiction of any high contacting party. Thus it has no place in domestic law. Nevertheless, it is appropriate for the court to have regard to art 1 in considering the scope of the United Kingdom’s obligations under the Convention because that is the provision that defines the obligations undertaken by the United Kingdom as a high contracting party. In particular, it is clear that art 1 defines the geographical or other extent of the obligations so undertaken by the United Kingdom and other contracting parties.”

“In any event, the direct concern in this case is not the territorial scope of the European Convention, but rights and duties arising under the Human Rights Act 1998 through which alone the European Convention has an effect in domestic law. As to that, I accept the submissions advanced by Mr Sales that the 1998 Act extends, with limited exceptions, only to the territory of the United Kingdom. The usual presumption as to the territorial scope of an Act of Parliament applies. It is reinforced by the specific extension of the territorial scope of the Act to Northern Ireland by Section 22(6) and by the further limited extension of the Act in Section 22(7).”

“…to keep clearly in mind the distinction between (1) rights arising under the Convention and (2) rights created by the 1998 Act by reference to the Convention. These two sets of rights now exist side by side. But there are significant differences between them. The former existed before the enactment of the 1998 Act and they continue to exist. They are not as such part of this country’s law because the Convention does not form part of this country’s law. That is still the position. These rights, arising under the Convention, are to be contrasted with rights created by the 1998 Act. The latter came into existence for the first time on 2 October 2000. They are part of this country’s law. The extent of these rights, created as they were by the 1998 Act, depends upon the proper interpretation of that Act. It by no means follows that the continuing existence of a right arising under the Convention in respect of an act occurring before the 1998 Act came into force will be mirrored by a corresponding right created by the 1998 Act. Whether it finds reflection in this way in the 1998 Act depends upon the proper interpretation of the 1998 Act ”

“It should no longer be necessary to cite authority for the proposition that the Convention, as an international treaty, is not part of English domestic law. R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696 and R v Lyons [2003] 1 AC 976 are two instances of its affirmation in your Lordships’ House. That proposition has been in no way altered or amended by the 1998 Act. Although people sometimes speak of the Convention having been incorporated into domestic law, that is a misleading metaphor. What the Act has done is to create domestic rights expressed in the same terms as those contained in the Convention. But they are domestic rights, not international rights. Their source is the statute, not the Convention. They are available against specific public authorities, not the United Kingdom as a state. And their meaning and application is a matter for domestic courts, not the court in Strasbourg.”

“Bringing Rights Home 1.18 We therefore believe that the time has come to enable people to enforce their Convention rights against the State in the British courts, rather than having to incur the delays and expense which are involved in taking a case to the European Human Rights Commission and Court in Strasbourg and which may altogether deter some people from pursuing their rights. Enabling courts in the United Kingdom to rule on the application of the Convention will also help to influence the development of case law on the Convention by the European Court of Human Rights on the basis of familiarity with our laws and customs and of sensitivity to practices and procedures in the United Kingdom. Our courts’ decisions will provide the European Court with a useful source of information and reasoning for its own decisions.”

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”

“…an act or omission of a Party to the Convention may exceptionally engage the responsibility of that State for acts of a State not party to the Convention where the person in question had suffered or risks suffering a flagrant denial of the guarantees and rights secured to him under the Convention.”

“s495 So-called diplomatic asylum The practice of granting diplomatic asylum in exceptional circumstances is of long-standing, but it is a matter of dispute to what extent it forms part of general international law. There would seem to be no general obligation on the part of the receiving state to grant an ambassador the right of affording asylum to a refugee, whether criminal or other, not belonging to this mission. Of course, an ambassador need not deny entrance to refugees seeking safety in the embassy. But as the International Court of Justice noted in the Asylum case …. in the absence of an established legal basis, such as is afforded by treaty or established custom, a refugee must be surrendered to the territorial authorities at their request and if surrender is refused, coercive measures may be taken to induce it. Bearing in mind the inviolability of embassy premises, the permissible limits of such measures are not clear. The embassy may be surrounded by soldiers, and ingress and egress prevented; but the legitimacy of forcing an entry in order forcibly to remove the refugee is doubtful, and measures involving an attack on the envoy’s person would clearly be unlawful. Coercive measures are in any case justifiable only in an urgent case, and after the envoy has in vain been requested to surrender the refugee. It is sometimes suggested that there is, exceptionally, a right to grant asylum on grounds of urgent and compelling reasons of humanity, usually involving the refugee’s life being in imminent jeopardy from arbitrary action. The practice of states has afforded instances of the grant of asylum in such circumstances. The grant of asylum ‘against the violent and disorderly action of irresponsible sections of the population’ is a legal right which, on grounds of humanity, may be exercised irrespective of treaty; the territorial authorities are bound to grant full protection to a diplomatic mission providing shelter for refugees in such circumstances. There is some uncertainty how far compelling reasons of humanity may justify the grant of asylum in other cases. The International Court’s judgment in the Asylum case suggests that the grant of asylum may be justified where ‘in the guise of justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of justice were corrupted by measures clearly prompted by political aims’. However, the Court went on to emphasise that ‘the safety which arises out of asylum cannot be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted tribunals’. Thus it would seem not to be enough to show that a refugee is to be tried for a ‘political’ offence: it must be shown that justice would be subordinated to political dictation and the usual judicial guarantees disregarded. Even where permissible, asylum is only a temporary expedient and may only be afforded so long as the reasons justifying it continue to subsist.”

“The arguments submitted in this respect reveal a confusion between territorial asylum (extradition), on the one hand, and diplomatic asylum, on the other. In the case of extradition, the refugee is within the territory of the State of refuge. A decision with regard to extradition implies only the normal exercise of the territorial sovereignty. The refugee is outside the territory of the State where the offence was committed, and a decision to grant him asylum in no way derogates from the sovereignty of that State. In the case of diplomatic asylum, the refugee is within the territory of the State where the offence was committed. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of the State. Such a derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case.”

“There exists no universally accepted international agreement to assure a uniform response by states to grant refuge in a mission in an emergency. Most countries, with the exception of those in Latin America, deny outright the claim to diplomatic asylum because it encroaches upon the state’s sovereignty. Some countries give limited recognition to the practice, allowing “temporary safe stay” on a case-by-case basis to persons under threat of life and limb. It should be recognised that a state has the permissible response of granting temporary sanctuary to individuals or groups in utter desperation who face repressive measures in their home countries. Moreover, this should be considered a basic human right, to be invoked by those fleeing from the persecution for reasons of race, religion, or nationality, or for holding a political opinion in an emergency situation involving the threat of violence.”

“DIMA (Department of Immigration and Multicultural Affairs) is aware of the consequences of long-term detention and has incorporated into its detention standards requirements for ACM staff to be trained to recognise and deal with symptoms of depression and psychiatric disorders and to minimise the potential for detainees to inflict self-harm. However, it would appear to be a growing source of problems and unrest within the detention environment.”

“… DIMA has a duty of care to ensure that detainees are kept and maintained in a safe and secure environment. The report of the Parliamentary Joint Standing Committee on Migration titled Immigration Detention Centres Inspection Report supported this view when it stated that “… the Australian Government and ACM, as service provider, have a duty of care to detainees and all actions relating to the detention and care of detainees must be consistent with the relevant Commonwealth and State laws”.”

“The official statistics provided to HREOC officers by ACM indicated the following incidents of self-harm occurred over a two week period: • Lip sewing: 5 children (one 14 year old sewed his lips twice) • Slashing: 3 children (the above child also slashed “freedom” into his forearm) • Ingestion of shampoo: 2 children • Attempted hanging: 1 child • Threats of self hurt: 13 children This is a significant proportion of the total child population of 236 at the Centre. It would indicate that, not unsurprisingly, children are responding to the atmosphere of despair in which they live. It is self-evident that manifestations such as these are likely to permanently mark the psychological outlook of these children. HREOC officers in discussion with ACM found no evidence of parents encouraging children to engage in acts of self harm. Interviews of HREOC officers with children produced many responses that indicated a propensity for self harm and suicidal thoughts. … … Woomera IRPC is now enveloped in a self-reinforcing miasma of despair and desperation, and there was a wide spread sense of despair due to the length of time in detention and the concomitant uncertainty over status. It is this uncertainty that asylum seekers have indicated is at the root cause of fire and property destruction in November and hunger strikes and incidents of self-harm in late January. This is not an appropriate environment for children. The Commission has written to Immigration Minister Mr Philip Ruddock bringing these breaches to his attention. The Commission now awaits the Minster’s response as to how these breaches will be immediately rectified.”