ECtHR intervenes in deportation of alleged IS recruiter

The European Court of Human Rights (ECtHR) has intervened in a case before the Court of Appeal concerning the State’s efforts to deport an individual alleged to be the “foremost organiser and facilitator of travel by extremists” to carry out violence on behalf of Islamic State (IS).

The man, who cannot be named for legal reasons, is contesting a deportation order made against him on the grounds of Article 3 of the European Convention of Human Rights (ECHR). His legal team allege that he faces risk of being tortured if he is deported to a Middle Eastern country, which also cannot be named. The man has lived in Ireland for the last 15 years and had initially secured residency based on the birth of his son. However he was informed last March that the authorities intended to deport him. He was ordered to leave the State by 30 December 2015, prompting him to take legal action.

As there is no automatic stay under Irish law on deportation orders where there is the potential that Article 3 ECHR may be breached, the defendant petitioned the ECtHR for an interim order postponing his deportation. The order was granted sooner than expected, allowing the Irish courts to adjourn the case to a later date to consider this.

The case highlights the balancing act the courts must adopt in considering deportations when faced with competing claims of national security and protection from torture. The 1989 landmark ECtHR case of Soering v UK first established the precedent that the extradition of a person to a country where there are substantial grounds to believe that person will face a real risk of torture or ill treatment otherwise proscribed by Article 3 ECHR, in itself constitutes a violation of Article 3. This understanding of Article 3 is in keeping with the long established international ban on torture as laid out in the United Nations Convention against Torture. The ECtHR has reinforced this principle in subsequent judgments – in the cases of Chahal v UK and Saadi v UK – holding that it is absolute and cannot be overridden regardless of the threat an individual may pose to the national security of the host state. As a signatory of the ECHR, Ireland is bound by this interpretation of Article 3.

Where a State faces potential threats to national security from an individual, deportation is often their preferred method of dealing with this. Given the secrecy and potential inadmissibility that will surround the evidence alleging the security risk an individual poses to the State and the absolute nature of Article 3, it can be extremely difficult for states to carry out these deportations. The cases of Muslim ‘hate preachers’ Abu Hamza and Abu Qatada in the UK provide recent examples of the balance between national security concerns and the State’s duty to uphold Article 3. This frustration on the part of many states has led to bilateral agreements being drafted with receiving states in the form of ‘Deportations with Assurances’ and the establishment of specialised closed evidence tribunals such as the Special Immigration Appeals Commission in the UK.

Once back before the Court of Appeal, the case is likely to turn on whether the alleged IS recruiter’s legal team can effectively establish grounds to believe he will be at risk of being subjected to torture on his return to the receiving Middle Eastern state. It has been adjourned until the 13 January.

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