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UK: Egyptian
national “unlawfully detained” after intervention by Prime Minister
"We should use
whatever assurances the Egyptians are willing to offer, to build a
case to initiate the deportation procedure”,
Tony Blair’s office
- when the
Egyptian government rejects Foreign Office request for written
assurances - on the death penalty, ill-treatment, a fair and public
hearing and legal representation , Tony Blair writes: "Why do we
need all these things?"
In July 2004, Mr Youssef, an Egyptian
national, won his High Court case against the government for false
imprisonment after Justice Field ruled that the final two weeks of
his near ten-month detention, between 1998 and 1999, were unlawful.
Of particular interest, in this case, are the Prime Minister's
frequent interventions against the advice of his Home Secretary,
Jack Straw, and officials. As documentation cited in the judgement
shows, Youssef remained in detention along with three other Egyptian
nationals, after 3 June 1999, largely because of the Prime
Minister's intransigence regarding the legal requirements of the
case. Furthermore, the case serves to demonstrate the role of
political considerations in handling cases sensitive to bilateral
relations between two countries, arguably at the cost of the
detainee.
The power to detain is predicated on the ability to deport, but to
do so the government would need to fulfil its responsibility of
ensuring that the Article 3 rights (of the Convention for the
Protection of Human Rights) of the defendants would not be breached.
Thus they would either have to be removed to a safe third country or
assurances would be required from the Egyptian government that
Youssef would not face torture or other human rights violations
should he be returned. Moreover, these assurances would need to
satisfy a court both of their validity and comprehensiveness. This
was never likely to be an easy task in the face of a damning Amnesty
International Country Report and a UN Committee Against Torture
report, from May 1996, which claimed "that torture is systematically
practised by the security forces in Egypt" and argued "the
Government should make particular efforts to prevent its security
forces from acting as a State within a State, for they seem to
escape control by superior authorities".
The detention of the four men was justified only whilst there
existed a legitimate chance of either one of these eventualities
taking place, but arguably, by 3 June, there was not. The Home
Secretary, clearly aware of the now precarious legal basis for their
detention, was ready to release the four men and
accordingly asked the Prime Minister for a decision within 48 hours
as to whether he wished to pursue the matter personally with the
Egyptian President. Blair's response, coming 11 days later, "must
have come as a considerable shock to both the Home Office and the
FCO" (Foreign & Commonwealth Office) according to the judge. Blair
intended to replace a carefully constructed package of assurances
designed to fully guarantee the upholding of Article 3 with a single
"no torture" assurance. Moreover, Article 3 itself is non divisible.
A "no torture" assurance is incapable of also covering the "inhuman
or degrading treatment" aspect. Within 48 hours, two negative
letters from the FCO had undermined the proposal but it still took
almost a month for the detainees to be released.
What the judge termed an "entirely new strategy" was also entirely
unworkable. Not only would a single assurance never have a chance of
satisfying a court, but the Egyptians had already indicated that the
idea of a written assurance itself was objectionable. Just like his
proposal to take the matter up personally with the President of
Egypt, Blair failed to acknowledge that not only had the issue of
assurances already been considered at the highest level by officials
in the Home Office and Foreign Office, but their reluctance to
support his idea stemmed from the potential for humiliation should
the case go to court - a likely rejection, should they proceed with
the one assurance, on the basis of Egypt's human rights record,
would be embarrassing. Moreover, even had they provided all of the
original assurances there was still no guarantee a British court
would be satisfied of their validity. This was not an issue the
Egyptian government felt at ease with. In fact, as the FCO minute
dated 15 June shows, the pursuit of a single assurance would have
been
equally embarrassing for the British government. Having sponsored an
EU resolution encouraging countries to reject extradition requests
when no legitimate assurances against the employment of capital
punishment were in place, the Prime Minister would now be guilty of
encouraging just such a transgression.
But crucially the decision and responsibility lay with the Home
Secretary, not the Prime Minister, and having adopted a pragmatic
stance to the case throughout he was now at fault for entertaining
Blair's unworkable proposal. It was not even a suggestion he could
entertain because of the obligation to satisfy the detainees'
Article 3 rights. If somehow he did not know this himself, then he
should have been quickly enlightened by the FCO letters and advisors
within his own Office. Accordingly the judge found that "by 18 June
1999 the Home Office knew that the chances of persuading a court as
to the adequacy of a single non-torture assurance were bleak
indeed". It took him an inexplicable length of time to make, what
should have been, an easy rejection of the proposal. The judge held
that the Home Secretary should have reached a decision by 25 June at
the very latest.
Of particular interest is the
question of what motivated Blair's proposal and caused the delay in
the release of the detainees. It seems that as soon as it became
clear that the removal of the men was unlikely, the question of how
to present their release became paramount. The case became largely
about managing relations with the Egyptians and minimising political
embarrassment, as clearly expressed in the Prime Minister's Private
Secretary's 14 June letter in which he outlines Blair's desire to
let the courts shoulder the burden of release. We would assume that
the Prime Minister would not willingly seek the deportation of the
men in spite of the clear Article 3 risk, so the only rational
explanations are either that he was trying to abdicate
responsibility or that he was woefully ill informed. Either way, the
legality of detention was not of principal concern; rather the
interests of the state dwarfed those of the individual.
Chronology of key correspondence
6 May 1994
Youssef arrives in the UK, claims asylum and is granted "temporary
admission".
23 September 1998
Youssef is detained, along with three other Egyptian nationals,
under the Prevention of Terrorism Act and questioned about links
with Egyptian Islamic Jihad.
27 September 1998
Youssef is released and immediately rearrested under powers
contained in the Immigration Act and detained on the basis of
national security "pending a decision to give or refuse him leave
to enter".
3 December 1998
Special Immigration Appeals Commission judge refuses bail, having
been told his application would be decided within three weeks.
14 January 1999
Home Secretary (HS) informed by advisors that there is no safe
third country to which Youssef can be removed and that the
possibility of returning him, and the three other detainees, to
Egypt should be explored.
12 March 1999
Youssef's habeas corpus application is dismissed.
17 March 1999
Text of requested assurances telegraphed to the British Embassy in
Cairo. Included in the list are assurances against ill treatment
whilst in detention, a fair and public hearing in a civilian court,
access to legal representation and witness statements, that if
convicted of a capital offence the death penalty would be commuted,
and that during any term of imprisonment they would receive visits
from British Government officials and independent medical personnel.
22 March 1999
Egyptian Minister of the Interior rejects the request for written
assurances arguing that they would:
"constitute an interference in the scope [of] the Egyptian
judicial system and an infringement on Egyptian national
sovereignty."
1 April 1999
Letter sent to Prime Minister's (PM) Private Secretary (PS) from the
Home Office (HO) informing him of initial rejection. Letter read by
PM who wrote across the top:
"Get them back"
He also wrote next to the paragraph setting out the assurances Egypt
had objected to:
"This is a bit much. Why do we
need all these things?"
18 April 1999
Youssef sentenced, in absentia, to life imprisonment with hard
labour by an Egyptian Military Court.
19 April 1999
Letter from the PM's PS makes clear the PM's view that the "demands"
being placed on the Egyptians are excessive. The PM sees:
"no obvious reason why British
officials need to have access to Egyptian nationals held in prison
in Egypt, or why the four should have access to a UK-based lawyer".
5 May 1999
HS responds emphasising that: "any weakening of what we request
from the Egyptian authorities would reduce still further the slim
chance we have of effecting the group's removal". That there is
"ample evidence from a range of sources of serious human rights
abuses" and that "it would be unreasonable to argue,
without assurances, that the four would not face an Article 3 risk
if returned to Egypt". Furthermore he claimed that three of
the four men had submitted plausible claims of suffering torture,
and that there could be no flexibility on the issue of access if
returned. Thus if such assurances are not given "there is
probably very little scope for pushing deportations any further".
PM writes on the letter: "This
is crazy. Why can't we press on? Let us see how Egyptians respond".
28 May 1999
Letter from the PM's PS to the FCO maintains that the PM "remains
very keen for us to be able to deport the four to Egypt"
and that the next step should be for him to "write to President
Mubarak himself setting out our willingness to deport the four and
the assurances we need to achieve that".
1 June 1999
Final request for assurances was met with rejection by the Egyptian
government.
3 June 1999
HS writes to PM confirming that "the Egyptians see no future in
discussions on assurances" and that "you should now write to
President Mubarak; but that you should not press him further about
assurances." He affirms that:
"Once there is no possibility of receiving assurances the men
will have to be released as there would no longer be any basis for
their continued detention or deportation. I can continue to detain
the men while you consider the Foreign Office advice although an
early decision within 48 hours would be appreciated."
4 June 1999
PM's PS writes to the HS's PS and informs him that the PM has not
yet reached a decision and wishes "to reflect further, and to
discuss with others".
14 June 1999
PM's PS writes to the Foreign Secretary's PS and informs him of the
PM's view that:
"We should use whatever assurances the Egyptians are willing
to offer, to build a case to initiate the deportation procedure and
to take our chance in the courts. If the courts rule that the
assurances we have are inadequate, then at least it will be the
courts, not the Government, who will be responsible for releasing
the four from detention.
The Prime Minister's view is that we should now revert to the
Egyptians to seek just one assurance, namely that the four
individuals, if deported to Egypt, would not be subjected to
torture. Given that torture is banned under Egyptian law, it should
not be difficult to give such an undertaking."
Argues further that an independent expert witness would be needed to
back up the suitability of such an assurance.
15 June 1999
Minute from FCO official to head of North Africa Section in FCO's
Near East and North Africa Dept alerting him of the potential
political embarrassment if a death penalty assurance is not sought.
This is because earlier in the year the government had co-sponsored
a successful EU resolution at the Commission of Human Rights
regarding the right to reject an extradition request in the absence
of legitimate assurances that capital punishment will not take
place.
16 June 1999
Letter from Counter-Terrorism Policy Department of FCO to HO
confirming the limitations of seeking a single assurance and arguing
that there exists no realistic possibility of finding a credible
independent expert to substantiate Egyptian assurances.
16 June 1999
Head of Egyptian intelligence confirms that any kind of formal
written assurance is unacceptable.
18 June 1999
Application for habeas corpus
made by one of the other Egyptian detainees adjourned for four
weeks. Home Office directed to serve their evidence in reply in
three weeks time, on 9 July.
23 June 1999
Telegram from British Ambassador in
Cairo outlining Egyptian desire not to have a potentially
embarrassing public discussion of Egypt's human rights record in the
British courts.
5 July 1999
Minute from HO official to HS
confirming that there has been no progress in discussions since 2
June, and that it is highly unlikely that the Egyptians would be
willing to give even a single assurance.
9 July 1999
Youssef and the three other detainees are released.
30 July 2004
Justice Field rules that Youssef "was unlawfully detained
for the period 25 June 1999 to 9 July, a period of 14 days".
Sources:
1. Amnesty International 1997 Country
Report
2. UN Committee Against Torture 3 May 1996
3. Judgement available:
http://www.courtservice.gov.uk/judgmentsfiles/j2758/youssef-v-home_office.htm
4. Egyptian
national "unlawfully detained" after intervention by Prime MinisterJ
(pdf, from Statewatch bulletin |
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