Abu Qatada deadline: Why it matters

 
Abu Qatada Abu Qatada faces a retrial in Jordan for plotting bomb attacks against American and Israeli tourists

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The latest row over Abu Qatada has been a delight for headline writers - but does any of it really matter?

Yes, it does. The question of who was right on the expiry of the deadline is extremely complicated - I'll be writing some more on that later - but if Abu Qatada has secured a final review of his case in Europe, it has the potential to derail not just his deportation but many others too.

On 17 January, the European Court of Human Rights blocked Abu Qatada's deportation on one very narrow issue. The judges said he could not be returned to Jordan because he could face a trial that involved testimony against him extracted under torture.

Courts across Europe, including the UK's, have long banned evidence obtained by torture because people will sign all sorts of confessions to stop the pain.

So Strasbourg said Abu Qatada's could be an unfair trial and therefore he could not be chucked out until Jordan had given an assurance that there would be no such evidence in his trial.

Now, it is critically important to remember that Strasbourg ruled that on all other grounds, the British government had the right to deport the cleric because Jordan had given satisfactory pledges that the man himself would not be ill-treated.

Start Quote

[A referral to the Grand Chamber] would risk reopening our wider policy of seeking assurances about the treatment of terror suspects in their home countries ”

End Quote Theresa May, 17 April

So London asked Amman for a copper-bottomed assurance that any possible trial would be fair and free of evidence tainted by torture. And as far as they are concerned, they got that piece of paper.

In the meantime, the European Court clock was ticking. When it gives a ruling, both parties have three months in which they can ask the Grand Chamber, the highest part of the court, to review the case one last time. Once that deadline passes, the judgement stands.

On Tuesday, the home secretary was working on the basis that the deadline had passed and that is why she came to Parliament to brief MPs on the next steps.

In short, the government had accepted the European Court's ruling from 17 January because it had not sought to make an appeal to the Grand Chamber.

That meant if ministers wanted to deport Abu Qatada, they would only need judges to approve of Jordan's new assurance of a fair trial because - and this is the key point - Europe had already signed off on every other element of the deportation.

So, amid all the faff and headlines, the Home Office was in the driving seat. Its top lawyers would take the new assurance to the deportation judge at London's Special Immigration Appeals Commission.

Assuming they won there, Abu Qatada could try to take the case to the Court of Appeal and possibly the Supreme Court but he would have pretty narrow grounds to do so. And that is why the home secretary was in a confident mood in the Commons - even if she wasn't nipping down the betting shop to put a tenner on deportation before Christmas.

But now that's all changed - and ministers are facing a potentially massive problem.

If a case is taken up by the Grand Chamber of the European Court, the judges don't necessarily just look at specific or narrow points of complaint. They can, in theory, look at the entire case.

Theresa May put it this way to MPs on Tuesday: "The other option available to us, which is to refer the case to the Grand Chamber… could take even longer and would risk reopening our wider policy of seeking assurances about the treatment of terror suspects in their home countries.

"That policy was upheld by the European Court's judgement in January, and it is crucial if we want to be able to deport terror suspects to countries where the courts have concerns about their treatment. There are 15 other such cases pending. I confirm that the government have therefore not referred the Abu Qatada case to the Grand Chamber."

In other words, a Grand Chamber judgement could go against the UK on any of the grounds in the case - even if those have already been hammered down and dealt with in the past. In the worst-case scenario, it could blow a hole in the government's broader deportation strategy.

That would mean it wouldn't just be Abu Qatada knocking on his prison cell door asking to come out.

In practice the Grand Chamber rarely intervenes or overturns an earlier judgement - but the risk is there, and that's why the referral to the highest part of the European Court is such a big deal.

 
Dominic Casciani Article written by Dominic Casciani Dominic Casciani Home affairs correspondent

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  • rate this
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    Comment number 164.

    If T May had the confidence to rely upon the advice of government lawyers without consulting an expert (academic or otherwise) on EU law then she will have no option but to resign given the potential consequences of the review.

    Govt lawyers insisted on 16 April midnight as the deadline undoubtedly because that's how the CPR provides rules on counting time - did they even consider EU law?

  • rate this
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    Comment number 163.

    Why was he ever allowed to stay - changes required!
    According to the timeline he applied for indefinite leave to remain in Britain in May 1998, 3 years after he'd issued a fatwa justifying the killing of converts from Islam... Why was he allowed to stay.
    Should have to sign a binding contract to agree unconditionally to deportation if they behave badly - seriously break laws or profess hatred etc.

  • rate this
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    Comment number 162.

    surely everyone knew Abu Qatada would put in an 11th hour appeal, why wouldn't he if it further delays his deportation? It seems that although the Home Office were naive about this, they couldn't have stopped this appeal from going through. He is now behind bars for a few weeks at least which has to be a good thing.

  • rate this
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    Comment number 161.

    What the 'kick him out' brigade don't realise is that these so called european laws that they moan about are enshrined in British Law. There have been many cases over the past decade or so where ruling are overturned because the Government can't abide by its own laws.

  • rate this
    0

    Comment number 160.

    158.Zalimbekir

    Catgate scandal, Timegate scandal, Theresa resign.
    --
    Whether it was midnight on the 17th, or 18th, it's certainly not the 16th!

    It's inconceivable that the legal teams at the Home Office do not understand how the European Convention on the Calculation of Time-Limits works.

    A FoI request to see what Legal advice May was given as to the deadline might be interesting...

 

Comments 5 of 164

 

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