THE RENAISSANCE OF NON-REFOULEMENT? THE OTHMAN (ABU QATADA) DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS

On 17 January 2012 the European Court of Human Rights (ECtHR) handed down its judgment in Othman (Abu Qatada) v United Kingdom.1 Abu Qatada, a radical Muslim cleric once described as ‘Osama bin Laden's right-hand man in Europe’, was convicted in absentia in Jordan for various terrorist offences.2 He alleges, however, that part of the evidence against him had been obtained under torture. In 1994 he was granted refugee status and permitted to remain in the United Kingdom (UK) temporarily. Qatada later applied for indefinite leave to stay. While his application was pending, he was arrested in October 2002 and detained without charge or trial under the now-repealed Part 4 of the Anti-terrorism, Crime and Security Act 2001. In March 2005 he was released from detention and put under a ‘control order’ under the Prevention of Terrorism Act 2005. A few months later, the UK government sought to deport Qatada to his native Jordan, having first concluded a Memorandum of Understanding (MoU) with the Jordanian government that he would not be subjected to torture or ill-treatment contrary to Article 3 of the European Convention on Human Rights (ECHR). The deportation order was challenged before English courts, but ultimately upheld by the House of Lords in RB (FC) and Another v Secretary of State for the Home Department and OO v Secretary of State for the Home Department in 2009.3 In contrast, the ECtHR ruled unanimously that the UK could not lawfully deport Qatada to Jordan. The decision was criticized by Home Secretary Theresa May as ‘unacceptable’ and predictably led to several Conservative backbenchers in the House of Commons calling on the government to withdraw from the ECHR.4