AP v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Sullivan,Lord Justice Maurice Kay,Lord Justice Wall,Lord Justice Carnwath |
| Judgment Date | 15 July 2009 |
| Neutral Citation | [2009] EWCA Civ 731,[2009] EWCA Civ 229 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 July 2009 |
| Docket Number | Case No: T1/2008/2144 + T1/2008/2431,Case No: T1/2008/2144; T1/2008/2431 |
[2009] EWCA Civ 229
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Keith)
Before: Lord Justice Waller and
Lord Justice Sullivan
Case No: T1/2008/2144; T1/2008/2431
Mr R Tam QC and Ms E Price (instructed by the Treasury Solicitor) appeared on behalf of the Appellant.
Mr E Fitzgerald QC and Ms K Markus (instructed by Messrs Wilson & Co) appeared on behalf of the Respondent.
Mr N Garnham QC (instructed by the Special Advocates Support Office) appeared as special advocate for the Respondent
(Approved By Court)
Lord Justice Waller:
This is an application for permission to appeal, first of all by the Secretary of State, and we have indicated that we are going to grant permission there. There were applications for permission to appeal by AP and we indicated that we were going to grant permission on what has been described and headed as the “no direction relocate AP to London” in the second appeal.
We however indicated at the commencement of today's nearing that we would need some persuasion to grant AP permission to appeal on the other points. I can say straight away that we are unpersuaded. What AP seeks to do firstly is to challenge the conclusion reached by the judge in relation to upholding the control order. The criticisms that are made relate to findings by the judge in certain areas. Thus the judge reviewed the evidence in relation to the attendance by AP at a camp in Cumbria. He also reviewed evidence in relation to the visit by AP to Mohammed Hamid's home for dinner, and what he found at the end of the review of that evidence was that:
“…for the reasons I have already given, I think that AP's presence at the camp in Cumbria and his not infrequent visits to Muhammad Hamid's home for dinner in the company of known terrorists are capable of raising justifiable concerns about AP's involvement in terrorism-related activities.”
It is said, as I understood the argument, that it simply was not open to the judge to make that finding at that stage.It seems to me that when one reads the previous paragraphs it certainly was open to the judge to make that finding at that stage, ie that there were justifiable concerns.
In any event what the judge is doing is reviewing the evidence bit by bit as to whether there is a need for a control order. He thus moves to the next area which relates to a visit of AP to Somalia. In the course of his findings in relation to that visit, he makes certain findings as to the fact that there was evidence that there were some training camps for terrorists in Somalia. He reviews AP's explanations as to why he went there, his explanations as to why he was reticent with his family, as to whether it was likely that AP would be going for religious reasons to Somalia, and he ultimately, after the review of all that evidence, says at paragraph 61:
“For all these reasons, there are, I think, real grounds for being highly sceptical about whether AP has told the truth about why he went to Somalia. Since Joseph Kebide and Muna Awel have their own reasons for saying the trip to Somalia was entirely innocent, the fact is that there is no truly independent corroborative evidence of AP's account. It is, of course, not for him to prove his 'innocence', but even if one puts to one side the profiles of his fellow travellers (because the Secretary has not vouchsafed in the materials the basis of the assessment that they were Islamic extremists), the strong suspicion that AP has deliberately concealed what he really went to Somalia for itself raises the suspicion that it had something to do with terrorism-related activity. His presence at the camp in Cumbria and the evidence of training camps for terrorists in Somalia raises at least the suspicion that he went there to undergo terrorist training of some kind.”
It is said that it was not open to the judge at that stage to reach those conclusions. It seems to me again it certainly was open to the judge to reach those conclusions, and, as is apparent from the last sentence of paragraph 61, what the judge is doing is putting all the matters together in order to see whether the facts lead to the conclusion that there is at least a suspicion that AP was involved in terrorist training.
Finally there is a criticism made of the judge's approach to T's evidence. It is said that there was evidence called on behalf of AP from a Mr Campbell which refuted some, indeed a deal of T's evidence. So it is then said that, T having been undermined in certain respects, the judge's approach to T's evidence and relying on any of it was in some way an error of law. I do not accept there was arguably any error of law.
In my view what in reality is being attempted is an appeal on the facts, and that is not open to AP in the Court of Appeal. In my view there is nothing in the criticisms that have been made of the judge's approach which should lead to AP getting permission to appeal to the Court of Appeal on those aspects.
AP then wishes to challenge the judge's ruling in relation to the admission in evidence of certain interview notes. The assertion by AP was that the evidence obtained by the two policemen which were noted down was obtained by a trick. That was the submission made to the judge, and the judge recognised that in civil proceedings there was no rule that evidence obtained by a trick should be excluded. The judge then considered very carefully whether it was right in the circumstances of this case to admit the evidence. Indeed there was an application by the Secretary of State to admit other evidence which the judge ruled should not be admitted. Having very carefully reviewed the matter, the judge admitted that evidence. What I think is submitted is that, although these are civil proceedings, because there are serious penal consequences there should be a rule excluding such evidence. In my view there is no such rule. This was an exercise of discretion by the judge as to whether this was evidence that should be admitted. He approached the matter with extreme care, and there is in my view no prospect of the Court of Appeal overruling his decision on that aspect.
The final aspect on which AP seeks permission to appeal insofar as we have not granted it relates to certain of the conditions imposed by the control order. The argument before the judge was that, when AP had previously been granted bail, conditions of a less stringent nature were imposed, and thus it was argued there was no basis on which it was right to make more stringent conditions so far as the control order was concerned. In my view the presence of previous bail conditions had very little relevance to what the judge was having to decide on this occasion. He was well aware of the less stringent bail conditions, and took the view that the more stringent conditions were ones that should be imposed in this case and, again, in my view there is no prospect of the Court of Appeal reversing him on that conclusion.
Thus AP I would refuse permission to appeal on the aspects with which I have just dealt.
Lord Justice SullivanLord Justice Sullivan:
I agree
Order: 2144: Application granted; 2431: Application granted in part
[2009] EWCA Civ 731
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (MR JUSTICE KEITH)
Royal Courts of Justice
Strand,
London, WC2A 2LL
lord Justice Carnwath
Lord Justice Wall and
Lord Justice Maurice Kay
Case No: T1/2008/2144 + T1/2008/2431
REF NO: PTA/26/2008
Mr Edward Fitzgerald CBE QC and Ms Kate Markus (instructed by Wilson & Co) for the Appellant
Mr Robin Tam QC (instructed by Treasury Solicitors) for the Respondent
Hearing date : 4 June 2009
Lord Justice Maurice Kay :
AP is an Ethiopian national. He came to this country with other members of his family in 1992 when he was aged 14. On 6 October 1999 he, his siblings and their mother were granted indefinite leave to remain. On 22 December 2006, when AP was detained by the authorities while staying in Ethiopia, the Secretary of State decided to exclude him from the United Kingdom. It is clear that by then AP was suspected of involvement in terrorism. On 27 December 2006 he arrived in this country. He was refused leave to enter and detained under the Immigration Act 197His indefinite leave to remain was cancelled on the ground that his exclusion is “conducive to the public good”. He appealed to the Special Immigration Appeal Commission (SIAC) and was granted bail on stringent conditions. On 10 January 2008 the Secretary of State was granted permission to make a control order in respect of him. At the same time she reinstated his indefinite leave to remain and withdrew the decision to remove and exclude him. That brought the SIAC proceedings to an end. Since January 2008, AP has been the subject of a control order. There is now no dispute about the need for a control order. The present appeal is about its terms, to which I shall shortly refer. To complete the procedural history: AP requested a modification of the original terms; in April 2008, the Secretary of State modified the...
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