As and Another (Libya) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeSir Anthony Clarke
Judgment Date09 April 2008
Neutral Citation[2008] EWCA Civ 289
Docket NumberCase No: T1/2007/0504
Date09 April 2008

[2008] EWCA Civ 289

IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION

The Hon Mr Justice Ouseley, Senior Immigration Judge Jordan and

Mr J Mitchell

SC/42 & 50/2005

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Sir Anthony Clarke Mr

Lord Justice Buxton and

Lady Justice Smith

Case No: T1/2007/0504

Between
AS & DD (Libya)
Respondents(Appellants)
and
Secretary Of State For The Home Department
Appellant(Respondent)
and
Liberty
Intervenor

Mr Philip Sales QC, Mr Robin Tam QC, Mr Tim Eicke and Mr Andrew O'Connor (instructed by the Treasury Solicitor) for the Appellant

Mr Edward Fitzgerald QC, Mr Raza Husain, Mr Danny Friedman and Mr Hugh Southey (instructed by Messrs Birnberg Peirce and Partners for AS & TRP Solicitors for DD) for the Respondent

Special Advocates for AS: Mr N Garnham QC & Ms J Farbey (instructed by the Special Advocates Office)

Special Advocates for DD: Mr A Nicol QC & Ms J Farbey (instructed by the Special Advocates Office)

Mr Michael Fordham QC & Mr Tom Hickman (instructed by Liberty) for the Intervenor

Hearing dates: 26 & 27 February and 3,4,5 & 6 March 2008

Sir Anthony Clarke

Sir Anthony Clarke:

This is the judgment of the court to which each member of the court has contributed.

Introduction

1

On 3 October and 14 December 2005 respectively AS and DD were each served with notice of a decision to make a deportation order against him on the grounds that his presence in the United Kingdom was not conducive to the public good because he was a danger to national security. Each was detained on the grounds of national security. They each appealed on various grounds and, although their cases are entirely separate, both their appeals were heard by SIAC at the same time from 30 October to 10 November and on 16 and 17 November 2007. The members of SIAC who heard their appeals were the chairman of SIAC, Ouseley J, Senior Immigration Judge Jordan and Mr J Mitchell.

2

Before SIAC there were a plethora of issues, which are discussed in great detail in a very lengthy judgment containing 433 paragraphs which was handed down on 27 April 2007. In the result the appeals against the deportation orders were allowed on a single ground, namely that there were substantial grounds for believing that the respondents faced a real risk of suffering treatment contrary to article 3 of the European Convention on Human Rights ('the Convention') if they were returned to Libya. The Secretary of State for the Home Department ('the SSHD') sought permission to appeal from SIAC but permission was refused by Mitting J. In refusing permission, he acknowledged that the issues raised in these cases were important but said that they were factual. However, permission was subsequently granted by Hallett LJ. The respondents are at present on bail subject to stringent conditions.

3

The statutory scheme is described at [2, 9 and 93] in our judgment in MT, RB and U (Algeria) v SSHD [2007] EWCA Civ 808, [2008] 2 WLR 159 and we need not repeat it here. It is sufficient to note that an appeal from SIAC to this court lies only on a point of law. We consider below the correct approach in a case of this kind in the light of AH (Sudan) v SSHD [2007] EWHL 49, [2007] 3 WLR 832, especially per Baroness Hale at [30].

4

The appeal is concerned solely with the issue of safety on return to Libya. The striking aspect of the case is that the SSHD's case depends entirely upon a memorandum of understanding ('MOU') between Libya and the United Kingdom signed on 18 October 2005. SIAC exhibited the MOU to its judgment. It is sufficient for present purposes to say that it provides the United Kingdom with assurances that anyone deported from the United Kingdom will be properly treated. It is not necessary to go further because, on the one hand it is accepted by the SSHD that, in the absence of the MOU, there would be substantial grounds for believing that there is a real risk of the respondents being tortured on their return to Libya, whereas, on the other hand, it is accepted on behalf of the respondents that if Libya complies with the MOU there is no such risk. The sole issue on the facts before SIAC on this part of the case was whether the MOU reduced the risk to an acceptable level. SIAC accepted that, motivated by self-interest and pragmatic reasons, the Government of Libya had provided the MOU in good faith, intending to honour it. However, for reasons which are discussed in some detail at [70–80] below, SIAC held that Libya's motivation and reasoning might change, that it might not honour the MOU and that, in consequence, there was a real risk of the respondents being tortured on return. The case for the SSHD in this appeal is that SIAC erred in law in reaching that conclusion.

5

The SSHD now has four grounds of appeal, although what is now the first ground was added by amendment. In summary they are these:

i) SIAC failed to give sufficient weight to the evidence of the FCO witness Mr Layden and/or wrongly substituted its own assessment for his and/or failed to give sufficient reasons for rejecting his evidence.

ii) SIAC failed to direct itself as to the correct test to measure the degree of risk that the respondents would suffer ill-treatment contrary to article 3 on return.

iii) SIAC erred in lowering the test for risk on return to take account of the unpredictability of future events in Libya.

iv) SIAC's findings of fact do not warrant, and are not capable of supporting, a conclusion that substantial grounds have been shown for believing that the respondents face a real risk of suffering treatment contrary to article 3 on return.

6

SIAC handed down both open and closed judgments and we have considered both, in the latter case with the assistance of the special advocates, but the SSHD's appeal is advanced without reference to the closed material. We return to the relevance of the closed material below.

Background to issues in the appeal

7

SIAC held that both AS and DD were a threat to national security. Since that is accepted in this appeal, it is not necessary to refer to this part of the case, save in order to give an outline of the facts which are relevant to risk on return. Both respondents are Libyan nationals. SIAC described DD and the threat he posed in some detail at [71–75] as being a real and direct threat to the national security of the United Kingdom. Those paragraphs include these findings which are relevant for present purposes:

71. We are entirely satisfied that DD is a real and direct threat to the national security of the UK. He is an Islamist extremist. He is a member of the LIFG [ie the Libyan Islamic Fighting Group] and at least within the UK is a figure of some importance and influence. He has close links with a number of senior LIFG members.

72. DD is a global jihadist with links to the Taleban and Al Qa'eda. Such differences as exist between those two groups have no relevance to the danger he poses. He left Libya earlier than he admits, and has travelled significantly. We are quite satisfied that the more sinister interpretations of his so called “family”website are correct and show his support for suicide operations.

73. The evidence strongly supports the conclusions that he has probably been involved in the procurement and production of false documentation for use by LIFG members.

74. DD is also a threat to the UK's national security because his opposition to the Qadhafi regime is a major aspect of his global jihadist outlook. Opposition to the Qadhafi regime, including opposition from an Islamist perspective i.e. from the viewpoint that the regime is anti-Islamic according to their particular strand of religious belief, is not of itself a threat to the UK's national security. It is the extremist Islamist opposition, which countenances and supports the use of violence against the regime, which is a threat; and particularly so where it is part of a wider jihadist outlook. These activities cannot sensibly be regarded as legitimate self-defence.

8

SIAC's conclusions with regard to AS are summarised at [104]:

'104 The SSHD alleged that AS was a committed Islamist extremist who had been actively involved in providing logistic support to individuals linked to Al Qa'eda, and was linked to a terrorist cell based in Europe which was involved in raising funds, procuring forged documents and in facilitating the travel of recruits to terrorist training camps. He had links to individuals who were involved in attack planning in Europe, and himself had received terrorist training in Afghanistan. It was not alleged against him that he was a member of the LIFG, although the Libyans had accused him of being a member. …”

9

Those conclusions focus on the risk posed by the respondents to the national security of the United Kingdom. In part drawing on those conclusions, SIAC found that the respondents would each be seen in Libya as senior terrorist suspects associated with LIFG and Al Qaeda, determined to use violence for extremist ends against the Libyan regime, which SIAC accepted would place them in a particularly vulnerable position if they were returned to Libya. At [128–138] SIAC made findings as to the risks on return faced by the respondents.

10

Those findings, which are in the open judgment and thus available to Libya, may be summarised in this way. In various notes verbales in 2006 the Libyan government made it clear that it regarded both respondents as members of LIFG and that on return both would be tried under article 206 of the Penal Code, which provides for the death penalty, subject to mitigating factors: see...

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