At v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CARNWATH,LORD JUSTICE LLOYD,LORD JUSTICE MAURICE KAY |
| Judgment Date | 07 February 2012 |
| Neutral Citation | [2012] EWCA Civ 42 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 February 2012 |
| Docket Number | Case No: TI/2009/0899 |
[2012] EWCA Civ 42
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEALS TRIBUNAL
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
PTA192008/PTA322008
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
(Vice President, Court of Appeal, Civil Division)
Lord Justice Carnwath
and
Lord Justice Lloyd
Case No: TI/2009/0899
Tim Owen QC & Edward Grieves (instructed by Messrs. TRP) for the Appellant
Robin Tam QC & Tim Eicke QC (instructed by Treasury Solicitors) for the Respondent
Judith Farbey QC & Shaheen Rahman (instructed by Special Advocates Support Office) as Special Advocates
Hearing date : Monday 5 th December, 2011
The issue in this appeal is the legality of a non-derogating control order made by the Secretary of State on 3 rd April 2008, and upheld by Mitting J on 20 th March 2009.
The facts are set out in detail in the judgment. In summary:
i) AT is a Libyan national who arrived in the UK in July 2002 and claimed asylum, which was granted on appeal on 23 rd September 2003. He has a wife and three children.
ii) He was at that time a member of the Libyan Islamic Fighting Group ("LIFG"), an organisation involved in armed opposition to the Ghaddaffi regime.
iii) On 8th January 2004 he was arrested on counterfeiting and forgery charges to which he pleaded guilty. On 12th May 2004, he was sentenced to 3 1/2 years imprisonment. On 1st July 2005 he was released on licence to his family's home in Birmingham.
iv) On 3rd October 2005 he was detained under immigration powers pending deportation to Libya on the ground that his presence in the UK was not conducive to the public good for reasons of national security.
v) The LIFG was proscribed under the Terrorism Act on 14th October 2005.
vi) In December 2005 AT was re-arrested and charged with conspiring to provide money and other property for the purposes of terrorism. The charges related to events before his arrest in January 2004. On 11th June 2007 AT pleaded guilty to an offence contrary to section 117 of the Terrorism Act 2000. He was sentenced to 22 months imprisonment, but was released immediately (having already served his sentence on remand).
vii) He was re-detained under immigration powers. In August 2007 he was released on SIAC bail. On 3rd April 2008 a non-derogating control order was served on him with the permission of Collins J. It was upheld by Mitting J on 20th March 2009.
On 27 th August 2009 the control order was revoked by the Secretary of State. AT is no longer in the UK. The practical effect of the appeal, as I understand it, is limited to providing a possible basis for a claim for compensation, and perhaps to removing any remaining stigma arising from the making of the order.
Legislative framework
The Prevention of Terrorism Act 2005 contains the legal framework for the making of control orders. Relevant to this case are sections relating to the making of a "non-derogating control order", that is one not involving deprivation of liberty for the purposes of article 5 of the European Convention on Human Rights. By section 2(1), the Secretary of State may make such a control order against an individual, if he:—
"(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism related activity; and
(b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual."
Terrorism related activity is defined by section 1(9):
"… involvement in terrorism related activity is any one or more of the following:—
(a) the commission, preparation or instigation of acts of terrorism;
(b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;
(c) conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;
(d) conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraphs (a) to (c);
and for the purposes of this subsection it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally."
A non-derogating control order is subject to review by the court, whose functions are defined by section 3(10) and (11):
"(10) … the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed –
(a) his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and
(b) his decisions on the imposition of each of the obligations imposed by the order.
(11) In determining –
(a) …
(b) the matters mentioned in subsection (10),
the court must apply to principles applicable on an application for judicial review."
By section 11(3), no appeal lies from any determination of the court in control order proceedings, except on a question of law.
The hearing before the High Court
In February 2010 Mitting J conducted a review hearing under section 3(10) of the Prevention of Terrorism Act 2005, combined with appeals in respect of conditions of the control order. By consent the case was heard with that of another Libyan national, AW. Mr Owen QC appeared for both AT and AW. Mitting J recorded that both admitted to having been members of LIFG, on and after their arrival in the UK, but claimed to have ceased to be members thereafter. On 20 th March 2010 Mitting J gave judgment upholding the order in respect of AT, but not AW.
Mitting J began with a summary of the Secretary of State's case against AT and AW (paras 6–8):
"6. At the start of open closing submissions and at my invitation, Mr Tam QC encapsulated the Secretary of State's case against AT and AW in three propositions:
ATi) within and associated with the LIFG are people who may wish to continue the armed struggle or jihad in Libya and elsewhere;
ii) as their activities in and before January 2004 demonstrate, AT and AW have the skills, knowledge and contacts which, if put at the service of such people, would be of assistance to them;
iii) neither AT nor AW have demonstrated that they are not willing to do so.…
7. The Secretary of State relies on five open grounds:
i) AT was and is a significant and influential member of the LIFG;
ii) AT has supported terrorist networks by providing a variety of false documentation including passports and identity documents;
iii) AT has supported LIFG activities by the transfer of funds;
iv) AT espouses violent Islamist views, as is demonstrated by the material seized at his home in October 2005;
v) the three propositions summarised above.
AW
8. The Secretary of State relies on four open grounds:
i) AW was and is a prominent member of the LIFG;
ii) AW was and is a facilitator for the LIFG, specializing in the production and provision of false documents to overseas LIFG members;
iii) AW was and is a facilitator for the LIFG specializing in the provision of funds to overseas LIFG members;
iv) the three propositions summarised above."
The control order in respect of AW was quashed. Mitting J accepted Mr Owen's submission that the Secretary of State had been misled by the submissions to her. On the information available to the Security Service, AW's activities as the forger of documents and provider of funds ceased on his arrest on 8th January 2004, but the impression given by the submissions to the Secretary of State was that they had resumed after his release from prison on 21st July 2005. The judge said:
"The error went to a factor of critical importance in the decision… When, as here, that person has been successfully prosecuted – as it happens twice – one of the factors which the Secretary of State will always wish to take into account when making her decision is whether or not he has been deterred. For the Security Service submission to give the impression that, not only has he not been deterred, but he has re-engaged in identified terrorism-related activity, misleads as to a critical factor in her decision. On any view, the error is sufficiently important to lead to the conclusion, which I reach, that the decision was flawed." (para 18)
He did not find the same error in the case of AT. In his view, there was nothing in the statements to convey the false impression that AT had resumed the supply of false documentation after January 2004.
Mitting J then considered in turn the procedural and substantive aspects of AT's case. On the former, he was satisfied that the requirements of fairness were met in AT's case notwithstanding limitations on the disclosure of the case against him. I shall return to that part of his judgment when I come to that issue.
On the substantive issues, he also upheld the Secretary of State's case:
"28. I set out my conclusions on the grounds relied on by the Secretary of State by reference to the numbered sub-paragraphs of paragraph 7 above.
i) I remain of the opinion that the LIFG remains in being, although its cohesion and effectiveness have been much reduced, for the reasons set out in the open and closed generic judgments. I am satisfied, on balance of probabilities, that AT was and remains a significant member of the LIFG, with the potential to exercise influence over its members and associates if not subject to obligations imposed by a control order. I reject his claim to have had nothing to do with the organisation since 8th January 2004.
ii) I am satisfied...
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