RB (Algeria) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice McCombe |
| Judgment Date | 27 April 2010 |
| Neutral Citation | [2010] EWHC 813 (Admin) |
| Docket Number | CO/547/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 April 2010 |
[2010] EWHC 813 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
ON APPEAL FROM THE SPECIAL
IMMIGRATION APPEALS COMMISSION
Before: Lord Justice La Ws
and
Mr Justice Mccombe
CO/547/2010
Ms Charlotte Kilroy (instructed by Birnberg Peirce and Partners) for the Claimant
Mr James Strachan (instructed by Treasury Solicitors) for the The Secretary of State for the Home Department
Hearing date: 11 March 2010
Lord Justice Laws:
INTRODUCTION
On 7 December 2009 the Special Immigration Appeals Commission (“SIAC”), presided over by Mitting J, heard and granted the Secretary of State's application to revoke U's bail. They gave reasons in a written judgment dated 21 December 2009. U now applies for judicial review of that decision. Permission was granted by Sales J on 1 February 2010.
U's case has a long history. I should first sketch the immediate background to the 7 December decision. On that day U remained held in detention pursuant to an earlier decision of SIAC made on 20 March 2009, also to revoke his bail, which had been arrived wholly on the basis of closed evidence none of which had been revealed to U. On 1 December 2009 in Cart, U and XC v The Child Maintenance and Enforcement Commission and SIAC [2009] EWHC 3052 this court (Owen J and myself) held that this amounted to a violation of U's right under Article 5(4) of the European Convention on Human Rights (ECHR) “to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”. We considered (paragraphs 112 – 114) that this conclusion was compelled by the decisions of the European Court of Human Rights in A and Ors v United Kingdom (Application 3455/05, 19 February 2009) and of the House of Lords in AF and Ors v Secretary of State [2009] 3 WLR 74. U was accordingly entitled to an order quashing the revocation of his bail. However (without objection from U's counsel) we withheld that relief for seven days for necessary arrangements to be made in anticipation of U's release. It was recognised also that the Secretary of State would have an opportunity within that time to seek permission from the Court of Appeal to appeal to that court. In fact he did not do so. Instead he applied to SIAC for a further revocation of U's bail, seeing that otherwise the prior revocation would imminently be quashed and U automatically restored to bail on terms which had been fixed much earlier.
In granting that application SIAC were of course obliged to be loyal to this court's judgment of 1 December 2009; that is to say, they could not revoke bail wholly in reliance on closed material none of which, not even the gist, had been disclosed to U. SIAC without doubt purported to act free of these legal vices. Miss Kilroy, in her tenacious argument on U's behalf, submits however that in seeking to do so SIAC applied an improper legal test for the application's determination, based on what has been called in the proceedings a “precautionary approach”. The questions raised in this judicial review application are (1) whether in fact the precautionary approach played any part in SIAC's determination of 7 December 2009; (2) if it did, whether it is legally objectionable, and the determination therefore flawed. Plainly (2) only falls to be considered if (1) is answered in the affirmative.
In order to explain how these issues arise I must turn to the history. What follows is an expanded version of the passage in my judgment in Cart in which I described the facts of U's case.
HISTORY
U is an Algerian national born on 8 February 1963. He came to the United Kingdom in November 1994 and claimed asylum. At the end of 1996 he travelled to Afghanistan. He returned to the UK in March 1999. On 27 June 2000 his asylum application was refused. In March 2001 he was arrested and remanded in custody on criminal charges, but they were dropped on 16 May 2001. However he was detained at HMP Belmarsh by the Secretary of State under paragraph 16 of Schedule 2 to the Immigration Act 1971 (“the 1971 Act”) on the grounds that he had breached the conditions of his temporary admission. There ensued a lengthy series of events whose upshot is that, save for a period from July 2008 until February 2009 when he was on bail, U has been continuously in custody since March 2001. His confinement has been justified from time to time as a prisoner on remand, or under the administrative powers given by the 1971 Act, or at one stage as a fugitive whose extradition was sought to the United States.
Part of the history concerns deportation proceedings relating to U. On 11 August 2005 the Secretary of State served him with a notice of intention to deport under s.3(5) of the 1971 Act on the ground that his deportation would be conducive to the public good for reasons of national security. Appeal proceedings followed. On 7 November 2006, allegedly because of delays in the SIAC appeal process into which it is unnecessary to travel, U waived his right to pursue his appeal against the Secretary of State's decision that he was a risk to national security while making it clear that he did not accept the truth of that finding. A consequence was that when SIAC came to hand down its decision dismissing U's substantive appeal, it was unnecessary to give a closed judgment. The open judgment on the national security issue given by SIAC on 14 May 2007 was in the following terms:
“3. It is the Secretary of State's case that from 1996 until February 2001, U was a leading organiser and facilitator of terrorist activity aimed mainly at overseas targets. To that end, it is claimed that he formed and led a terrorist group bearing one of the names which he had assumed in Afghanistan. Several of its members have been the subject of appeals to SIAC, against decisions by the Secretary of State to deport them on national security grounds. Claimed membership of the group formed part of the Secretary of State's case against each of them.
4. On 23 March 2006, FCO officials handed over to the Algerian Embassy a note which summarised the security service's view of U in the following terms:
‘Senior position in Mujahedin training camp in Afghanistan. Direct links to UBL (Usama Bin Laden) and other senior AQ (Al Qaeda) figures. Involved in supporting terrorists including those involved in the planned attack on the Strasbourg Christmas Market in 2000, and an earlier plan to attack Los Angeles Airport. US sought his extradition but withdrew request August 2005 … DETAINED’.
There are credible grounds for believing each of these assertions.
5. In an unsigned witness statement dated January 2006, the appellant admits that, while in Afghanistan, he attended Khalden Camp (paragraph 16), at which individuals received training for ‘resistance’ in their own countries (paragraph 16). He stated that he ‘was obliged, or felt obliged, to have some form of rudimentary military training’ (paragraph 15). He admits attending the guest house in Jalalabad, at which others, suspected of terrorist activity, claimed to have met him (paragraph 26).
6. Some of the information about U's specific contacts and activities at both places was provided by Ahmed Ressam, who was arrested on 14 December 1999, in Port Angeles, Washington State, driving a van laden with explosives, which he said were destined for Los Angeles Airport. On 6 April 2001, Ressam was convicted of engaging in an act of terrorism and placing an explosive in proximity to a terminal and other offences, for which he was sentenced on 27 July 2005 to twenty-two years imprisonment – a substantial reduction on the sixty-five years minimum required by sentencing guidelines. He received that discount because he had provided information judged by the United States authorities to be true about others, including, in particular U. He said that he had received training in weapons handling and bomb making in Afghanistan, as part of a cell which included U as leader or trainer. Plans to bomb US targets were discussed at the training camps. Ressam understood that U's responsibilities included facilitating travel to and from the countries in which operations were to be carried out. (See paragraph 8 of the long form sealed complaint against U by the United States of America dated 2 July 2001.)
7. Ressam also stated that the proposed bombing of Los Angeles Airport was discussed with U in Afghanistan (paragraph 9) and that, as the date of the operation approached, U arranged that he would meet him in London when he had left the United States and assist him with travel to Algeria (Paragraph 11).
8. On the basis of Ressam's statements, the United States of America sought U's extradition from the United Kingdom. The application was withdrawn after, in April 2003, Ressam refused to testify against U. At a minimum, this calls into question the reliability of Ressam's statements about U.
What cannot be gainsaid, however, is that Ressam was engaged in a serious attempt to commit a major act of terrorism in the North West of the United States; and what is uncontradicted by the appellant is that a telephone number attributed to him –7714620952 – was noted on a business card in Ressam's possession. Further, the appellant admits that he met Ressam at the guest house in Jalalabad (paragraph 26 of his statement of January 2006). At a minimum, a significant connection between a man caught in the act of furthering a major terrorist...
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