Secretary of State for the Home Department v AR
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING: |
| Judgment Date | 19 December 2008 |
| Neutral Citation | [2008] EWHC 3164 (Admin) |
| Date | 19 December 2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: PTA/17/2008 & PTA/31/2008 |
[2008] EWHC 3164 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION PURSUANT
Mr Justice Mitting
Case No: PTA/17/2008 & PTA/31/2008
MR JAMES STRACHAN & MISS KATE GRANGE (instructed by THE TREASURY SOLICITOR) for the Applicant
MR PATRICK O'CONNOR QC & MR HUGH SOUTHEY (instructed by TRP SOLICITORS) for the Respondent
MR ANDREW NICOL QC & MISS MELANIE PLIMMER (instructed by THE TREASURY SOLICITOR SPECIAL ADVOCATE SUPPORT OFFICE) as Special Advocates
Hearing dates: 27th & 28th November 2008 and 5th & 8th December 2008
Judgement
Background
AR is a Libyan national who arrived, with his wife, in the United Kingdom on 27 th January 2004, from China, and immediately claimed asylum. The basis of his claim was that he belonged to the Al Bayraaq cell of the Al Tajjamah Group – a group hostile to the Libyan government – and feared capture and execution if he were to return to Libya. He claimed initially to have left Libya on 19 th November 1999, a date later amended to 19 th November 2000. His claim was refused on 8 th March 2004. He appealed to an Immigration Judge, who allowed his appeal in a determination prepared on 25 th May 2005 (the date of promulgation is not stamped on the determination): 1/3A/15–20. The Immigration Judge accepted his claim as credible and allowed his appeal on both asylum and human rights grounds. On 3 rd October 2005 he was detained under immigration powers and on 14 th December 2005 served with notice to deport on conducive grounds on the basis that he posed a threat to national security. He appealed to the Special Immigration Appeal Commission which, in a Judgment dated 27 th April 2007 allowed his appeal. It found that he posed a real and direct threat to the national security of the United Kingdom, but that he could not safely be returned to Libya. He was admitted to bail by the Commission in May 2007. The Secretary of State's appeal to the Court of Appeal was dismissed on 9 th April 2008. In anticipation of the outcome, the Secretary of State applied for and was granted (by Collins J) permission to make a non-derogating Control Order against AR. The Control Order was served on 4 th April 2008 and remains in force. Amongst its provisions, it required him to live at an address in Oldbury, to be subject to a twelve hour curfew and to a boundary encompassing part of the Black Country. A significant modification to the Control Order was notified to him on 7 th November 2008: as from 11 th November 2008, he has been required to live at an address in Bury and to be confined within a boundary encompassing much of Bury and its immediate surroundings. In these proceedings, AR challenges the Secretary of State's decision to make the Control Order by way of review under Section 3(10) of the Prevention of Terrorism Act 2005 and, by Notice of Appeal dated 25 th June 2008, challenges the Secretary of State's refusal to modify certain conditions of the Control Order under Section 10(3). Save as to the geographical boundary (as to which AR may, if the Control Order is upheld and remains in force, seek further modification) the appeal remains live notwithstanding the modifications referred to. The issue in each case is whether or not the decision of the Secretary of State was flawed: Sections 3(10) and 10(5)(b).
The principal issues
The principal issues arise under 5 heads
i) Procedural:
a) to what extent, if at all, should I take into account the findings of SIAC?
b) has AR been afforded at least the minimum requirements of procedural fairness to which he is entitled in these proceedings?
ii) Stay: should the proceedings be stayed as an abuse of process?
iii) Substantive: is the Secretary of State's decision that AR has been involved in terrorism-related activity flawed?
iv) Necessity: is the Secretary of State's decision that the making and continuance in force of the Control Order is necessary for purposes connected with protecting members of the public from a risk of terrorism, flawed?
v) Modification: is the decision of the Secretary of State that the obligations challenged continue to be necessary for that purpose, flawed?
There are subsidiary questions which I will deal with under the appropriate head.
The Secretary of State's case on the substantive issue
The Secretary of State relies on eight open grounds of suspicion:
i) AR is, and for many years has been, a senior member of the Libyan Islamic Fighting Group (LIFG).
ii) AR has associated with senior Islamist extremists in Afghanistan, Pakistan and China, including the principal leader of the LIFG, Al Sadeq.
iii) since his arrival in the United Kingdom, AR has associated with senior LIFG members based in the United Kingdom, including (by their Control Order initials) AU and AV.
iv) AR's principal role has been the dissemination of information and propaganda.
v) AR has extremist jihadist views, demonstrated by a family website prepared by him, but not posted on the internet.
vi) until his detention on 3 rd October 2005, AR had the ability and means to produce forged documents for terrorism-related purposes and may have done so.
vii) AR has a family link to Sharjane Abdelmajid Fakhet, the alleged leader of the group which carried out the bombings in Madrid on 11 th March 2004 and may have had advanced knowledge of them.
viii) AR may have carried out an operational reconnaissance of paths under the flight path to Birmingham Airport.
There is one additional significant closed ground.
Procedure
Mr Strachan submits that I should give considerable weight to the findings of SIAC about AR's activity and the risk which he posed to national security. Mr O'Connor QC submits that I should ignore SIAC's findings. There is no authority which binds me as to the approach which I should take. It is however, rightly, common ground that I am not, as a matter of law, bound to accept SIAC's findings, applying the principles of res judicata or issue estoppel. The issues in the two sets of proceedings are not the same: before SIAC, it was whether or not it was conducive to the public good that AR should be deported because he posed a threat to national security. In these proceedings, the issue is whether or not the decision of the Secretary of State that there were reasonable grounds for suspecting that AR is or has been involved in terrorism related activity is flawed. No decision has been made by any Court on that issue. SIAC did make findings, sometimes on the balance of probabilities, about AR's activities. The parties to the proceedings are the same and the topic is closely related. Application of the principle of issue estoppel would, in legal theory, be possible. The result would be that AR could not challenge any finding of fact made on balance of probabilities by SIAC. But such a course is precluded by authority and by considerations of justice. In Secretary of State for the Home Department v AF [2008] EWCA Civ. 117, the Court set aside a declaration made by Stanley Burnton J that findings made by the Court on issues arising on a hearing under Section 3(10) are in principle to be regarded as binding between the parties in relation to matters at the date of that hearing at a subsequent under Section 3(10). The Judge at the second hearing had to be satisfied that the facts relied on by the Secretary of State amount to reasonable grounds for suspicion: paragraphs 30 and 60. If that is the case in the same proceedings under the same statutory provision, it must be so in cases in different proceedings under different statutory provisions. The potential differences between the proceedings are not just theoretical. The procedural safeguards for a respondent in Control Order proceedings are different from those for an appellant before SIAC: in certain circumstances, and when necessary to achieve justice, disclosure of material protected by CPR Part 76.1(4) may be necessary (if reliance is to be placed upon it by the Secretary of State) to fulfil Article 6(1) ECHR requirements. (Subject to the anticipated decision of the House of Lords in the SIAC appeals heard in October) no such requirements apply to a SIAC appeal. A respondent may, therefore, be able to address the case against him on fuller information than was given to him in his appeal. More practically, in Control Order proceedings, the respondent does not face the prospect of deportation and may, for that reason, feel freer to be frank about his activities than he would before SIAC. Further, and as has happened in Libyan cases, very significant changes have occurred in the “political” context since SIAC's determination: the “merger” of Al Qaeda and the LIFG, announced on 3 rd September 2007; and the opening of negotiations between the Libyan government and imprisoned LIFG leaders with a view to persuading them to renounce violence. These developments are capable of casting new light on earlier activities.
I do not accept either of the two propositions about the relevance of SIAC's decisions which have been put to me. I do not really understand how I can “give weight” to SIAC's findings about AR's past activities if, as is common ground, I have to reach my own conclusions about them. I do, however, accept the need, where possible without injustice, for consistent decision making between the same parties on similar issues. I cannot, therefore, accept Mr O'Connor's proposition that I should simply disregard SIAC's...
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