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On 11Th August 200, the Appellant Mr Omar Othman Also Known As Abu Qatada, Was Served by the SSHD with a Notice of Intention To

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On 11Th August 200, the Appellant Mr Omar Othman Also Known As Abu Qatada, Was Served by the SSHD with a Notice of Intention To Appeal No: SC/15/2005 Date of Judgment: 26 February 2007 SPECIAL IMMIGRATION APPEALS COMMISSSION Before: THE HONOURABLE MR JUSTICE OUSELEY (Chairman) SENIOR IMMIGRATION JUDGE ALLEN MR J K LEDLIE OMAR OTHMAN (aka ABU QATADA) APPELLANT and SECRETARY OF STATE FOR THE HOME DEPARTMENT RESPONDENT For the Appellant Mr E Fitzgerald QC, Mr D Friedman, Mr R Husain Instructed by Birnberg Peirce and Partners For the Respondent Mr Ian Burnett QC, Mr R Tam, Mr A O’Connor Instructed by the Treasury Solicitor for the Secretary of State Special Advocate: Mr A McCullough, Mr M Chamberlain Instructed by the Treasury Solicitor Special Advocate Support Office Hearing Dates: 9th–11th May, 18th and 19th May 2006 1 1. On 11th August 2005, the Appellant, also known as Abu Qatada, was served by the SSHD with a Notice of Intention to Deport him to Jordan, the country of which he is a national. The SSHD deemed it conducive to the public good that the Appellant be deported. The Appellant was placed in immigration detention under Schedule 3 to the Immigration Act 1991, where he remains pending the actual making of the deportation order, or success in this appeal. 2. The appeal route lies in this instance to SIAC rather than to the AIT because the SSHD certified under s97(1)(a) of the Nationality, Immigration and Asylum Act 2002 that his decision was taken in the interests of national security. Thus SIAC is fulfilling the role which it was originally set up to fulfil: determining immigration and removal appeals in which national security issues are involved. 3. SIAC was set up in 1997 by Act of Parliament, with its specific national security remit, restrictions on the disclosure of national security or other public interest material, and the special advocate system to deal with material not disclosed to an appellant. SIAC was the means chosen to remedy the want of fairness in challenges to national security based immigration decisions, found by the ECtHR in Chahal v United Kingdom (1996) 23 EHRR 413. The Court contemplated the sort of arrangements which were to be made by the SIAC Act as fair, accommodating legitimate security considerations and according a substantial measure of protection to the individual. 4. The grounds of appeal against this decision are those set out in s84 of the 2002 Act, as for a decision not made on national security grounds. Here, the appeal was made on the grounds that the removal of the Appellant would breach his rights under the ECHR; his removal would breach the United Kingdom’s obligations under the Refugee Convention; the decision was not in accordance with the law; and the SSHD’s discretion under the Immigration Rules should have been exercised differently. The ECHR rights relied on were those set out in Articles 2, 3, 5, 6 and 8. The Appellant had been recognised as a refugee under the Refugee Convention; he could not be excluded under Article 1F, nor could he be returned to a country where he had a well- founded fear of persecution. The decision was not in accordance with law because, following the Appellant’s detention under Part 4 of the Anti-Terrorism Crime and Security Act 2001 and the later Control Order under the Prevention of Terrorism Act 2005, it was an abuse of power to subject him to deportation. Immigration history 5. The Appellant was born in 1960 near Bethlehem, at that time in Jordan. He arrived in the UK on 16th September 1993 on a forged UAE passport. He claimed asylum on arrival for himself, his wife and his then three children. He had been living in Peshawar in Pakistan 2 teaching Afghan children, he said, for two years but was forced to leave Pakistan and travelled via the Maldives and Singapore to London. The basis of his claim, from his application and interview, was that he feared that he would be tortured if returned to Jordan, as he had been tortured in the past by the Jordanian intelligence services. They had objected to his Islamist political activities, his ideological leadership of an Islamist reform group which, as he put it, looked to return Jordan to Islamic government, controlled by Islamic law and with no King, and they had objected in particular to his publicly expressed views against Saddam Hussein’s invasion of Kuwait and against Jordan’s support for him. He would be tortured on return because he had left Jordan illegally and in breach of the terms of his house arrest. 6. On 30th June 1994, the Appellant was recognised as a refugee and was granted leave to remain until 30th June 1998. He applied for indefinite leave to remain on 8th May 1998, but that application remains undetermined. Nevertheless, because he applied for ILR before the expiry of his leave, that leave continues in force by virtue of a sequence of statutory provisions now to be found in s3C of the Immigration Act 1971. 7. Shortly before the coming into force of the Anti-Terrorism, Crime and Security Act 2001 in December 2001, an Act which the Appellant now saw as being aimed at him, he went into hiding. In October 2002, he was located and detained pursuant to Part 4 of the Act. His appeal against the SSHD’s certification, that his presence in the UK was reasonably believed to be a risk to national security and that he was reasonably suspected of being an Al Qa’eda linked international terrorist, was dismissed by a panel of this Commission chaired by Collins J in March 2004. The Appellant did not pursue the permission to appeal which he had been granted. 8. Following the decision of the House of Lords in A and Others in December 2004 on the derogation appeal, the 2001 Act was not renewed, and the Appellant was released by SIAC on bail on terms which were very similar to those which were imposed on the Appellant by a Control Order made very shortly afterwards, under the Prevention of Terrorism Act 2005. He appealed against that Order to the High Court, but that appeal had not been dealt with by the time he was served with the Notice of Intention to Deport with which SIAC is now concerned. The Control Order then ceased to have effect. The National Security case: SIAC’s Part 4 ATCSA determination 9. Mr Burnett QC for the SSHD submits that the requirements under s3(5) of the Immigration Act 1971 for the deportation of someone as a risk to national security and for certification under s21 of the ATCSA 2001 are very similar, and that SIAC concluded in March 2004 that that risk had been made out. 3 10. We are of course not bound by that decision nor does it create res judicata or issue estoppel. There is an implicit contention from the SSHD that we can properly give it great weight, certainly in the absence of fresh countervailing material. That implicit contention requires caution for the reasons we come to, though it would be in line with the AIT approach to human rights appeals, where earlier asylum appeals have considered all or part of the same ground, as set out in Devaseelan v SSHD [2002] UKIAT 00702, [2003] Imm AR 1, approved in Djebbar v SSHD [2004] EWCA Civ 804. 11. First, s21 of the 2001 Act permitted the SSHD to issue a certificate if he “reasonably believes that the person’s presence in the United Kingdom is a risk to national security.” S25(2) required SIAC to cancel the certificate if it considered that there were no reasonable grounds for that belief. It is not necessary now to rehearse the debate about that in SIAC’s open generic judgment in Ajouaou, A and Others 29th October 2003, or in A and Others (No.2) v SSHD [2004] EWCA Civ 1123 [2005] 1 WLR 414. 12. However, it is not disputed but that the burden is on the SSHD to make out his chosen ground for deportation, namely that the Appellant’s presence is not conducive to the public good in the interests of national security. That burden is discharged by proving to SIAC that he is a danger or risk to national security. It is not discharged simply by satisfying SIAC that the SSHD had reasonable grounds for the s97 certificate. The strength of the language used in SIAC’s Part 4 conclusions may suggest that the evidence went beyond the proof of reasonable grounds, but there is now a more demanding test and SIAC must decide whether it is met. It cannot adopt a previous decision given under a different Act simply because there has been no further evidence to contradict that earlier decision. 13. Second, there is also further evidence from both sides which may cast light on activities which are relevant to the national security issue, which may make simple adoption of the previous decision impossible. SIAC has also to consider the effect of evidence upon which the SSHD might no longer rely as a result of the decision of the House of Lords in A and Others (No. 2) v SSHD [2005] UKHL 71, [2005] 3 WLR 1249. It has to do that even though the Appellant did not pursue his appeal on any ground against the decision in the Part 4 case. The consideration of the admissible evidence is best done by looking at the totality of the evidence relied on, rather than by seeing what difference any deletions might make to an existing conclusion. 14. Third, we also take the view that the significance of our national security conclusions for the way in which an individual may be perceived or treated on return, and for the way in which other issues may have to be considered, requires us to reach our own conclusions on the material.
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