OPEN
DETERMINATION
Appeal No:
SC/20/2002
SPECIAL IMMIGRATION APPEALS
COMMISSION
Date of Hearing: 15 December
2003
Date Determination notified: 27 January
2004
Before:
The Honourable Mr
Justice Collins (Chairman)
Mr J Barnes
Mr J Daly
‘P’
APPELLANT
and
SECRETARY OF STATE FOR
THE HOME DEPARTMENT
RESPONDENT
|
For the
Appellant: |
Mr B Emmerson
QC
Mr D Friedman
|
|
For the
Respondent:
Special
Advocate: |
Mr I Burnett
QC
Mr J
Glasson
Mr N Blake
QC |
OPEN
JUDGMENT
- The appellant
is an Algerian national. He arrived in the United Kingdom on 18
February 1999. He came from Afghanistan via Abu Dhabi and had apparently
travelled on a false French passport. This he had managed to dispose of
before he reached immigration control where he applied for asylum. A
report from the immigration officer who dealt with him at the airport notes
that he was a double amputee, his left arm having been amputated at the wrist
and the right just below the elbow. He was walking with the aid of a
crutch because he had an infected skin graft on his leg. This meant he
should see a doctor but did not need immediate hospitalisation: that at any
rate was the view of the Port Medical Inspector who examined him.
- His asylum claim was
refused on 27 February 2001. He was then in custody, having been
arrested on 15 February 2001. He was charged with possession of articles
for suspected terrorist purposes, conspiracy to defraud and conspiracy to make
false instruments. The charges were in the end not proceeded with and he
was released on 17 May 2001 . He was detained following the issue of a
certificate under s.21 of the 2001 Act on 14 January 2003. The reasons
given for its issue were:-
“You are an associate of
Algerian extremists engaged in active support for various international
terrorist groups, including nationals associated with Usama Bin Laden.
Your activities on behalf of these nationals include the supply of false
documents”.
At the same time, the
respondent issued a certificate under s.33 of the 2001 Act and a decision to
make a deportation order based on the same reasons. On 16 January 2003 the
appellant lodged appeals against the various decisions.
- The appellant had
appealed against the refusal of his asylum claim but that appeal had not been
heard by the time he was detained in January 2003. Since the respondent
in deciding to use the power to detain in the 2001 Act has concluded that “it
is unlikely that he will be able to deport [the appellant] to Algeria, because
he could not be satisfied that [the appellant’s] right to freedom from inhuman
and degrading treatment could have been guaranteed there”, the appeal against
refusal of asylum has become somewhat academic since a human rights appeal
would be likely to succeed.
- The appellant has
submitted a statement dated 28 July 2003 following service upon him of the
open material relied on by the respondent. That statement is a robust
denial of the allegations made against him and an assertion that he has not
been involved in nor has he had knowledge of any terrorist activities.
By the time his appeal was due to be heard, the Commission had given its
judgment in a number of appeals by those who had been detained under the 2001
Act when it came into force in December 2001. One of those judgments was
lengthy and detailed and was intended to deal with all points of law which had
been raised in the various appeals and to give the Commission’s conclusions on
the significance of a number of groups or organisations which were alleged by
the respondent to be involved in international terrorism. We have relied
on that judgment. No information put before us suggests that any of the
conclusions reached in it are or may be wrong. In addition, we have not
found it necessary to consider separately the appeals against the decision to
make a deportation order or to certify under s.33 since, if we were to allow
the appeal against the certification under s.21 of the Act, the other appeals
would be bound to succeed as well.
- When the appeal was
called on, the appellant was not present. Mr. Emmerson QC told us that
he had decided not to attend or to take any part in the appeal. He was,
said Mr. Emmerson, a genuine refugee, a member of no organisation or group and
not involved in terrorism or in advocating terrorism. He had no knowledge of
any planned terrorist attacks and could not understand why the accusations had
been made against him. He had seen none of the underlying material and
had no means of challenging it. In effect, he could do no more than
assert that it could not justify the conclusion that he was an international
terrorist within the meaning of the Act since he was not. He had had
read to him the decisions of the Commission in the previous appeals.
Given the relevance which was placed on the closed material and the statutory
test applicable, he felt that the result was a foregone conclusion. He
did not wish by participating in the appeal to give an impression which would
be false that he could deal with the matters which were being relied on
against him. He had no confidence in the proceedings. Accordingly,
he would take no active part in them beyond the statement which Mr. Emmerson
made on his behalf.
- He did not withdraw
his appeal. While we appreciate the handicap under which he and indeed
all the appellants labour, we wish to make it clear that no appeal is a
foregone conclusion. We have to and we do consider the evidence put
before us, whether open or closed, with care because we recognise that the
result is detention for an unspecified period without trial. While we
recognise that the special advocate has a difficult task when he has and can
obtain no instructions on closed material, he is able to test evidence from
the Security Services and to draw our attention to material which assists the
appellant’s case.
- Mr Blake, QC, the
special advocate, did just that in this case. He, in our view rightly,
regarded it as his responsibility because he represented the interests of the
appellant, to question witness D and to make appropriate submissions.
Some of those we considered to have weight. We wish to make it clear
that we do not take his activities as in any way compromising the appellant’s
view that he did not want by participating to give the impression that he
accepted the fairness of the proceedings. Mr Blake was very properly
recognising that it must be in the appellant’s interest so long as he did not
abandon his appeal to try to draw out any material favourable to his case and
to persuade us to allow his appeal or, at least, to release him from
detention. Mr Blake put forward a powerful contention that, even if we
were persuaded that the certification was proper, it was not necessary that
the appellant should be detained and that he could therefore be released on
bail subject to suitable conditions.
- The essence of the
case against the appellant is that since his arrival in the United Kingdom he
has been closely involved with a network of extremists formerly led by Abu
Doha. In particular, it is said that he has provided what is described
as ‘logistical support’ to the network and has in particular been involved in
the supply of false documentation and the use of credit card fraud and other
activities to raise money for it. He gave support, it is said, to the
cell in Frankfurt which had planned an attack on the Christmas Market in
Strasbourg in 2000 and, more recently, had provided material support to at
least two terrorist cells which were planning chemical and biological attacks
in the United Kingdom. All this the appellant denies.
- Abu Doha himself is an
Algerian who had been in Afghanistan before coming to this country in about
May 1999. By September 1999 he was acting as the point of contact and
reference for individuals wishing to undertake training in Afghanistan and by
November 1999 was co-ordinating support for Arab Mujaheddin in Chechnya.
He was, as are those with him, involved in criminal activity, mainly in the
form of credit card fraud, to fund their activities. He was arrested in
February 2001, following an extradition request from the United States
government, resulting from the arrest of Ahmed Ressam who was in possession of
a quantity of explosives which were intended to be used to cause explosions at
Los Angeles airport. Abu Doha had helped to train Ressam in
Afghanistan. There was also evidence linking Abu Doha with those who
were eventually convicted of the Strasbourg Christmas Market plot.
- Abu Doha’s arrest did
not mark the end of the Abu Doha Group. Others took his place and those
who had been involved with him remained active: some of those are named
in the amended Open Statement at paragraph 16. All save one are detained
under the provisions of the 2001 Act and their appeals have been
dismissed.
- In the judgment in
Ajouaou and others v SSHD, the Commission (in what has become known as
the ‘Generic judgment’) has considered the Abu Doha Group. Since the
matter most relied on against the appellant is his involvement with that
Group, whose existence as we have said remained in being despite the arrest of
its eponymous founder, it is desirable that we quote what was said about
it. At paragraph 294, this is said:
“There is ample evidence
to support the conclusion that this group falls within the Act, has links to Al
Qa’eda and is a very important part of the emergency It is not a group
with an exclusive membership; its members or supporters or some of them
may form part of other networks or groups as well. It is the paradigm
group, loosely co-ordinated but overlapping with other groups or cells of North
African, principally Algerian, extremists… It too is controlled or
influenced by people outside the United Kingdom.”
- Although he has lived
at various addresses in this country, the appellant has spent a great deal of
his time at the Finsbury Park Mosque. In his statement, he has said this
was because there were available communal facilities and people who would help
him with his physical needs. He was not, he said, concerned with those
people’s activities and was unaware of any involvement by any of them in
terrorism. He consorted with them because they were from the same
background, namely Algeria, spoke the same language and held the same
religious beliefs. One of the matters relied on against him is an
allegation that in June 2001 he was demonstrating his antipathy to the West
and his support for terrorist attacks against United Kingdom interests in a
meeting at the Mosque. He denies that he was at any such meeting or ever
expressed any such sentiments and asserts that the Security Forces must have
made a mistake and identified the wrong person. We would only note that
his physical condition does mean that he is easily identifiable. The
allegations themselves are reported in the Italian newspaper ‘La Stampa’
because threats had been aimed at the G8 Summit to be held in Genoa and their
main author was Abu Hamza whose pronouncements at the Mosque have from time to
time been inflammatory and an encouragement to violence and terrorism.
In addition, the Mosque was searched in January 2003 and material was found
which evidenced the risk of chemical attack. There is no doubt that the
Mosque was frequented by many Islamic extremists when the appellant was
spending much time there. That does not of course of itself mean that he
was doing anything to support those who were involved in terrorist activities,
but it does suggest at the very least a sympathy with the brand of Islamic
extremism which was being preached at the Mosque. It also suggests that
he was likely to be aware of the sympathies of those who were involved in
terrorism unless they were always extremely careful to ensure that he was not
told anything which might arouse his suspicions on that score. This we
would have regarded as highly improbable. The Closed material we have
seen makes it impossible to believe.
- In his asylum claim,
the appellant said that his injuries had been caused in a bomb explosion in
Algeria and this had caused him to decide to leave Algeria and to seek
asylum. That incident had occurred in 1997 but he had not left until
January 1999 because he could not afford to do so. He stated that he had
gone to Tunis and thence to Damascus and finally Islamabad. He
left there on 18 February1999, having been provided with a forged French
passport, and flew to London via Abu Dhabi. One of his reasons for
coming to the United Kingdom was to obtain medical treatment. However,
it is to be noted that when interviewed in connection with his asylum claim a
year after his arrival he admitted that he had not received any
treatment.
- He was, as we have
said, arrested in February 2001 with others and charged with a number of
offences. When his home address was searched, there were found some 40
blank French driving licences, identity cards and passports, a credit card
reader, laminators and an embossing machine. There was also a map of
Frankfurt with a German phone book, which has some significance in the light
of the alleged support of the terrorist cell in Frankfurt which was plotting
the Strasbourg Christmas Market attack. Thus there was powerful evidence
that he had been involved in fraudulent use of credit cards and other
documents. He does not in his statement appear to deny that he was
involved in obtaining money by credit card fraud and in supplying and
acquiring false identification documents including passports. He says
that those were
“part of society …
Within refugee communities false documentation is standard currency … Credit
card fraud is widespread … It is unfortunately especially extensive within the
Algerian community since so many individuals have … involved themselves in
fraud as an easily accessible economic activity which allows many not just to
supplement their existence, but which much more importantly allows them to
send money home to relatives without any income, work or support in
Algeria.”
There is ample
evidence to support his involvement in such fraudulent activities.
The case against him is that he was doing it to raise money to further
terrorist causes and to support those involved in terrorism. The
material we have seen and considered, most of it closed, satisfies us that
that case is made out.
- The prosecution
against him was abandoned. He claims that the evidence against some of
his co-defendants in respect of involvement in fraud was more substantial but
they have not been detained. Some were not religious and did not share
the appellant’s views of the correct approach to and interpretation of the
teachings of the Koran. This, he says, shows that the fraud could not
have been a vehicle for support of terrorism. But the point is what use
was made of the proceeds of fraud by the individuals who profited from
it. Some may have been involved for different reasons than others.
And the abandonment of the prosecution does not mean that it was accepted that
he was not involved in fraud or terrorism at that time.
- We are well aware of
the difficulties in the appellant’s path in not being able to deal with closed
material. We are equally aware of Mr Blake’s difficulties in that he had
had no instructions from the appellant and no information beyond the
appellant’s statement. We have given very careful consideration to the
evidence which has been put before us and have tried with Mr Blake’s help to
give appropriate weight to all that might be said to assist his case. In
the end, we are entirely satisfied that the case against him is made
out. We have no doubt that there is indeed a reasonable suspicion that
he is a terrorist within the meaning of s.21 and a reasonable belief that his
presence in the United Kingdom is a risk to national security. Thus the
certificate was properly issued.
- We have carefully
considered whether his detention is proportionate and necessary. It so
happens that this judgment was drafted when the report of the Privy Councillor
Review Committee was available. Mr Blake had raised before us an
argument that even if we were satisfied that the certificate was properly
issued we should declare that detention was unnecessary and that the danger
from him could be adequately removed by granting bail with stringent
conditions. The power of the Commission to take this course is
recognised in paragraph 27 of the generic judgment. Suffice it to say
that we are satisfied that in this appellant’s case no conditions whether
involving tagging or restrictions on the use of phones could remove the danger
which he represents. His disability has not hitherto stopped his
activities and we are sure that he would find ways to continue to support and
to assist the terrorist cause.
- We should deal with
one other matter which is of less importance. The respondent has
asserted that the appellant comes within all three of the paragraphs of
s.21(2). It is said he was concerned in the preparation of acts of
international terrorism in relation to the Frankfurt cell and the Strasbourg
Christmas Market attack. There is ample material to create a reasonable
suspicion that he was doing things which he intended should support that cell
in its purpose, but we do not think that it goes so far as to support a
reasonable suspicion that he was concerned in preparation within the meaning
of s.21(2)(a). We are satisfied that he gave active support and
assistance to the Doha Group, knowing that it was for the purpose of
furthering terrorist activities by members of that Group. Having regard
to the nature of the Doha Group, it may be said that such support and
assistance is itself sufficient to mean that he should be regarded as a member
of that Group. We see the force of that and it is clear that there is a
degree of overlap between s.21(2)(b) and s.21(21)(c). In one sense it is
immaterial since he can properly be certified and detained whether he falls
within (b) or (c). But we think that his activities are more properly to
be regarded as falling within (c).
- In the circumstances
the appeals are dismissed.
MR JUSTICE
COLLINS
