ON APPEAL FROM
SPECIAL IMMIGRATION APPEALS COMMISSION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE JACKSON
| SS (LIBYA)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPT
|- and –
Tim Eicke QC, Kate Grange (instructed by Treasury Solicitors) for the Respondent
Martin Goudie appeared as Special Advocate
Thomas De La Mare & Tom Hickman appeared for the Intervener
Hearing date : Thursday 3rd November, 2011
Crown Copyright ©
LORD JUSTICE CARNWATH :
"(c) he has been guilty of acts contrary to the purposes and principles of the United Nations"
"In it, he denied that he had ever belonged to the LIFG, said that he was not aware of its objectives, and that he only knew the names of some of its members because they had been mentioned in the media. He said that he did not support the use of violence to overthrow Colonel Gaddafi and had not helped to raise money to help others to do so."
Of this evidence the panel commented:
"Like the adjudicator who dismissed his original asylum appeal, we do not believe anything which he has said which is material to his asylum claim. He was an unimpressive witness. He did not, as some of his colleagues and former colleagues have done, begin to tell the truth about his beliefs and actions in the period before he left Libya and before and after his arrival in the United Kingdom. To the extent that we are able to make findings about those matters, they are set out in the closed judgment and are based on closed material. We are satisfied that he was, while in the United Kingdom and almost certainly before his arrival, a member and supporter of the LIFG." (para 3)
They accepted that the finding that he was a member and supported of LIFG was not in itself determinative of the appeal.
"Perhaps unsurprisingly there is no internationally agreed definition: one man's terrorist is another man's freedom-fighter." (para 8)
"15 … The fundamental definition of terrorism… is the use or threat of action designed to influence a government or to intimidate a population by serious acts of violence and some acts of economic disruption.
16. We have not been referred to and are not aware of any widely accepted international definition of terrorism which differs in any essential respect from that summarised above. There is clearly room for debate about the inclusion of serious disruption to the economic infrastructure of a country not caused by violence in the definition and an implied exclusion of lawful acts of war, possibly including civil war. (cf. KJ (Sri Lanka) v SSHD, below). But we doubt that any international organisation or reputable commentator would disagree with a definition of terrorism which had at its heart the use or threat of serious or life threatening violence against the person and/or serious violence against property, including economic infrastructure, with the aim of intimidating a population or influencing a government, except when carried out as a lawful act of war."
"18. For present purposes, we rely, we believe uncontroversially, on the following sources: the report of Alison Pargeter of 31 March 2010, paragraph 1.vii, an article by Moshe Terdman in the June 2005 edition of PRISM occasional papers, page 3, and the article by Omar Ashour of 26 April 2010 in The Star. Between 1995 and 1998, the LIFG conducted a number of violent attacks in Libya. The first two were at a hospital and at a prison, to release detained comrades. There were fierce clashes between security forces and LIFG members in Benghazi in September 1995, leaving dozens killed on both sides. Thereafter, the LIFG carried out targeted attacks on police stations and high ranking officials within the Libyan Government and security services. In June 1996, LIFG fighters killed eight policemen at a training centre in Derna. As many as three assassination attempts were made against Colonel Gaddafi: the first in February 1996, when several of his bodyguards were killed; the second in November 1996, when a grenade was thrown at him and missed; and the third in 1998, when his vehicle was ambushed in Egypt. According to Omar Ashour, these attacks left 165 Libyan "officials' ' dead and 159 injured. LIFG losses were comparable.
19. All of these acts were, as far as we can tell from the brief descriptions from which we have culled that summary, acts of terrorism…."
"21 ... we do not accept that terrorism must have an international character or aspect in order to come within Article 1(F)(c). As Security Council Resolution 1624 makes plain, it is the duty of states to deny safe haven to those who have committed a terrorist act. The assassination of a political leader by a national of the same state pursuant to a plot entirely organised and financed within that state can be just as much capable of disturbing the peace of the world as an identical attack financed from abroad. There is no rational basis for distinguishing between the two. In any event, most terrorist organisations of any scale, and certainly the LIFG, are internationally organised or financed or have international links…"
"22. LIFG members have, for many years, shared facilities and fought with Al Qaeda in Afghanistan. Some of them, led by Abu Laith attempted to secure the merger of Al Qaeda and the LIFG in 2007. Abu Laith was killed, and the merger did not take.... (Counsel for SS) accepts that these activities were terrorist activities. To the extent that any UK based member of the LIFG provided support or encouragement to such activities, they would, in our view, have been guilty of acts contrary to the principles and purposes of the United Nations and so excluded from asylum under Article 1(F)(c)."
"...serious reasons for considering him voluntarily to have contributed in a significant way to the organisation's ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose" (R (JS) (Sri Lanka) v SSHD  1AC 184, para 38-9).
This was also consistent with the three stage test proposed by the Advocate General in Joined Cases C-57/09 and C-101/09 B and D v Germany para 77 to 79.
The issues in the appeal
i) The panel erred in finding that there was no need for any disclosure to the Appellant of the allegations against him of involvement in terrorism;
ii) In any event, it made findings which were contrary to the SSHD's open case;
iii) It adopted an incorrect definition of 'terrorism', and in particular erred in not following the decisions of the Court of Appeal in Al-Sirri v SSHD  EWCA Civ 222 and KJ (Sri Lanka) v SSHD  EWCA Civ 292;
iv) It erred in finding that the LIFG had carried out acts of terrorism, as opposed to acts of war, and/or in overlooking the lack of an international dimension;
v) It failed in any event to make any findings that the Appellant had contributed in a significant way to any terrorist actions [not pursued];
vi) It erred in finding that there was no difference between the definition of terrorism for purposes of the Refugee Convention and that applicable in respect of subsidiary protection under Council Directive 2004/83/EC.
The panel granted permission to appeal on grounds (iii), (iv) and (vi), but not on grounds (i), and (ii), for which he needs the permission of this court. On issue (i) (need for disclosure) the appellant, supported by an intervention from JUSTICE, argues that we should make a reference to CJEU.
"I believe that it was right to do so. The judge at first instance must have access to it where it is said that disclosure of relevant material will be contrary to the public interest, and the Court of Appeal may perhaps need to too if this is necessary for the exercise of its jurisdiction under section 11(3) of (the Prevention of Terrorism Act) 2005. But the process should stop there. The function of the House, as the final court of appeal, is to give guidance on matters of principle. Its judgments must be open to all, not least to the controlled person. The giving of reasons in a closed judgment, which would be inevitable if it were to be based to any extent on closed material, is inimical to that requirement. It is hard to imagine any circumstances in which scrutiny of such material by the House, or by the Supreme Court when it comes into existence, would be necessary or appropriate." (para 88)
[PTA s 11(3) confines appeals in control order proceedings to questions of law.]
The issues in the appeal
Terrorism – generally and in this case
i) Definition What is the correct definition of terrorism for the purposes of this case? For this purpose is there any material difference between the approach under Refugee Convention and that under the Qualifications Directive?
iii) The facts In the light of the answers to the previous questions, did the panel err in finding that the LIFG had carried out acts of terrorism, as opposed to acts of war, or in overlooking the lack of an international dimension?
"28. Ours being a dualist system of law, the Refugee Convention has no domestic force save to the extent that it is adopted by national legislation. Formerly the route lay through the Immigration Rules, with their origin in the Immigration Act 1971. Since 2006 it has been through the Qualification Directive, which is given domestic force by the European Communities Act 1972. This is not merely a technical fact: by common consent it conditions and qualifies the application of s.1 of the Terrorism Act to art. 1F proceedings.
29. The reason is this. As has been seen, art 12 of the Directive, which sets minimum standards for the protection that member states are committed to give asylum-seekers, by paragraph (2)(c) reproduces the class of acts stigmatised by art. 1F(c) – acts contrary to the purposes and principles of the United Nations – and defines these by reference to paragraphs 1 and 2 of the Preamble to the Charter. Mr Eicke, on behalf of the Home Secretary, has not disputed that, even taken at its most generous, this formula does not go as wide as s.1 of the Terrorism Act 2000. It follows that the adoption by s.54(2) of the 2006 Act of the meaning of terrorism contained in the 2000 Act has where necessary to be read down in an art. 1F case so as to keep its meaning within the scope of art 12(2)(c) of the Directive."
i) The Refugee Convention continues to have effect under immigration law. However, for domestic purposes, the application of article 1F(c) is qualified by section 54 of the 2006 Act, which in turn brings in the definition of "terrorism" in the Terrorism Act 2000.
ii) The Qualification Directive takes effect in domestic law by a different route; that is, under the European Communities Act 1972, by virtue of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006/2525. Neither the 2006 Act (nor by the same token the 2000 Act definition of terrorism), has any direct application. However, as the judge rightly said, authoritative guidance as to the meaning of terrorism in this context is to be found in the European Council's Common Position 2001/931/CSFP, a usage approved by the CJEU Grand Chamber in B and D v Germany para 90.
"the use or threat of action designed to influence a government or to intimidate a population by serious acts of violence and some acts of economic disruption." (para 15)
The CA cases
"34. The first question that arises in the present case is: what are 'acts contrary to the purposes and principles of the United Nations'? It is clear that acts of terrorism – in particular the deliberate killing or injuring of civilians in pursuit of political objects – are such acts. The Tribunal in their decision under appeal stated that acts contrary to the purposes and principles of the United Nations are not to be equated with acts of terrorism. It is unnecessary for me to debate this issue, because Mr Johnson did not suggest that acts of a military nature committed by an independence movement (such as the LTTE) against the military forces of the government are themselves acts contrary to the purposes and principles of the United Nations. I do not think that they are. Moreover, the Tribunal in its determination under appeal seems to have accepted that an armed campaign against the government would not constitute acts contrary to the purposes and principles of the United Nations. For present purposes it is necessary to distinguish between terrorism and such acts." (emphasis added)
"37 The application of Article 1F(c) will be straightforward in the case of an active member of organisation that promotes its objects only by acts of terrorism. There will almost certainly be serious reasons for considering that he has been guilty of acts contrary to the purposes and principles of the United Nations.
38 However, the LTTE, during the period when KJ was a member, was not such an organisation. It pursued its political ends in part by acts of terrorism and in part by military action directed against the armed forces of the government of Sri Lanka. The application of Article 1F(c) is less straightforward in such a case. A person may join such an organisation, because he agrees with its political objectives, and be willing to participate in its military actions, but may not agree with and may not be willing to participate in its terrorist activities. Of course, the higher up in the organisation a person is the more likely will be the inference that he agrees with and promotes all of its activities, including its terrorism. But it seems to me that a foot soldier in such an organisation, who has not participated in acts of terrorism, and in particular has not participated in the murder or attempted murder of civilians, has not been guilty of acts contrary to the purposes and principles of the United Nations."
"The Tribunal failed to define what acts that were not terrorist in nature were acts contrary to the purposes and principles of the United Nations, and did not identify any facts that constituted serious reasons for considering that KJ had been guilty of them. The word 'complicit' is unenlightening in this context. In my judgment, the facts found by the Tribunal showed no more than that he had participated in military actions against the government, and did not constitute the requisite serious reasons for considering that he had been guilty of acts contrary to the purposes and principles of the United Nations." (paras 34-40)
"(1) In this Act "terrorism" means the use or threat of action where -
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.".
"... appear to preclude the conclusion reached by the Court of Appeal. LTTE military action must have involved the use of firearms and explosives (artillery shells) and was undoubtedly undertaken for the purpose of advancing a political cause - the independence of North East Sri Lanka. As such, it falls squarely within the definition of terrorism in Section 1. It is possible that, as counsel for the Secretary of State conceded, and Sedley LJ observed, in Al-Sirri v SSHD, the natural meaning of the words in Section 1 may not provide a complete answer; but the authority of a decision which does not even address the question must itself be called into question. We are driven to the conclusion that the observations in KJ were made per incuriam and do not bind us."(para 17)
"55. KJ appears to be authority for the proposition that military action directed against the armed forces of the government does not as such constitute terrorism or acts contrary to the purposes and principles of the United Nations. SIAC in SS stated that these observations were made per incuriam. I am not prepared, in the absence of argument beyond that addressed to this court to hold that the observations were per incuriam and it does not appear to me that they were, though the circumstances in which acts of violence against a government are acts of terrorism is a difficult question. Serious violence against members of the government forces would normally be designed to influence the government and be used for the purpose of advancing a political, religious or ideological cause, within the meaning of those words in section 1 of the 2000 Act. On the other hand, it is difficult to hold that every act of violence in a civil war, the aim of which will usually be to overthrow a legitimate government, is an act of terrorism within the 2000 Act." (emphasis added)
Application to the facts
"... these consisted of (i) actions aimed at freeing detained colleagues (ii) fighting with the security forces and (iii) attacks on police stations and high-ranking officials (including attempts to assassinate Colonel Gadaffi). It was uncontroversial that the LIFG had committed them. But they were not characterised as engendering terror in citizens. They were not said to have an international dimension. They were not characterised as involving violence disproportionate to claimed political objectives, indiscriminate and aimed at third party citizens or persons not connected to political ends being pursued. They were acts of a military nature committed by a movement against the military forces of the government. Only by a misapplication of the law were they regarded by the Commission as acts of terrorism."
"Does the principle of effective judicial protection require that a judicial body considering an appeal from a decision to exclude a third country national or stateless person from refugee status or subsidiary protection, on grounds that he or she has been guilty of acts contrary to the purposes and principles of the United Nations under Article 12(2)(c) and Article 17(1)(c) of Directive 2004/83, ensure that the individual concerned is informed of the essence of the grounds against him, notwithstanding the interests of state security?"
Mr Fordham, supported by an impressively argued intervention from JUSTICE, submits that we should take the same course in this case.
(ii) Findings contrary to open case
"[SS] is assessed by the Security Service to be a member of the LIFG, who holds strong Islamist extremist views and has a range of contacts across the LIFG community. During his residency in the UK, the Security Service assesses that [SS] has been involved in terrorism related activity. [SS] is not currently considered to be a significant threat to national security. The Security Service assesses that [his] actions whilst resident in the UK are contrary to the purposes and principles of the United Nations, and as such the Security Service recommends that this asylum appeal should be denied" (First Open Amended Statement para 9, emphasis added)
The previous paragraph had referred to an Open Letter by UK LIFG released on 3rd July 2009, in which it supported the Group's decision to cease military action in Libya, and also emphasised that suggestions by Abu Laith al-Libi concerning links with Al-Qaeda did not represent the Group's policy. The Open Statement accepted that SS was "broadly supportive" of this position, but commented, by reference again to the Security Service assessment:
"… despite the progress made by some leading UK figures, the LIFG continues to meet the criteria for a proscribed terrorist organisation under the Terrorism Act 2000. Further… the LIFG as a whole remains a threat to UK national security despite the release of the UK LIFG statement and the diminishing threat from the organisation's UK branch. "
"However, the Security Service continues to assess that during his residence in the UK [SS] has been involved in Islamist extremist activities" (Second Open Statement para 5)
Under the heading, "potentially exculpatory material", it is said:
"The Security Service assesses that [SS] does not pose a significant threat to the UK. Throughout 2009 the UK LIFG made a series of group and individual statements renouncing violence, rejecting a merger with Al Qaida and endorsing peaceful negotiations with the Libyan government. The Security Service assesses that [SS] is broadly supportive of this stance. However the Security Service assesses that [SS] has historic links to Islamist extremist activity…." (para 6)
The statement concluded:
"The Secretary of State maintains the view that since [the Appellant] has been resident in the UK he has acted against the purposes and principles of the UN, namely acts of terrorism." (emphasis added)
"while in the United Kingdom and almost certainly before his arrival, a member and supporter of the LIFG" (para 3, emphasis added)
Even ignoring the doubt implied by the words "almost certainly", and even assuming there was evidence in the closed material to support this finding, it was not open to the panel to base their conclusion on a finding which went beyond the allegation on which the open case was based.
17. … an Islamist extremist organisation which had started in the Afghanistan/ Pakistan border area in 1990, with strong Taleban connections and many members who, even then, had significant connections to Al Qaeda operatives…. [and] carried out a number of terrorist attacks in Libya or claimed to have done so, including at least one assassination attempt on Colonel Qadhafi…."
Having discussed the evidence of links between LIFG members and Al Qa'eda, the judgment continued:
" 30. In our view, whether or not the LIFG generally has close Al Qa'eda connections, or has become more global in outlook, it has not abandoned its aims in Libya. That is a facet of the global jihadist aims anyway. But if the LIFG had no broader outlook in general, the focus on Libya would be yet the more important to it. It is not the force it once was in Libya; it has been significantly degraded by actions taken against it in the 1990s and by the recent arrests of its leaders, now in Libya. The impact of the arrests in the UK with a view to deportation will have weakened it. But that cannot logically be taken as a permanent state of affairs, showing that they now represent no threat to the UK's national security. There clearly are a number of LIFG members, and other individuals in the UK hostile to Colonel Qadhafi, prepared actively, for example through accommodation during planning and preparation, false documents, fund raising, training and the purchase of equipment, to support the use of violence against his regime if they have the chance. The existence of a UK base from which violent action against Colonel Qadhafi can be planned would be an encouragement to the group to grow in strength."
LORD JUSTICE RIMER :
LORD JUSTICE JACKSON :