Special Immigrations Appeals Commission

                                   Appeal no: SC/73/2009
                                   Hearing Dates: 9th, 10th, 22nd & 23rd February 2010
                                   Date of Judgment: 4th March 2010




                SPECIAL IMMIGRATION APPEALS COMMISSION




                             OPEN JUDGMENT



                                   Before:



              THE HONOURABLE MR JUSTICE MITTING (Chairman)
                   SENIOR IMMIGRATION JUDGE LATTER
                             MR M JAMES


                                    (LO)
                                                                       APPELLANT

                                     and



             SECRETARY OF STATE FOR THE HOME DEPARTMENT
                                                      RESPONDENT

For the Appellants:    Mr R Hermer, QC & Mr E Grieves
                       Tyndallwoods Solicitors

For the Respondent:    Mr T Eicke & Mr N Sheldon
                       Instructed by the Treasury Solicitor for the Secretary of
                       State

Special Advocate:      Mr M Khamisa, QC & Mr K Beal
                       Instructed by the Special Advocates Support Office

The Hon. Mr Justice Mitting :

Background


1.    LO is a 41 year old Jordanian national of Palestinian origin. He married a

      Jordanian woman in 1991. They have seven children aged from two to

      seventeen. He and his wife and, then, two children, arrived in the United

      Kingdom on 10 March 1995. He claimed asylum, listing them as his

      dependants. When interviewed by an immigration officer, he claimed to have

      been imprisoned by the Jordanian Intelligence Service for two months in or

      about June 1988 and accused of being a member of an Islamic organisation.

      When, after his release, the Jordanian Intelligence Service raided his family

      home in September 1988, he escaped. He left for Pakistan in 1989. He

      returned to Jordan in 1991 (to marry his wife) and then left again for Pakistan.

      While in Pakistan, he worked as a volunteer labourer for the Islamic Aid

      Committee, initially based in Peshawar and then in Islamabad. The director

      was Abu Al-Hasan Al-Madani. He was detained by the Pakistani authorities

      from 3 June 1994 to 18 December 1994 because, as an Arab, he was labelled

      as undesirable. He left Pakistan two days before he arrived in the United

      Kingdom, travelling via Thailand and Singapore. On 31 October 1996 his

      asylum claim was refused. He appealed to an adjudicator who dismissed his

      appeal on 17 December 1998. He was detained under immigration powers on

      17 April 1999 (having earlier been released from a sentence of imprisonment,

      as to which see below). In documents which we have not seen, he made

      further representations under (then) paragraph 346 of the Immigration Rules

      and brought a claim for judicial review. He was granted asylum and indefinite




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      leave to remain on 26 July 1999, as a stateless person. He was released from

      immigration detention on the same day.


2.    Meanwhile, he had embarked on the commission of a series of criminal

      offences, almost all involving dishonesty or the possession of false

      instruments. These are summarised in paragraph 9, below. He was released

      from his third and last prison sentence on 9 January 2006. On a date which we

      do not know, in late 2006, he was given notice of the Secretary of State s

      intention to deport him.


3.    On 15 December 2006, LO left, with valid travel documents, for Nigeria,

      without his wife and children. In April 2007, his wife and three oldest children

      went to Nigeria to stay with him for just over a month. She and his oldest boy

      then returned to the United Kingdom. The two others remained for about six

      months, when they also returned. On 24 December 2008, LO was arrested and

      detained in Nigeria. He was deported to the United Kingdom on 22 January

      2009. On 10 March 2009 he was notified of the decision of the Secretary of

      State that it would be conducive to the public good to deport him on national

      security grounds. He exercised his right of appeal to SIAC. He has been in

      immigration detention since his return. His application to SIAC for bail was

      refused on 30 April 2009. This is the hearing of his appeal against the decision

      to deport him.


Law


4.    Mr Hermer QC, for LO makes two submissions, which he has not developed,

      to protect his right to appeal against SIAC s ruling: that sufficient detail of the

      closed case must be disclosed to LO to permit him to give effective


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     instructions about it to his own advocates and/or to the Special Advocates; that

     LO is entitled to deploy evidence on the reversed closed evidence principle

     (i.e., with the Secretary of State s representatives excluded from the hearing

     when evidence given on behalf of LO is adduced). We reject these

     submissions for the reasons set out in previous rulings.


5.   Witness ZP had nothing to do with LO s case until, three weeks before the

     hearing, he set out to inform himself as fully about it as he could. Mr Hermer

     submits that, in consequence, the evidence which he can give is insufficient

     for SIAC s purposes. He submitted that SIAC should require best analysis ,

     which could only be given by the case officer or case officers who had dealt

     with LO s case. He drew an analogy with the requirement in public law

     proceedings that, when necessary, a document relied on by a public authority

     as significant to its decision, and not just a summary of the document, should

     be disclosed: Tweed v Parades Commission for Northern Ireland (2007) 1 AC 650 paragraphs 4 and 39, and National Association of Health Stores v

     Department of Health (2003) EWCA 3133 (Admin) paragraph 49. He submits

     that we should adopt the same approach as that adopted by the United States

     Courts of Appeals, District of Columbia Circuit, in Parhat v Gates 20 June

     2008, which held that a determinative fact in the appeal (the relationship of an

     Uighur Independence Group to Al Qaeda and the Taliban) was not sufficiently

     established by four US government intelligence documents which described

     the activities and relationships of the group as having reportedly occurred or

     as having been suspected of having taken place, without, in almost every

     instance, the source of the report or suspicion being identified (pp. 23-24).

     Because of those omissions, the Court held that it could not properly assess the


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reliability of the assertions in the documents. We accept Mr Hermer s

submission that, where possible, we should see the material upon which the

assessments of the Security Service are made and that we should not be

content to accept essentially unsourced assessments. It does not, however,

follow that we need, in every case, or in this one, to hear from the case officer

or case officers for an individual appellant. We can, in this open judgment,

explain the approach which we adopt to the closed material with which we are

supplied. We see the closed material upon which the Security Service

recommends to the Secretary of State that the decision under appeal should be

made, together with any subsequently generated or discovered closed material

deployed to support or undermine that decision. If, in their opinion, the

Special Advocates consider that the closed material produced is insufficient to

permit SIAC to determine the outcome of the appeal justly, they can and do

seek further closed disclosure. Further, SIAC itself is required by Rule 4(3) of

the Special Immigration Appeals Commission (Procedure) Rules 2003 to

satisfy itself that the material available to it enables it properly to determine

the proceedings. Our closed judgments are invariably founded on a close

analysis of this material. The Security Service witness has three principal

functions: to explain and justify to SIAC the collective Security Service view

about the case of an individual appellant and about particular aspects of it; to

respond to challenges to that assessment by the Special Advocates (and, where

possible, by the open advocates); and to make such further enquiries as the

Special Advocates and SIAC may require in the course of the hearing. These

duties can be satisfactorily performed only by a witness who has immersed

himself or herself thoroughly in the details of the individual case, as witness



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      ZP has done, but do not generally require that the witness has been personally

      involved in the investigation into the individual appellant in whose case he or

      she gives evidence. Mr Hermer was understandably frustrated by witness ZP s

      unwillingness to answer many of his questions in the open session. His

      unwillingness did not stem from any lack of knowledge of relevant material,

      but from his anxiety not to reveal that which could not properly be put into the

      public domain. When the issues raised by Mr Hermer in open session were

      canvassed in greater detail in the closed session, witness ZP demonstrated the

      command of the closed material which we have come to expect of Security

      Service witnesses. We are satisfied that the material available to us enables us

      properly to determine the proceedings. Like the United States Court of

      Appeals, we would not be content with substantially unsourced assessments.

      In this case, as in all others up to now, we have been able to make findings as

      to past facts on balance of probabilities and to check the assessments of the

      Security Service against the detailed materials upon which they are founded.


National Security


6.    The open case against LO is founded on three propositions: he travelled to

      Pakistan to engage in terrorism-related activity; he was and is a member of

      Jma at Al-Muslimeen (JM) and maintains links to JM; he has raised funds

      through criminal means for JM s purposes. LO admits that he went to Pakistan

      in 1989 and stayed there, apart from a visit of uncertain duration to Jordan in

      1991, until 8 March 1995. He says that he was working as a volunteer for

      Islamic Aid, a non-political humanitarian organisation sponsored by the Saudi

      Government. He took clothes, medical equipment and food to Afghan




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     families, by lorry. He admits that he became involved in JM in 1996, but has

     ceased to be involved since 2006. His involvement consisted only in attending

     group prayers and social events. He believes that JM has now been disbanded.

     In any event, it was no more than a talking-shop. He admits that he committed

     fraud, for which he served three separate prison sentences. He did not raise

     money for JM. The money which he raised through fraud was for the support

     of his family, directly, or via attempted failed business ventures.


7.   We can only reach limited conclusions about his time in Pakistan. Principally

     by reason of his subsequent activities, we are satisfied that, by the time that he

     arrived in the United Kingdom, he was a committed Islamist extremist.

     Principally for that reason, we are unable to accept that his time in Pakistan

     was spent simply as a volunteer aid worker. In reaching that conclusion, we do

     not regard it as a significant fact that the director of the Islamic Aid

     Committee, identified by LO when interviewed by immigration officers in

     1995, may have been a man listed on the United Nations asset freezing list.


8.   We are not satisfied that JM was nothing but a talking-shop. We have set out a

     more detailed assessment of JM in the closed judgment, which cannot be

     repeated here. The detention and illness of its founder and one-time leader,

     Mohammed Al Rifai was bound to diminish its cohesion and effectiveness;

     but we do not accept that it has ceased to exist or to pose some threat to the

     national security of the United Kingdom. We do not accept LO s claim to have

     severed links with JM in 2006 and accept the assessment of the security

     service that he did retain such links. The reasons for this finding are set out in

     the closed judgment.




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9.   Mr Hermer submitted that the prosecution case summaries did not support the

     Security Service s conclusion that LO was engaged in large-scale fraud, let

     alone fraud with a terrorist-related purpose. We are satisfied, at least on

     balance of probabilities, that LO was engaged in large-scale fraud, in part with

     that purpose. Our reasons for that conclusion are in part set out in the closed

     judgment, but can, in part, be stated here. LO began to embark on crimes of

     dishonesty soon after his arrival in the United Kingdom. He was cautioned on

     19 December 1996 for theft and kindred offences (441c). On 24 September

     1997, police, intending to speak to him about an attempt to obtain a

     lawnmower by deception one week earlier, searched his car and house. They

     found twenty Tesco Clubcards cloned with other people s bank details, some

     of which had been put to fraudulent use. (186-188). His car was searched

     again on 26 January 1998. Quantities of new property in sales bags with

     receipts were found. The receipts had been made using compromised credit

     cards. Seven cloned Tesco Clubcards, encoded with MasterCard and Visa

     details were also found. On 30 July 1998 he was sentenced at Kingston Crown

     Court to a total of two years imprisonment for these offences. He was released

     on 28 January 1999. Deportation was recommended. (441d). His second

     prison sentence, also for two years, was imposed on 22 December 1999 at

     Kirkcaldy Sheriff Court. Mr Eicke, for the Secretary of State, suggested that

     this sentence was deferred       i.e. suspended. The PNC record shows that

     sentence was deferred from 6 to 22 December 1999, but then imposed with

     immediate effect. (441d). This is the second of the three sentences of

     imprisonment which LO admits having served. The date of his release is not

     known. On 11 April 2002 a search of the car which LO was then driving



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      revealed 20 blank plastic and Fina petrol cards all of which were cloned with

      credit card details. On 24 July 2002 LO was charged with having false

      instruments    the cloned cards    and bailed to appear at a Magistrates Court

      two days later. He did not attend (181). On 26 August 2004, a search warrant

      was executed at his house, where he was discovered hiding in the loft. In his

      car and in the house, quantities of new goods were found inside carrier bags

      with their receipts. They had been bought on three occasions in August using

      Switch Cards in the name of three different men. LO was charged and

      detained. (181 and 192-193). On 14 January 2005 at Kingston Crown Court,

      LO was sentenced to a total of 30 months imprisonment for the 2002 and 2004

      offences and to three months imprisonment consecutive for an offence of

      assault with intent to resist arrest committed in 2002. (441e-f). He was

      released on 9 January 2006. In paragraph 19 of his witness statement dated 12

      August 2009, LO admits that he raised money through fraud and, impliedly,

      did so on a scale sufficient to support failed business ventures. For reasons

      which are in part set out in the closed judgment, we are satisfied that LO s

      fraudulent activities extended far beyond the specific offences of which he

      was convicted. They simply provide a snapshot of his activities on a limited

      number of days. The closed material satisfies us that part of the proceeds of

      his fraudulent activity went to support JM and its terrorism-related activity.


10.   For reasons which are set out in the closed judgment, we do not accept LO s

      contention that he ceased to be associated with JM and members of JM in

      2006. Nor do we accept that he has not been engaged in terrorism-related

      activity whilst in the United Kingdom and elsewhere. We are satisfied, on

      balance of probabilities, that until his detention under immigration powers in


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January 2009, he did undertake activities that did pose a threat to national

security and that, if he were to be at liberty in the United Kingdom, he would

continue to pose such a threat.




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