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You are here: BAILII >> Databases >> Special Immigrations Appeals Commission >> Naseer & Ors v Secretary of State for the Home Department [2010] UKSIAC 77/2009 (18 May 2010)
Cite as: [2010] UKSIAC 77/2009

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                                                             Appeal no: SC/77/80/81/82/83/09
                                                             Hearing Dates: 9th 26th March 2010
                                                             Date of Judgment: 18th May 2010


                                       OPEN JUDGMENT


                   THE HONOURABLE MR JUSTICE MITTING (Chairman)
                         SENIOR IMMIGRATION JUDGE WARR
                                   MR J DALY




For the Appellant Abid Naseer:             Mr J Bennathan QC and Ms S Harrison (instructed by
                                           Birnberg Peirce & Partners Solicitors)

For the Appellant Ahmad Faraz Khan:        Baroness Kennedy QC and Mr E Grieves (instructed by
                                           Birnberg Peirce & Partners Solicitors)

For the Appellants Shoaib Khan,            Mr A Malik, solicitor-advocate (of Amjad Malik Solicitors)
Abdul Wahab Khan & Tariq ur Rehman:

For the Respondent:                        Mr R Tam QC, Mr A O Connor and Mr S Gray (instructed by
                                           the Treasury Solicitor)

Special Advocates for the Appellant        Mr C Cory-Wright QC and Mr K Beal (instructed by the
Abid Naseer:                               Special Advocates Support Office)

Special Advocates for the Appellant        Mr A McCullough QC and Mr Z Ahmad (instructed by the
Ahmad Faraz Khan:                          Special Advocates Support Office)

Special Advocates for the Appellants       Ms C McGahey and Mr B Rawat (instructed by the Special
Shoaib Khan, Abdul Wahab Khan &            Advocates Support Office)
Tariq ur Rehman

                                               Page 1

The Hon. Mr Justice Mitting :


1.     Abid Naseer is a 24 year old Pakistani national from Peshawar. He entered the
       United Kingdom on a student visa issued on 5 September 2006 with leave to
       enter until 31 October 2009. He began a computer course at Liverpool John
       Moores University, but withdrew from the course after a week, claiming that it
       was too difficult for him. He claims that he then undertook a diploma in
       English at an institution with a dubious reputation, Manchester College of
       Professional Studies and moved to Manchester. He returned to Pakistan in
       2007 and, again, between 26 September and 20 November 2008. From his
       return until 8 April 2009, he lived at 36 Galsworthy Avenue, Manchester, with
       5 (eventually 6) other individuals who are not the subject of these proceedings.
       He was arrested on 8 April 2009, released without charge into immigration
       detention on 22 April and on the same day served with notice of intention to
       deport on conducive grounds for reasons of national security. He appeals
       against that decision. On 29 October 2009, he applied for further leave to
       remain. His application was refused by a letter served on 8 February 2010,
       under paragraph 322(5) of the Immigration Rules. He appeals against that
       decision, too.

2.     Ahmad Faraz Khan is a 26 year old Pakistani national, from Bannu. He
       entered the United Kingdom on a student visa issued on 8 September 2006, to
       undertake a course in computer studies at Liverpool John Moores University.
       He became ill and withdrew from the course. He applied for, and was granted
       a deferral to January 2007 but, instead, claims to have undertaken a course at
       Manchester College of Professional Studies. He restarted a Masters course in
       Computer Security at Liverpool John Moores University in September 2008,
       with considerable success. Like all of the other appellants, he was arrested on
       8 April 2009 and served with notice of intention to deport on conducive
       grounds on 22 April. He appeals against that decision. His original visa
       expired on 31 January 2008, but he applied, successfully, for it to be extended
       until 31 December 2009. An application for further leave to remain, made on 8
       December 2009, was refused under paragraph 322(5) of the Immigration
       Rules, by a letter dated 22 February 2010. He appeals against that decision.

3.     Tariq Ur Rehman is a 39 year old Pakistani national from Miran Shah. He is a
       widower, with two daughters who live in Pakistan. He entered the United
       Kingdom on a student visa in September 2007 with leave to enter until 31
       December 2008, to study at Liverpool John Moores University. He did not
       attend the university and instead claims that he sought admission to
       Manchester College of Professional Studies, to undertake a Diploma in
       English. He applied for a highly skilled graduate worker visa on 28 September
       and was granted leave to remain until 29 September 2010. He returned to
       Pakistan from 16 November 2008 until 24 March 2009. On attempting to re-
       enter the United Kingdom, his leave to remain was cancelled and he was
       granted temporary admission. The reason for the cancellation was that
       documents which he had submitted, including a postgraduate Diploma in
       Business Management, purportedly issued by the Cambridge College of
       Learning, were false. He was arrested on 8 April 2009 and a notice of

                                        Page 2

     intention to deport on conducive grounds was served on him on 22 April. He
     left for Pakistan on 10 June 2009, whereupon the notice of intent to deport him
     was revoked. On the same day, his leave to remain was cancelled under
     paragraph 321A(2) of the Immigration Rules. He was also refused leave to
     enter under paragraph 323(i) of the Immigration Rules on the ground that his
     presence in the United Kingdom was not conducive to the public good for
     reasons of national security. He appeals against both decisions.

4.   Abdul Wahab Khan is a 27 year old Pakistani national from Tank. He arrived
     in the United Kingdom on 2 October 2006 on a student visa sponsored by
     Liverpool John Moores University. His leave to remain was extended until 31
     December 2009. He did not undertake the course at Liverpool John Moore s
     University but, instead, in March 2007 claims to have undertaken a four month
     course at the Manchester College of Professional Studies. He began a course
     in computer network security at Liverpool John Moores University in
     September 2008, which he was undertaking successfully. He was arrested on 8
     April 2009 and served with notice of intention to deport on conducive grounds
     on 22 April. He left the United Kingdom on 21 August 2009, whereupon the
     notice of intention to deport was withdrawn. On 18 December 2009 he was
     notified of a decision to cancel his leave to remain under article 13(7)(b) of the
     Immigration (Leave to Enter and Remain) Order 2000 on the ground that his
     presence in the United Kingdom would not be conducive to the public good
     for reasons of national security. He appeals against that decision.

5.   Shoaib Khan is a 31 year old Pakistani national. He entered the United
     Kingdom in 2005 on a student visa valid until 25 August 2006, to study at
     Middlesex College. On 9 September 2006 he was granted further leave to
     remain until 31 October 2007, to study accountancy at Kaplan in Manchester.
     He was granted two further extensions to his visa, expiring on 31 January
     2010. He made three visits to Pakistan in December 2007, March 2008 and
     December 2008. He was arrested on 8 April 2009 and a notice of intention to
     deport on conducive grounds was served on him on 22 April. He left for
     Pakistan on 21 August 2009, whereupon the notice of intention to deport was
     withdrawn. On 18 December 2009 his leave to remain was cancelled under
     article 13(7)(b) of the Immigration (Leave to Enter and Remain) Order 2000
     on the ground that his presence in the United Kingdom would not be
     conducive to the public good for reasons of national security. He appeals
     against that decision.

6.   Despite the differences in the procedural route by which decisions to deport or
     exclude the appellants have been taken, the first issue in each case is the same:
     is it conducive to the public good for reasons of national security to deport or
     exclude the appellant? In Rehman s case, there is an additional ground: the
     making of false representations and the submission of false documents to
     obtain leave to remain under paragraph 321A(2) of the Immigration Rules. In
     the cases of Naseer and Faraz, there is a second issue: can the United
     Kingdom deport them without breaching their rights under Article 3 ECHR?
     In the cases of Rehman, Wahab and Shoaib, they seek on Article 3 grounds
     a direction to facilitate entry clearance for them.

                                       Page 3

National Security

7.    The Secretary of State s case is that each of the appellants was a party to a plot
      to carry out a mass-casualty attack in North West England between 15 and 20
      April 2009. The open case is founded upon a series of emails exchanged
      between a Pakistani registered email account and
      an email account admittedly used by Naseer between
      30 November 2008 and 3 April 2009. The Security Service s assessment is
      that the user of the sana_pakhtana account was an Al Qaeda associate, that the
      messages from humaonion described different ingredients for explosives and
      identified, in general terms, the operatives who would carry out the attack and
      that, in the email of 3 April 2009, Naseer declared his and their intention to
      carry out a mass-casualty attack between 15 and 20 April.

8.    In reaching the conclusions expressed below, we have taken into account a
      substantial volume of closed material. Our decisions have been based
      substantially or, in some instances determinatively, upon that material. The
      open advocates have submitted that it is not open to us to reach a decision by
      that means. The issue is to be determined in an appeal to the Court of Appeal
      in June in other cases. We have applied SIAC s settled jurisprudence on this
      question. If an appellate court decides that we have been wrong to do so, any
      unsuccessful appellant will be entitled to have his appeal re-determined in the
      light of the appellate court s decision.

9.    For reasons which are wholly set out in the closed judgment, we are sure
      satisfied to the criminal standard that the user of the sana_pakhtana account
      was an Al Qaeda associate.

10.   Naseer admits that he set up the humaonion account. Given that it was set up
      on 14 November 2008, it follows that he set it up in Pakistan (he did not fly
      back to the United Kingdom until 20 November). The sana_pakhtana account
      was set up on 30 November 2008 at 11.03 GMT in Pakistan. At 11.16 at the
      same day the following message was sent to the humaonion account:

              Subject: sohaib here


             how are you I am fine tell me that how are you any kink of help
             for me so plz tell me ok. and salam to ur girl friend from my
             side. and how is going on ur study wish you all the best good


      At 22.33 GMT on the same day, the message was accessed at Naseer s
      humaonion account. On 3 December at 11.33 Naseer sent the following
      message to sana_pakhtana:

                                        Page 4

       Subject: sohaib here


      Thanks for discovering about me. I am doing well and having a
      good time. Hope you ok as well. I have been thinking of you
      for long time and was delighted to hear from you. How is the
      weather over your side? How are your mates doing? I have
      heard that shahkirullah was not feeling well. I hope he is, his
      family and friends are ok. I went to see my mates in other city
      and came back last week. The weather over here is very cold. I
      saw a slight glimpse of Huma day before yesterday but she was
      very weak and difficult to convince. She says she is busy with
      her studies and it will take her long. Nadia is more gorgeous
      than huma at the moment and she is easy to befriend and since
      new year is coming so I guess she will suit me on that moment.
      Nadia is crystal clear girl and it wont take long to relate with
      her. Her parents like me as well. What do u suggest my friend?

      That s all from my side. Pay salam to aisha and chotu.

      Take care.

On 14 December at 12.18 (following an aborted attempt at 12.10),
sana_pakhtana replied:

       Subject: Re: sohaib here new mail

      walaikum salam

      how are u i hope u will fine. we all are fine and shakirullah and
      has family are find and how is going on ur study now a days ?
      and the weather is fine here nice weather here. and
      conragulation eid day u and ur family from my side.. any kind
      of help for us so plz tell me ok. hmm tell me that how is ur
      sweety girl friend I miss her alot and pay to my salam for her,
      Thats all from my side. Pay my salam to all students

      replay me

      take care

Naseer read the message on 15 December and replied at 20.47 at the same

                                Page 5

        Asalamo Aliakom

       Many thanks for your Eid Greetings. Eid Mubarak to you and
       all your family and friends. I am very well at at the moment and
       I also enjoyed my eid as well. We had loads of meat to eat. I
       did my own qurbani at home and all my mates were so
       delighted to see bags of meat. I am sure you had a cheerful Eid
       day. It is good to hear about shahkirullah,s good health. Pay my
       Eid greeting to him as well.

       Everything is going well over here. Weather is nice and cool.
       We had snowfall recently follwed by tonnes of rain water
       LOL.. My study is going well. I am looking for work at the
       moment because I am jobless. A friend of me told me he will
       keep me at this shop but without pay. The day I understand the
       procedure of working they will start paying me. I am happy at
       this place. He is a nice guy.

       About my Girl Friend. As I told you about huma,s affair. She is
       nice and I still love her. Somebody told me she works in my
       friend,s shop I am going to join so lets see If she is still there. I
       will ask the staff and other fellows if she was or is around then
       we will see what happens. Nadia is still waiting for my
       response. She is very loyal and She has created a place in my
       heart. You know Gulnaz and fozia. WOW man. I would love to
       get them in my friends list but you know I have been thinking
       about their abilities. Gulnaz sounds ok but she is found of
       money and in order to approch her I must find work to save
       money. Fozia is some times bull shit. She lets you down
       sometime. I haven t got her contact number. I will try to figure
       out her contact and then I will talk to her.

       I am still keeping my car because most of the jobs they ask for
       it and other reason is you know girls mostly like guys with car.
       They love money and nice car. Thats they all about.

       Thats all for now. Pay my good wishes to chuto. Take are of
       your self.

       Allah Hafiz

On 1 January 2009 Naseer created a new account:
On 4 January at 13.00, he sent a message on that account to sana_pakhtana:

        Subject: Shobi

       Salam Shobi How are you there? How is your family and
       friend,s? I hope they are ok. its very cold over here and there is
       no rain. The weather is dry. I am enjoying my self and my girl

                                   Page 6

       friend is ok as well. I have found work so most of the time I am
       busy at it. How is shaki, his wife and his kids. They are grown
       up now I guess. Anyways thats all nothing new. Take care
       Allah hafiz


(Naseer explained that the signature Zeeshan was a mistake. This statement
was not challenged). sana_pakhtana did not reply to that message. The text of
the next message, sent on 15 January at 12.38 reads like a reply to Naseer s
message of 15 December 2008:

        Subject: Re:

       walikum o salam

       thank for good mail nice I am very happy to see it. We all are
       five and told me how are u. i hope u will fine inshallah. and
       how is going on ur study and ur life. chotooo is also fine and be
       happy. hmmmm so u have alot of girl friendsss me also like
       girlsssss pay my salam for ur girls friend ok when ever u will
       marii soo plz first seee ur girl friend how is she is she nice
       and beautiy and honest. bec we marii in life on one time there
       for we can seee and be carefull and be relaxx then u marii
       okkkkkkk and see a new car and take buy it and any kind of
       help from my sife plz telll me okkkkkk

       bye bye take careeeeeeee

On 26 January, at 11.09, Naseer sent a message on the chipyparveen account,
which he repeated, from the humaonion account on 16 February at 13.35:

        Subject: Salam Shobi

       Salam, Well it has been long time no see LOL. Anyways I am
       glad to have your mail. I am doing well thanks. I have found a
       security job now and there is good money in it. I was in need of
       money because of the family problems and above all the
       marriage ceremony. You know what girls are like. They
       demands loads of stuff Jewellery, Dresses, beauty things and
       many more. The girls born over here are very modern so you
       have to take care of their demands every time. I am satisfied
       with my company of females LOL. They are simple and easily
       managable. All you have to do is to be serious and give them
       plenty of time. I am constantly in touch with the famalies of the
       girls I mentioned before and will choose which ever can be my
       faithfull and loving wife. I am bore of being a bachelor now

                                  Page 7

            LOL so I would try to make it happen in the near future. I will
            be careful about my choice beacuase your whole family life
            depends upon the decision. I will look at every aspect of their
            family and relatives and I am sure when the engagement is
            finalised then it will be huge party for everyone. I am trying to
            include as many as possible in ceremony when it take place and
            hopefully it will happen. As you mentioned about the car, well
            yes I am saving some money to buy a nice and reliable vehicle
            which will be enough for my bride and my childrens in future
            LOL. I hope everyone of your family members including
            youngesters and elders are fine and enjoying best of their
            health. The weather is getting warmer nowadays and Nothing
            new happening to write down. Pay my salam to chotu and love
            to Ali. Any kind of service plz do write to me. Thanks and kind

      Sana_pakhtana did not reply. The final message was sent on the humaonion
      account at 16.19 GMT on 3 April 2009:

             Subject: Re: sohaib

            Hi Buddy,

            I am sure my mail will find you in good health and all your
            family members are enjoying them self. I am doing well as
            usual and having good time. The weather is getting warmer
            here and we have loads of things to enjoy. You know how is it
            over here when its summer. People out to the beaches and
            going on holidays. Well we had some short trips to riverside as
            well. My mates are fine and yes my affiar with Nadia is soon
            turning in to family life. I met with Nadia family and we both
            parties agreed to conduct the nikah after 15th and before 20th of
            this month. I have confirmed the dates from them and they said
            you should be ready between these dates. I am delighted that
            they have strong family values and we will have many guests
            attending the party. I am sure Nadia was the right choice for me
            at this time because I was getting older day by day LOL.
            Anyways I wished you could be here as well to enjoy the party.
            Thats all from here, nothing new to write down. Pay my love to
            little Hasan and regards to all your family members.


            Kind Regards

11.   In an unsigned and undated detailed witness statement prepared for these
      proceedings, adopted and, with amendments repeated in his oral evidence,

                                      Page 8

      Naseer has provided a detailed explanation of the emails. In summary, it is as
      follows. He was searching for a wife. One of the means of doing so was by
      accessing chat rooms in which he could meet Muslim women. The
      humaonion account was set up for this purpose, as was demonstrated by the
      large number of accounts with womens names which he accessed from it.
      One of the accounts which he accessed was sana_pakhtana an account, like
      humaonion, which bore a woman s name. He started a conversation with
       sana , but soon discovered that, like huma , he was a man. He said that he
      was a student in Islamabad and that his name was Sohaib. He spoke to him on
      Yahoo Chat most days until about January 2009. They also exchanged the
      emails set out above. Those from him which refer to women by name refer to
      real women by the names by which he knew them. He met Huma at a bus
      stop in Longsight in December 2008 and, a second time, walking down the
      street. She gave him the cold shoulder, hence the reference in the email of 3
      December 2008 to her being difficult to convince . She said that she worked
      in a cosmetics chop in Longsight, so he told Sohaib in the email of 15
      December 2008 that it was his friend s shop to make out that he knew her
      better than he did. He met the remaining three women on the internet. Nadia
      and he corresponded on MSN and they agreed to meet. He sent her a picture of
      himself. She told him that she had shown the picture to her parents who said
      they liked the look of him. Hence, the statement in the email of 3 December
      that her parents like me . He thought that she was very straightforward.
      Hence, the reference to her being crystal clear girl . He had arranged to meet
      her at a car park in Salford, at which he waited for two hours, but she did not
      show up. Gulnaz talked about money and expensive things in their instant
      messaging chats. Hence, the statement in the email of 15 December that she
      was fond of money . Fozia said that she would not marry until she was 30,
      which is why he told Sohaib that she was bull shit and lets you down
      sometime in the 15 December email. He was going to ask for her telephone
      number, to try to convince her to marry before she was 30. Hence the
      statement that he was going to figure out her contact number and talk to her .

12.   Naseer said that the Nadia referred to in the email of 3 April 2009 was not the
      Nadia to whom he had referred in the December emails. It was a reference to a
      real young woman, but not to her real name. The young woman was Miss Y.
      She gave evidence in the hearing. She was a patently truthful witness. She and
      Naseer did form a relationship. Save to the precise timing of the true events
      which she described at the end of the relationship, about which we are
      satisfied she is mistaken, we accept that her evidence is truthful and reliable.
      Her evidence, which did not differ materially from that of Naseer on the
      subject of the relationship was as follows. She was 17. She gained access to
      the website       a marriage website for Muslims. At the end of
      January or the beginning of February 2009, she met Naseer on that website.
      They exchanged email addresses and talked for about an hour. Thereafter,
      they would speak to each other every day for an hour or two. He said that he
      was looking for a wife. She did not want to get married straight away, but did
      want to get to know him better. She gave him her mobile telephone number.
      She persuaded him to set up a Vodafone family contract under which, for £5
      a month, they could conduct unlimited telephone conversations. They did so,
      daily, for hours on end. She also talked (on with a friend of

                                       Page 9

      Naseer s. He told Naseer, who called her to say that she had broken his trust
      and the relationship was over. Two days later, he relented and called her again.
      They decided to meet. They did so outside Lidl in Kingston Upon Thames.
      She found him shy and personable. She was happy that she had met the right
      man. He told her to tell her mother, which she did. Her mother was not happy,
      but agreed to meet him. He drove down to London with his cousin to meet her
      mother on 14 March 2009. Naseer spoke to her mother, who said that she
      would think about the marriage proposal. In the end, she agreed to it. While
      she was thinking about her decision, she and Naseer agreed that they should
      not talk to each other and did not do so. When her mother agreed, she tried to
      get in touch with Naseer, by telephone and by text message, unsuccessfully.
      Both of them said that he emailed her to tell her that the marriage was not
      going forward and that she was extremely angry about his decision. She gave
      the date of the email as near the end of March. She put the date about 5 days
      before her sister s birthday on 31 March. The reason which he gave was that
      they were two different families: her family was modern. His was not. They
      did not speak by telephone after he sent the email, but they did communicate
      by MSN or, as he put it, instant messaging. He said that the last
       conversation which they had was on 2 April 2009. She heard nothing further
      from him.

13.   He said that, by the morning of 3 April 2009, he had changed his mind and
      wanted to get back together with her. He thought that if he told her he had
      made a mistake, she would agree to his renewed proposal: her family had
      already agreed to it. There would have been a party at Miss Y s home in April,
      which he would have attended. Hence, the statement in the email of 3 April
      that both parties had agreed to conduct the nikah (Islamic wedding) after 15th
      and before 20th April and that many guests would attend the party. His
      explanation for the sentence I have confirmed the dates from them and they
      said you should be ready between these dates , is that those were the dates
      which he had had in mind for a long time and that Miss Y s family had told
      him to be ready between those dates.

14.   We reject Naseer s explanations for the terms of the emails, in particular the
      reference to four named women and the whole of his explanation for the email
      of 3 April, as utterly implausible. Even without the closed material, we would
      not have accepted it. That material satisfies us to the criminal standard that
      Naseer s account of the emails is a lie, deliberately told to conceal their true
      meaning. He has carefully woven an account of a real relationship with Miss
      Y into a false explanation of the emails, in particular of the 3 April email. He
      did not change his mind about marrying Miss Y on the morning of 3 April. We
      are sure that that email conveyed a sinister and alarming message to an Al
      Qaeda associate. What that message was, we discuss below.

15.   The Security Service assesses that the references to, and comments upon, the
      four named women in the December emails, are references to different
      ingredients of explosives, their properties and availability. For the reasons
      which are wholly set out in the closed judgment, we are satisfied, on balance
      of probabilities, that that assessment is right. We have reached that conclusion
      despite the complete absence of any evidence of the handling or preparation of

                                       Page 10

      explosives by Naseer and his alleged associates. It is a fact that, despite
      extensive searches of buildings associated with them, nothing has been found,
      apart from an irrelevant trace of RDX in one of the properties. Mr Bennathan
      QC submits that this sets it apart from all previous Islamist terrorist plots to
      cause explosions in the United Kingdom which succeeded or were disrupted
      before they could be carried out. With one caveat we have heard no evidence
      or submission about the unsuccessful plot to set off a car bomb outside a
      nightclub in the Haymarket we accept that submission. Possible answers to it
      were given by witness ZR in closed evidence. Although we cannot set out our
      reasoning in this open judgment, we can set out our conclusion: there are
      pointers to an imminent attack, apart from the language of the 3 April email
      and it is possible that one could have been carried out within the time frame
      indicated by it; but, in the end, we are unable to determine whether Naseer and
      his associates would, in fact, have been able to carry out an attack intended to
      cause mass-casualties between 15 and 20 April. We are, however, satisfied, at
      least on balance of probabilities, that, by the 3 April email, he declared to an
      Al Qaeda associate that that was his intention.

16.   For the reasons stated, we are satisfied that Naseer was an Al Qaeda operative
      who posed and still poses a serious threat to the national security of the United
      Kingdom and that, subject to the issue of safety on return, it is conducive to
      the public good that he should be deported.

17.   Determination of the threat, if any, posed to national security by the other four
      appellants depends upon whether or not they were knowing parties to Naseer s
      declared intention.

18.   Naseer, Rehman, Wahab and Faraz, but not Shoaib, knew each other before
      they came to the United Kingdom. Wahab and Faraz became close friends
      university in Islamabad. Both were good friends not best friends of
      Rehman. Naseer says that he met all three at the representative office of
      Liverpool John Moores University in Peshawar. Wahab, Faraz and
      Mohammed Ramzan, who lived at 51 Cedar Road, Liverpool from January
      2008 until their arrest on 8 April 2009, had intended to travel to Liverpool at
      the same time in the autumn of 2006. Wahab and Faraz did so, within a few
      days of each other, but Ramzan did not, due to visa difficulties. Naseer,
      Rehman, Wahab and Faraz all claimed to have attended, at some time, the
      Manchester College of Professional Studies. Wahab and Faraz may have
      undertaken genuine courses there, because they subsequently undertook the
      same course at Liverpool John Moores University diligently and with success;
      but we doubt that Naseer did so and are confident that Rehman did not. He
      claimed to have studied for a Diploma in English, but required a Pushtu
      interpreter to give evidence. Shoaib became a friend of Wahab when playing
      cricket together and, through him, got to know Faraz and Ramzan. He was a
      diligent student of Accountancy at Kaplan (latterly, in Liverpool), with an
      attendance record of 98% in 2008 and 100% in 2009. He says that he met
      Naseer on no more than four occasions. There is no evidence to contradict that
      claim. There is no evidence that he knew or had ever met Rehman.

19.   Before Rehman flew to Pakistan on 16 November 2008, he had featured in a
      large number of photographs stored on, and retrieved from, a pen drive

                                       Page 11

      recovered from him on his arrest. Many of them are not the sort of
      photographs which would have been taken to show friends or relatives. For
      example, there are several photographs of the Arndale Centre and its exits
      featuring Rehman and another man, taken on at least two different days. The
      Security Service considers that they may constitute hostile reconnaissance. For
      reasons set out in the closed judgment, we think it is more likely than not that
      they do. We do not accept Rehman s explanation that they were tourist
      photographs. When he was cross-examined about them by Mr Tam QC, he
      prevaricated and claimed not to understand the purpose of the questions:
       What do you want to do by asking a question like that my mind has not
      been able to grasp your question .

20.   The photographs were taken before Rehman left for Pakistan on 16 November
      (some of them show trees in leaf and people in shirt sleeves). Although his
      visit to Pakistan overlapped Naseer s visit by no more than four days, he met
      Naseer in Peshawar twice he says, once at a restaurant and once to give him
      money which he had brought over with him from the United Kingdom. The
      last explanation was remarkable: he said that after the first meeting, he had left
      Peshawar and so had to return to give Naseer money which he could easily
      have given to him before he left. We are satisfied that we have not been told
      the truth about these meetings by Rehman.

21.   On 30 November 2008, 10 days after his return from Pakistan and on the same
      day as the sana_pakhtana account was created, Naseer visited 51 Cedar Grove,
      Liverpool. It is now accepted that both Wahab and Faraz were there when he
      did so. Faraz originally claimed that he may have been working on his
      computer in the Liverpool John Moores University library and, in the course
      of his cross-examination, challenged Mr Tam to demonstrate that that was not
      so. He did, by undisputed evidence from the university that Faraz did not visit
      the library on 30 November. The record of computer use at 51 Cedar Grove on
      30 November shows that Faraz made extensive and continuous use of his
      computer for ordinary work purposes until shortly after 22.02. The same
      record shows that Naseer s was accessed on
      Wahab s computer at 22.23. It is not disputed that 10 minutes later, Naseer
      accessed the first sana_pakhtana email on the same computer. In his email of 3
      December to sana_pakhtana, Naseer stated I went to see my mates in other
      city and came back last week . We are satisfied, at least on balance of
      probabilities, that that was a reference to his visit to 51 Cedar Grove on 30
      November (a Sunday). It follows that the mates in other city at least
      included Wahab and Faraz. Given that the message was the first of a series
      about an intended attack, we are satisfied that this part of the message was not
      inconsequential social discourse, but an indication, by Naseer, that he had seen
      people whom he intended should play a part in his plan.

22.   The next meeting on which the Security Service relies is the party held at 51
      Cedar Grove on 23 March 2009. We accept that there was a party, attended by
      a number of people, some of whom were nothing to do with any plot.
      Attendance at the party is not, as such, an indicator of participation. We do not
      regard the fact that Shoaib took time off work to attend it as significant, nor
      the fact that this was the second occasion upon which he had met Naseer (the

                                        Page 12

      first was during Ramadan in 2008). The meeting was of significance for
      Naseer, Wahab and Faraz, for the reasons explained in the closed judgment.
      We are satisfied that it was not just a coincidence that it took place the day
      before Rehman returned from Pakistan. One superficially unimportant part of
      Faraz s evidence did not ring true: he claimed that Naseer s impending
      marriage was discussed at the party and that, after most of the guests had left,
      he said that he wanted to get married to the girl, was in love, but was waiting
      for her mother s decision. For reasons set out in the closed judgment, we
      believe this part of his evidence to be untrue. We prefer Shoaib s evidence that
      either nothing was said about Naseer s marriage or he could not remember
      anything being said about it.

23.   For the reasons set out in the closed judgment, we regard attendance at the
      meeting on 1 April as of great significance. Those who attended were Naseer,
      Rehman, Wahab, Faraz and Ramzan. Wahab, Faraz and Ramzan drove over to
      Manchester to meet Naseer and Rehman. Their purpose was not, as they
      claimed, to welcome Rehman back from Pakistan, to commiserate with him
      about the death of his father. In paragraph 11 of his detailed witness statement,
      dated 30 October 2009, Rehman gave the following account of the reason for
      his return to Pakistan and what happened there:

              In November 2008 I returned to Pakistan as both my parents
             were ill. My father sadly passed away and so I stayed for a
             while to help with the funeral arrangements and to console my

      In an earlier statement made for the purpose of a bail hearing, and in his oral
      evidence, he said that his father had died in April 2008. When asked to explain
      the difference, he said:

              I am only human. Humans do make mistakes. I have made a
             mistake about the dates .

      Mr Malik sought to deflect the blame for the error to his firm, by attributing
      the words in paragraph 11 to a drafting error; but privilege has not been
      waived on any material to explain it and it does not explain Rehman s own
      answers about how the error came to be made. Wahab said in evidence that he
      thought that Rehman s father had died in September 2008. Faraz said that
      Wahab had told him that Rehman had returned from Pakistan and said
      something about his family being upset because his father had died. None of
      this makes sense. We are satisfied, at least on balance of probabilities, that this
      bungled attempt at explaining the reason for the meeting is an attempt to cover
      up its true purpose. That purpose was connected with the 3 April email. It is
      not a coincidence that Naseer s mates in other city and the man whose
      image appeared in many of the suspect photographs who had returned from
      Pakistan a few days before, met together less than two days before an email
      announcing an intention to carry out a mass-casualty attack was sent to an Al

                                        Page 13

      Qaeda associate. It is also a fact of some significance that Shoaib did not
      attend the meeting.

24.   For the reasons explained in the closed judgment, we do regard Naseer s trip
      to Liverpool on 4 April, to see the occupants of 51 Cedar Grove as significant.
      We accept that Faraz was not there throughout the whole of 4 and 5 April and
      did refuse to give Naseer the password to his computer. We accept that, at
      some time during the weekend, he visited Fatou Fatty and (with others) Layak,
      in hospital. We readily accept that the whole weekend was not devoted to
      attack planning. All that can safely be inferred is that there was time for
      Naseer s mates in other city to discuss it during his visit, which lasted until
      the morning of 6 April. The Security Service places significance on Shoaib s
      arrival, with Wahab and Ramzan, on 4 April. There is nothing to show that
      this was not simply a coincidence: he had undoubtedly been playing cricket
      with Wahab that afternoon and returned with him with a view to spending the
      evening together socialising.

25.   The Security Service also place significance on an apparently pointless drive
      lasting just over 2 hours around the Wirral peninsula in the late afternoon and
      early evening of 5 April. The drive took place in Shoaib s car, with him
      driving. Naseer, Wahab and Faraz were passengers. The occupants of the car
      disagree about whether or not it stopped during the drive, to permit some or all
      of them to walk on Hoylake Beach. We accept the assessment of the Security
      Service that the drive provided an opportunity to talk about attack planning.
      We make no finding about whether or not such discussion occurred. If we
      were to be satisfied that it had, it would not necessarily have implicated
      Shoaib, who does not speak Pushtu. A short discussion in that language could
      have occurred, without arousing suspicion or concern on his part.

26.   For the reasons set out above, and in the closed judgment, we are satisfied, on
      balance of probabilities, that Wahab was a committed Islamist extremist and
      that he and Rehman were knowing participants in Naseer s plans. Subject to
      Mr Malik s submission that a direction should be given to facilitate entry
      clearance for them, we are satisfied that it would not be conducive to the
      public good to permit them to re-enter, for reasons of national security.

27.   Faraz s case is, in principle, indistinguishable from Wahab s, for the reasons
      set out above and in the closed judgment. He and his father have, however,
      given evidence which has caused us to examine and re-examine that
      conclusion with care. His father was a forceful and truthful witness, save,
      perhaps, about the financial affairs of his family (from which we draw no
      inference adverse to him or to his son). As a government servant and
      postmaster in Bannu, he is far more likely to be a target, than a supporter, of
      the Taliban. He expresses forthright, and we have no doubt, truthful, views
      about extremism: he denounces it. He has provided for the education of his
      children, including daughters, to a high level. We have no doubt that he is not
      a supporter of Islamist extremism in any of its guises. He clearly, and strongly,
      believes in his son s innocence of the allegations made against him. In his
      witness statement, and in his descriptions of his early life in Pakistan, Faraz
      gives a convincing account of aligning himself with his father s views. If the
      conclusion which we have reached that he was, on balance of probabilities, a

                                       Page 14

      knowing party to Naseer s plans is right, he must have undergone a radical
      change of view between leaving home and arriving in the United Kingdom.
      For reasons which are largely set out in the closed judgment, we are satisfied
      that he must have done, so that by the time he arrived in the United Kingdom
      he shared the outlook of his close friend Wahab. By coming to the United
      Kingdom to share a house with him and by participating in the events which
      led to the sending of the 3 April email, he can safely be taken to have been
      willing to participate, with Wahab, in Naseer s plans.

28.   Shoaib is in a different position. He is from a settled area of Pakistan, not the
      troubled North West. He did not know any of the other four appellants before
      he arrived in the United Kingdom in 2005. He does not speak their first
      language. He did not attend or claim to have attended the Manchester College
      of Professional Studies: he was a genuine student of Accountancy at a
      reputable college. Nothing in the manner in which he gave his evidence
      caused us to doubt that he was telling the truth: he answered questions in a
      calm and straight forward way and did not (like Faraz) bluster or (like Wahab
      and Rehman) prevaricate. There is nothing necessarily suspect about the first
      three occasions on which he met Naseer. He volunteered the first (in Ramadan
      2008 we do not regard it as suspect that he put his first meeting with a man
      who was no more than an acquaintance somewhat later when interviewed by
      the police). His attendance at the party on 23 March gives rise to no greater
      suspicion than that of other individuals who attended and are not now the
      object of suspicion. His arrival at 51 Cedar Grove on 4 April 2009 is explained
      by his returning from the cricket match in which both he and Wahab played.
      Only the drive to the Wirral on 5 April gives rise to real grounds for suspicion
         which is capable of being dispelled by the difference in first language
      between him and the other three. We accept that the police had reasonable
      grounds to arrest him on 8 April and that the Security Service reasonably
      suspected that he was a knowing party to Naseer s plans. We are, however,
      satisfied on balance of probabilities, on the basis of the open and closed
      material, that Shoaib was not a knowing party to his plans and that the grounds
      for suspicion that he was have largely been dispelled and do not now reach the
      threshold of reasonable suspicion. Even if we were to adopt a less stringent
      test in relation to proof of past events than the balance of probabilities, we
      would not have determined that it is conducive to the public good for reasons
      of national security that he should be excluded from the United Kingdom. We
      accordingly allow his appeal. It would not be appropriate for us to give
      directions under section 87 Nationality, Immigration and Asylum Act 2002. It
      is for the Secretary of State to determine what should be done in the light of
      our judgment.

Additional Ground for excluding Rehman

29.    When Rehman submitted his application for leave to remain under the Tier 1
      (Post Study Work) scheme, he submitted a postgraduate Diploma in Business
      Management at Cambridge College of Learning to UKBA. He also told an
      Immigration Officer that he had undertaken the diploma course between 17
      September 2007 and 25 August 2008. Both the document and the
      representation were false, as he admitted in evidence (though not in his

                                       Page 15

      witness statement, which contains the lie that he completed the diploma). He
      said in evidence that he bought the diploma from a man called Bilal at the
      Manchester College of Professional Studies, for £2000. He admitted that he
      used it to gain a two year extension of his visa. He admitted that he did not
      study Business Management. It has now been authoritatively determined that
      Cambridge College of Learning never offered a Diploma in Business
      Management: NA and Others (Cambridge College of Learning) (Pakistan)
      (2009) UKAIT 00031. The Immigration Officer who cancelled his leave to
remain on his return to the United Kingdom on 24 April 2009 was, accordingly, required to do so under paragraph 321(A)(2) of the Immigration Rules. Subject to Mr Malik s argument, referred to above, there is no basis upon which we could properly interfere with that decision. Safety on return 30. Subject to Mr Malik s point, this issue only arises in the cases of Naseer and Faraz. As in other cases where this issue arises, the issue gives rise to two basic questions: does what is known about the conduct of state agencies in the country to which it is proposed to deport the appellants give rise to substantial grounds for believing that there would be a real risk of ill-treatment sufficient to infringe their rights under Article 3 if it occurred in a Convention country at the hands of those agencies?; if so, are there arrangements, assurances or particular circumstances which provide a sufficient guarantee that the individual appellant would be protected against the risk of such treatment? (This is a slightly lengthier formulation of the test applied in Saadi v Italy (2009) 49 EHRR 30 paragraphs 146 and 148). 31. In the light of two answers, given in the course of his oral evidence, by Mr Layden, with his customary forthrightness, the first question can be dealt with shortly. It is common ground that Naseer would be at risk of being detained and questioned by the Inter-Services Intelligence Agency (ISI) at some stage after his deportation. It is not unlikely that Faraz would be as well, particularly if Naseer were not to be deported. Mr Layden accepted two propositions, put to him, respectively, by SIAC & Mr Bennathan: An individual suspected of terrorism by the ISI would be at a high risk of torture or inhuman or degrading treatment but for factors particular to this case and ISI is in the category of intelligence and security agencies who do not share our standards . (The answers were given in a private session, from which members of the public and the appellants were excluded, but can be repeated here without infringement of rule 4 of our procedure rules). Page 16 32. If justification for those answers were required, it is provided in the report and evidence of Mr Ali Dayan Hasan. We found him to be an impressive and knowledgeable witness a view shared by Mr Layden. His sources are not identical to those available to the British Government, but they are extensive, and they do include first hand reports from participants, on both sides, in interrogations of terrorist suspects by the ISI, frequently given on condition of anonymity. Save for the controversial question about the alleged complicity of British intelligence officers in alleged ill-treatment of detainees, upon which it is unnecessary for us to express any view, we accept the thrust of Mr Hasan s evidence. In summary, it is as follows. Despite the restoration of a democratically elected Parliament and government, after eight years of military rule, Pakistan remains a state dominated by its military and intelligence agencies. There is a long and well-documented history of disappearances, illegal detention and of the torture and ill-treatment of those detained, usually to produce information, a confession or compliance. Al Qaeda and the Taliban are now in active conflict with the Pakistani state. In 2009, there were 90 suicide bombs and 3000 killed. Anyone, such as Naseer, suspected of belonging to either would be at risk at the hands of the ISI. Legal controls are inadequate. Individuals suspected of terrorism can be held in preventative detention for up to a year subject, notionally, to three-monthly review by a judicial board. A recent presidential ordinance of October 2009 permits those suspected of terrorism to be detained for up to 90 days without judicial oversight or the right of access to a court. Pakistan has signed, but not ratified the United Nations Convention against torture. To date, the Supreme Court, which has displayed a genuine interest in those who have been made to disappear, has not held a single military official accountable for abuses. 33. Nothing in the large volume of published material with which we have been supplied about conditions in Pakistan contradicts the picture painted by Mr Hassan. On the contrary, it provides substantial support for it. 34. The Secretary of State seeks to avoid the conclusion which would otherwise inevitably be drawn from this material that there are substantial grounds for believing that Naseer and Faraz would be at real risk of prohibited ill- treatment if they were to be returned to Pakistan by relying on circumstances particular to those arrested on 8 April 2009 and on circumstances which can only be described in the closed judgment. There are three open circumstances: the public attention which the case of those arrested has attracted in Pakistan; what happened to the eight (of the ten arrested) who returned to Pakistan between 10 June and 12 October 2009; and the role of the judiciary. As to the first two, it is undoubtedly true that the eight who returned did so in the public spotlight and have come to no harm. On the whole, opinions expressed in the media have been favourable to them, including a reported statement by the Pakistani High Commissioner in London that the alleged plot was a hoax . It is also true that none of the eight have come to any harm. Mr Layden believed, on the basis of what representatives of the British High Commission in Islamabad observed, that most had not been detained or spoken to by members of the Federal Investigation Agency at the airport; but it is now accepted that the three appellants escorted back by Mr Malik were detained for a short period after representatives of the High Commission had left and then released Page 17 on bail. Mr Hasan s opinion is that, although publicity can provide a measure of protection for those suspected of terrorism, it is no guarantee of their safety. We accept his view. The published record of the ISI suggests that, if they thought it necessary, they could and would secure the detention of the appellants away from the public eye. (The FIA would detain the individual and hand him over to the ISI for interrogation). Mr Layden s third open circumstance the role of the judiciary has, as he puts it, implications for the Pakistani security and intelligence apparatus ; but, for the reasons explained by Mr Hasan, does not provide an effective safeguard against ill- treatment or worse. 35. In the end, the circumstances upon which Mr Layden relies to support his firmly stated belief that there is no real risk that any appellant would be subjected to prohibited ill-treatment by the ISI are circumstances which can only be considered in closed session and set out in the closed judgment. No open assurances were given by the Pakistani authorities. With our approval Mr Bennathan QC made submissions about the approach which we should in principle, adopt to confidential assurances, if given. 36. The issue has arisen before. On 12 July 2006, in an interlocutory judgment in the cases of Y and Othman, a panel of SIAC, presided over by its then President Ouseley J, ruled that closed evidence was admissible to support an open assurance given by a government to the United Kingdom, but, in paragraph 58, observed: Nonetheless, we wish to make one point clear, which emerged more clearly during the substantive appeals. It is our view that the SSHD cannot rely on any substantive assurance unless it is put into the open. It may be the case that encouraging or supportive comments, even if described as assurances by the Government s interlocutors, should remain in closed if for example they are steps en route to an agreement. But the key documents or conversations relied on to show that an Appellants return would not breach the UK s international obligations or put him at risk of a death sentence or death penalty have to be in the open evidence. SIAC could not put weight on assurances which the giver was not prepared to make public; they would otherwise be deniable, or open to later misunderstanding; the fact of a breach would not be known to the public and the pressure which that might yield would be reduced. They must be available to be tested and recorded. Those observations were approved by Lord Philips in RB (Algeria) v SSHD [2009] 2WLR 512 paragraph 102. It is true that Lord Philips s answer to the question, could SIAC rely on closed material when determining the safety on return issue?, although the same as that of the other members of the appellate committee, was reached by a different route. Mr Bennathan accepts that his observations are not part of the ratio decidendi of the case and are persuasive only. Mr Tam submits that, properly construed, SIAC s ruling did not prevent reliance on confidential assurances or, if it did, it should be departed from. His construction of the phrase substantive assurance is that it means, and means Page 18 only, a formal memorandum of understanding or government to government assurance. We do not agree. The fourth sentence of paragraph 58 of SIAC s judgment makes it clear what it had in mind: the key documents or conversations relied on to show that an appellants return would not breach the UK s international obligations . If the key documents or conversations are not formal government to government assurances, they none the less remain the key documents or conversations , because they are the only assurances upon which reliance can be placed. We also decline Mr Tam s invitation to depart from SIAC s statement of principle. The assessment of the value of assurances is not a matter of law. Nevertheless, SIAC has adopted four yardsticks by which it will ordinarily assess the reliability and value of assurances. They were set out in BB (RB in the appellate courts) and were not criticised indeed they appear to have been accepted by appellate courts. The first and fourth give rise to problems if the assurances are not made public: the terms of the assurances must be such that, if fulfilled, the individual will not be subject to prohibited ill-treatment; and fulfilment of the assurances must be capable of being verified. It is theoretically possible that a written private assurance could satisfy the first requirement, but unless it was written and unequivocal, it would be open to later misunderstanding and would, in any event, be publicly deniable. Verification of a confidential assurance would be problematic and could not provide the protection to an individual which public scrutiny, by the High Commission, by local media, by family and by organisations such as Human Rights Watch and Amnesty International, can provide. For these reasons, we agree with SIAC s observations in Y and Othman and would not be willing to accept confidential assurances as a sufficient safeguard against prohibited ill-treatment in a state in which otherwise there was a real risk that it would occur. 37. Without the circumstances which we have considered in the closed judgment we doubt that Mr Layden could reasonably have expressed himself in the confident terms which he did; and, in any event, despite our great respect for his views and judgement, we would not be prepared to find, on the basis of them, that there existed a sufficient safeguard against prohibited ill-treatment of any of the appellants. For that reason, we allow Naseer s appeal on the issue of safety on return. We can, at present, see no ground for distinguishing the case of Faraz and, therefore, on the same ground, allow his appeal. 38. If that view is wrong, as a matter of law, we have set out our findings on the circumstances described in the closed sessions in the closed judgment. 39. The reaction of the Pakistani authorities to this judgment may demonstrate, in the case of Faraz and, even, possibly, in the case of Naseer, that, assurances apart, there would be no real risk of prohibited ill-treatment in either case. If those who have returned to Pakistan, including Wahab and Rehman, are not detained or, if detained, are not subjected to prohibited ill-treatment or otherwise dealt with in an unlawful manner, that may be powerful evidence that the risk to Faraz and, possibly, Naseer, may be judged to have been reduced to a level below the threshold of real risk. 40. We unhesitatingly reject Mr Malik s submission that the appeals of Wahab and Rehman should be allowed, notwithstanding our findings on national Page 19 security, for reasons of principle and fact. Article 1 of the ECHR requires contracting states to secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention . The Grand Chamber of the Strasbourg Court authoritatively identified the scope of Article 1 in Bankovic v Belgium (2007) 44 EHRR SE5 in paragraphs 59 to 73 of its decision. The following principles are clearly stated: 59. As to the ordinary meaning of the relevant term in Article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a state is primarily territorial 61. The Court is of the view, therefore, that Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case . 62. The Court finds State practice in the application of the Convention since its ratification to be indicative of a lack of any apprehension on the part of the Contracting States of their extra-territorial responsibility in contexts similar to the present case [the exercise of military power in another state] 63. Finally, the Court finds clear confirmation of this essentially territorial notion of jurisdiction in the travaux préparatoires which demonstrate that the Expert Intergovernmental Committee replaced the words all persons residing within their territories with a reference to persons within their jurisdictions with a view to expanding the Convention s application to others who may not reside, in the legal sense, but who are, nevertheless, on the territory of the Contracting States 67. In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only in exceptional cases that the acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Article 1 of the Convention. 71. In sum, the caselaw of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by that Government . Page 20 The United Kingdom has no jurisdiction over Pakistani citizens physically present in Pakistan, such as Wahab and Rehman. It cannot secure to them the right not to be subjected to ill-treatment of a kind which, if it occurred within a Convention state, would breach that state s obligations under Article 3. These facts do not fall into the exceptional circumstances identified by the Court in paragraph 71 of Bankovic. 41. The reasons of fact for rejecting Mr Malik s proposition are as follows. Wahab and Rehman find themselves in their current predicament because of their own voluntary actions, beginning with their decision to come to the United Kingdom. While here, they participated in events which posed a serious and immediate threat to the national security of the United Kingdom. Despite that, they had the opportunity to appeal against the notice of intention to deport them from the United Kingdom. They could not have been removed while their appeal was pending: section 78 Nationality, Immigration and Asylum Act 2002. They chose to return to Pakistan and to appeal against the immigration decisions subsequently taken, as, of course, is their right. They chose to return in a blaze of publicity and to waive the anonymity which would otherwise have been afforded to them in these proceedings. They complain that they were assured that the notice of intention to deport them would be revoked and that no deportation order would be made if they returned to Pakistan. It was always inevitable that the notice of intention to deport would be withdrawn and no deportation order made when they returned to Pakistan: no-one can be deported who is not here. Further, our understanding of the discussions which preceded their departure is that it was made clear to them that, if they were to return, an immigration decision would then be made against which they would have a right of appeal. That was done. By exercising that right, they inevitably ran the risk that a finding adverse to them would be made on the issue of national security, as it has been. Neither principle nor the facts require SIAC to allow their appeal on Article 3 grounds and direct that their re-entry to the United Kingdom should be facilitated. 42. For the reasons given, the appeals of Wahab and Rehman are dismissed. Other matters 43. We accede to Miss McGahey s suggestion that, before this judgment is made public, we should hear submissions about what, if any, steps should be taken to deal with the consequences of our decision for Wahab and Rehman. 44. In the light of our findings, it is unnecessary for us to consider further the open advocates request for an order that some or all of the documents inadvertently disclosed to them should be made public. The purpose of further disclosure would not be to permit us to deal fairly with the appeals, but to satisfy public interest, legitimate or otherwise, in the matters contained in the documents. The ad hoc procedure which was eventually adopted with the consent of all sides (permitting the open advocates to make full use of the inadvertently disclosed documents, on condition that they were not disclosed to the appellants personally or to anyone else) has ensured that they could be fully deployed by the open advocates. Further, as our open judgment on the issue of Page 21 safety on return demonstrates, they are not determinative of this appeal. There is a confidential, but not closed, judgment in which, for the sake of completeness, we have briefly set out our findings on the principal issues canvassed in the private hearing. 45. For the avoidance of doubt, lest our decision to hold a private hearing should at some later stage be challenged, we are satisfied that we had the power to order it under rule 43(2) of our procedure rules. Page 22

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