BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Special Immigrations Appeals Commission


You are here: BAILII >> Databases >> Special Immigrations Appeals Commission >> DD & Anor v Secretary of State for the Home Department [2007] UKSIAC 42/2005 (27 April 2007)
URL: http://www.bailii.org/uk/cases/SIAC/2007/42_2005.html
Cite as: [2007] UKSIAC 42/2005

[New search] [Printable PDF version] [Help]


Appeal No: SC/42 and 50/2005
Date of Judgment: 27 April 2007

SPECIAL IMMIGRATION APPEALS COMMISSION

Before:

The Honourable Mr Justice Ouseley (Chairman)
Senior Immigration Judge Jordan
Mr J Mitchell


DD APPELLANT
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT RESPONDENT
And
AS APPELLANT
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT RESPONDENT


For: DD Mr E Fitzgerald QC, Mr R Husain, D Friedman instructed by TRP Solicitors
Special Advocates for DD Mr A Nicol QC and Ms J Farbey instructed by the Special Advocates Support Office
For: AS Mr E Fitzgerald QC, Mr D Friedman, Mr H Southey instructed by Birnberg Peirce Solicitors
Special Advocates for AS Mr N Garnham QC and Ms J Farbey instructed by the Special Advocates Support Office
For: SSHD Mr I Burnett QC, Mr T Eicke, Mr A O'Connor and Ms C Neenan instructed by the Treasury Solicitor

Hearing dates: 30th October – 10th November, 16th and 17th November 2006.

OPEN JUDGMENT

Introduction

The LIFG and Al Qa’eda

The National Security Case against DD

The National Security case against AS.

The Refugee Convention

The risks on return faced by the Appellants

The general human rights situation in Libya

Torture

Fair trial and detention

The Benghazi trial

Prison conditions

The riots in Abu Salim prison

The death penalty

The Libyan system of government

The United Kingdom’s troubled relations with Libya

The resolution of the historic difficulties

The genesis of the Memorandum of Understanding

The Memorandum of Understanding and other assurances

The Qadhafi Development Foundation as Implementation or Monitoring Body

Fair Trial Assurances

The Death Penalty

Other returnees

Reliance upon the assurances

Conclusions: Introduction

Conclusions: the general human rights picture

Conclusions: the system of Government

Conclusions: the rapprochement with the West

Conclusions: assessing the effectiveness of the package of assurances

Conclusions: the approach to assurances

Conclusions: the FCO evidence and deference

Conclusions: the QDF as monitoring body

Conclusions: the risk that Colonel Qadhafi would not adhere to the assurances

Conclusions : Fair Trial

Conclusions: the death penalty

Conclusions: Article 8

Disclosure

Decision

APPENDIX I

    Introduction

  1. The Appellants DD and AS are Libyan nationals. Their cases are entirely separate, but were heard together because of the common issues which arose in relation to the risks which they would face were they to be deported to Libya.
  2. DD was born in 1975 and left Libya in November 2000, on his evidence, travelling to Tunisia, Turkey for two years, Malaysia for two months and then to China in 2003. The Libyan authorities say that he left in the early 1990s, and has not returned since. The SSHD does not accept that DD has given a full account of his travels since leaving Libya. DD arrived in the UK from China on 27 January 2004 with his pregnant wife, a Moroccan national. He used a Spanish passport, to which he was not entitled, in the name of Abselam. He claimed asylum on arrival.
  3. The SSHD refused DD’s asylum claim on 8 March 2004. He did not believe DD’s claim to be a member of an anti-Qadhafi group and thought that he was an economic migrant who could safely be returned to Libya. An Adjudicator allowed his appeal on asylum and human rights grounds on 25 May 2005. The Adjudicator found it credible that he had engaged in anti-Qadhafi activities in Libya, had been persecuted there and was at further risk because of his activities abroad, particularly in the operation of an anti-Qadhafi website. He had not been granted ILR by the time of his arrest on 3 October 2005 with a view to deportation, and had remained throughout on temporary admission. He now has two young daughters both born in the UK.
  4. DD has been in immigration detention since his arrest, as a person liable to deportation. The SSHD served DD with notice of intention to deport on the grounds that his removal would be conducive to the public good in the interests of national security. He was alleged to be a senior member of the Libyan Islamic Fighting Group, involved in providing extensive support to a wide range of Islamist extremists loosely affiliated to Al Qa’eda networks, who had been engaged in terrorist activity for a substantial period of time, well placed to assist those who were planning terrorist attacks in the UK and overseas.
  5. DD appeals on the grounds that his removal would breach the UK’s obligations under the Refugee Convention and Articles 2, 3, 5, 6 and 8 of the ECHR; the decision was not in accordance with law and the SSHD’s discretion under the Immigration Rules ought to be exercised differently. He put the national security case in issue.
  6. AS was smuggled out of Libya into Egypt in 1997, according to the statement which he supplied for his asylum claim. He says that he then went to Saudi Arabia until June 2001, when he left for Syria in order to seek asylum in Europe. In February 2002, he was in Malta; he paid $4000 to be smuggled into the UK, where he was met by his brother on 28 or 29 February 2002, and was taken by him to the Home Office to claim asylum on 8 April 2002. He said that he could not claim asylum in those other countries because they would return him to Libya. The SSHD put forward a different version of some of his travels before he made his asylum claim in April 2002. He had spent time in Italy but left Italy for the Netherlands and then for the UK, arriving on a false Italian passport in March 2002. On 16 May 2002 he was arrested under immigration powers, since he could be removed to Italy under the Dublin Convention. His asylum claim in the UK was refused on 13 February 2003 as he had previously applied for asylum in Italy, and Italy had agreed to his return. He claimed asylum on the basis that he and his family had been persecuted and tortured by the Qadhafi regime because of their true Islamic views. His brother had been granted asylum on appeal in 2002, reflecting a view, then current but not for much longer, that absence for 6 months from Libya created a real risk of being seen as disloyal to Libya. He claimed that another brother had been tortured to death in Libya and that he too had been ill-treated there.
  7. AS was prosecuted in the UK for two offences to which he pleaded guilty in July 2002: using a forged Italian identity card and handling a stolen British passport in a woman’s name - which he claimed to have purchased in a mosque for his wife, who is currently in Pakistan. He received concurrent prison sentences of 1 and 2 months. After his sentence was completed, he was again placed in immigration detention.
  8. In December 2002, Italy made a formal extradition request for him in respect of serious terrorist offences. Although in January 2003, Italy had notified the UK that it would accept AS back under the Dublin Convention, that did not happen as the removal was then proceeding as an extradition case. A habeas corpus challenge to his extradition was dismissed by the Divisional Court in December 2004, and the House of Lords refused permission to appeal in June 2005.
  9. In 2oo4, the Italian Constitutional Court ruled that Italian pre-trial custody time limits applied to those in custody outside Italy whose extradition was being sought, unless they had been notified by the UK authorities of the completion of a pre-trial investigation into them in Italy. In April 2003, the Italian authorities had requested that such a notification be given to AS, urgently. Through oversight, no such notification was then given to AS by the UK authorities. It was only given in October 2005, immediately upon notification by the Italian authorities to the UK authorities of the Constitutional Court’s ruling.

  10. Italy then withdrew its extradition request in October 2005, and notified the UK that it would not accept AS back under the Dublin Convention - a stance the legality of which is not accepted by the UK, but which nonetheless inhibits his removal to Italy.
  11. On 14 December 2005, the SSHD served AS with notice of intention to deport; AS was said to be linked to Islamist terrorist groups. The SSHD did not allege that AS was an LIFG member, although the Libyan authorities do make that allegation. He was arrested and has been in immigration detention since then. AS appeals on the same general grounds as does DD, save that he did not expressly put the national security case in issue.
  12. AS has been tried in Italy in his absence, not that he wished to be present, for conspiracy to commit acts of terrorism, forging public documents and handling stolen goods. He was convicted in January 2007 of criminal association for the purposes of producing false documents but was acquitted of the terrorist conspiracy. There is no reasoned judgment yet. He was sentenced to 4 years 6 months imprisonment but would have no time to serve because of the period spent in custody on remand in connection with the extradition request and a 3 year reduction in his sentence as a result of a new law. The SSHD believes that the State Prosecutor will appeal the decision if grounds exist.
  13. In each instance the SSHD certified under s97 (1)(a) of the Nationality, Immigration and Asylum Act 2002 that his decision was taken in the interests of national security. Hence the appeal route lies to this Commission and not to the AIT.
  14. The LIFG and Al Qa’eda

  15. There was considerable debate about whether the LIFG had now become closely linked to Al Qa’eda. The SSHD contended that there were now close links between the LIFG and Al Qa’eda. If so, membership of the LIFG could the more readily be seen as demonstrating links between an individual and Al Qa’eda and a more direct threat to the UK’s national security. It is the contention of the Appellants, although denying any membership of the LIFG, that there is no link between Al Qa’eda and the LIFG, and that most of the LIFG members have directed their actions at the Qadhafi regime. Some were opposed to the activities of Al Qa’eda, although some LIFG members could have joined it.
  16. The LIFG is proscribed under Schedule 2 to the Terrorism Act 2000 by the Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2005 No 2892, against which there has been no appeal. The Appellants pointed out that this proscription only took place on 14 October 2005 after the arrests of the Appellants. (The United States had placed the LIFG on its list of designated terrorist organisations in 2004).
  17. The orientation of the LIFG towards Al Qa’eda was considered for the purposes of Part 4 ATCSA in the appeal of M in 2004. The SSHD accepted before that appeal began that he could not show at that time that the LIFG as a whole was affiliated or linked to Al Qa’eda. His case was that substantial parts of it were so linked. It was a consequence of the Attorney General’s concession about how the Act should be applied, in the light of the nature of the emergency underlying the derogation, that the focus was on the LIFG’s link to Al Qa’eda rather than on a more general global or anti-western jihadist outlook, although the two have obvious overlaps. The SSHD tried and failed to make out the case that M personally was one of those reasonably believed to be linked to Al Qa’eda. The SSHD confirmed that in the present appeals he was not trying to say that that decision had been wrong on the material available then. There was a large amount of new material in open and closed.
  18. The SSHD’s evidence was that the LIFG is 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 Qa’eda operatives. Its aim had been to overthrow the Qadhafi regime and replace it with an Islamic state. Colonel Qadhafi, who regards himself as a devout Muslim, was not just tyrannical but non-Islamic in their eyes. The LIFG carried out a number of terrorist attacks in Libya or claimed to have done so, including at least one assassination attempt on Colonel Qadhafi. There was a tough military and security response which led to many members being killed, imprisoned or fleeing abroad in the mid 1990s. The dispersal led to a broadening of its outlook, and an embracing of the pan-Islamic, global jihadist outlook of Al Qa’eda. So although it retained its anti-Qadhafi views, they were subsumed within a deeper worldwide Islamist agenda. There is other evidence that some had returned to Afghanistan where the Taleban offered refuge until they were forced out in November 2001 whence many went to Iran, Europe and Asia.
  19. Al Sadeq and Abu Mundhir, respectively the emir and spiritual leader of the LIFG, were more focused on Libya but not to the exclusion of the wider Islamist agenda. After their detention, the LIFG had become more closely aligned to Al Qa’eda. It had already been subscribing in large part to the Al Qa’eda outlook. It was possible however that some of the LIFG members were opposed to Al Qa’eda’s activities, but not that the LIFG was largely involved in supporting immigrants and in mere political opposition.
  20. The SSHD’s generic statements themselves do not contain very much information on the Al Qa’eda/LIFG links. There is some detail about individuals, and some evidence from which it could be inferred that LIFG members had taken action in countries other than Libya. But this presupposes that the individuals are LIFG members, which in DD’s case is disputed and in AS’ case not alleged by the SSHD, and that some of the foreign activity can be relied on as proof of action against countries other than Libya. There are a number of Libyans who have been convicted of involvement in the Casablanca bombings but Witness D, the Security Service witness, accepted specifically in respect of one of them, in a different context, that the conviction could not be regarded as evidence in view of the way in which the arrest, interrogation and trial had been carried out. That would apply to any of the Libyans convicted and so the fact of their convictions cannot show that there was a more global outlook or an Al Qa’eda connection. The Sanabel Relief Agency, which is closely connected to the LIFG, is on the UN 1267 list as Taleban or Al Qa’eda linked, as is the LIFG itself, and its funds are credibly said to have been used to fund terrorist activities overseas. Otherwise in open there is little more than the bare assertion that Al Qa’eda and the LIFG are closely linked.
  21. The SSHD’s views were not essentially based on what he had been told by the Libyans, although a small amount had come from the Libyan security services. No detainee reporting from Libya was relied on now for pragmatic reasons. That which had originally been included had been excluded as a result of the Special Advocates’ comments to the SSHD.
  22. Witness D was asked by Mr Friedman for the Appellants, about the views of Benotman, a former member of the Shura Council which directed the LIFG, who had been or at least had seen himself as a senior LIFG figure in the UK from 1995 until he left the LIFG in 2003. These views were set out in an interview in 2005 held in the UK, published by the Jamestown Foundation in its Terrorism Monitor 2006. Witness D agreed that a Council of up to 15 men ran the LIFG and that who was leader was a matter for debate often among themselves. Benotman denied that there was any significant link between the LIFG and Bin Laden; it was not sympathetic to Al Qa’eda; no LIFG member had ever been implicated in international terrorism; the focus had always been exclusively on Libya: overthrowing Colonel Qadhafi and replacing the regime with an Islamic state. There were Libyans who were linked to Al Qa’eda but they were not LIFG members. He and several other LIFG leaders had condemned the 11 September 2001 attacks from the operational and tactical point of view; these attacks were the “Achilles heel” of the whole jihadist tendency. The LIFG had been considerably degraded by 1998, and had stopped being a credible fighting force by then.
  23. Witness D did not accept that this was entirely honest: there were strong connections going back to Afghanistan between the LIFG and the Taleban, and between the Taleban and Bin Laden. There were connections between significant portions of the LIFG and Al Qa’eda in Afghanistan and elsewhere, although in 1992 the LIFG as a group would have been focused on Libya. Benotman’s criticism of 9/11 was not on moral grounds and he was speaking to a public paper. Leaders’ views about global jihad and involvement in terrorism outside Libya had varied; Benotman, Sadeq and Mundhir had been more focused on Libya. The SSHD’s research showed no support for the view that Sadeq had ever been allowed into the UK. Although some LIFG members would be opposed to Al Qa’eda, DD was not one of them.
  24. Mr Friedman also asked about Witness D’s views of an article in the Terrorism Monitor of 2005 by Alison Pargeter. This article said that the LIFG had been more or less eliminated in Libya by the end of the 1990s. According to figures released in the summer of 2005 by the Qadhafi Foundation, the regime was holding 182 members of the LIFG in prison. Some 150 members had been held incommunicado for many years. This figure may include jihadists more generally. They were eventually sentenced in a mass trial in 2002. Two were sentenced to death, others to life imprisonment. The sentences were upheld in December 2004 and are being served in Abu Salim prison. Some Libyans had been engaged in the Iraq insurgency, arrested, and returned to Libya. The arrest of Sadeq and Mundhir and their removal to Libya had been a great blow to those in exile. There were only dozens in the UK, and they had had only limited success, had abandoned the armed struggle, and were focusing their efforts on producing anti-regime propaganda and providing money and fake documents to help others settle in Europe. Some of this information about how insignificant the LIFG now was came from the wives of two of those arrested in October 2005. The names of those arrested had been among those on a list supplied by the Libyan authorities, for whom the proscribing of the LIFG and the arrests in the UK with a view to deportation, had been a major success in their fight against Islamic extremists. The Libyans had been keen to proclaim that the LIFG was connected to Al Qa’eda. When five members were arrested by the United Kingdom authorities in October 2005, according to Ms Pargeter, this looked "more like a symbolic defeat for the remnants of a fading organization.
  25. Witness D agreed that by the end of the 1990s, the LIFG was significantly diminished in its capabilities within Libya. The LIFG in the UK was probably helping with immigration, settlement of members in Europe and propaganda but that was not the whole truth. He had not come across an instance of false documentation or immigration papers being provided for ordinary immigration; he had seen documents provided for terrorist purposes. One might expect that the Libyans would provide a list of people whom they said were Islamist extremists. He did not accept that the Libyan authorities were particularly keen to promote the links between the two organisations and although the Libyans might take the view that the LIFG was Al Qa’eda linked, that was in fact what the position was in the SSHD’s view anyway.
  26. There was some debate about the purpose and relevance of an article by Moshe Terdman part of which dealt with the ideological roots of the LIFG. It was not the SSHD’s purpose to deduce from it that the LIFG had a particular ideology which showed that the LIFG or DD were Al Qa’eda linked, or shared a global jihadist outlook. Rather, the SSHD used it for what it said about the structure of the LIFG. Witness D said that his case was rather based on what the LIFG did, although ideology was not ignored entirely. He had some knowledge of the ideological differences between the various strands of extremist Islam, but he did not claim to be an expert on them.
  27. In reaching our conclusions on this topic, we have also taken account of the closed evidence. In general, it is our view that there are close links between Al Qa’eda and many senior LIFG members; the closest links were forged and exist outside the UK. Those who hold global jihadist views generally have the links to Al Qa’eda and still seek to oppose the Qadhafi regime by means which include violence. They co-operate with and support other groups in a broader anti-western agenda and in actions directed against what they all see as non-Islamic states notably in the Middle East and North Africa. There has been a clear shift in emphasis in recent years, caused in part by changes in leadership forced by arrests. Those with Al Qa’eda views are in the ascendancy and some of those of other views have left the LIFG or have become marginalised. The difficulties of operating within Libya, and the contacts among the Islamists of many nationalities dispersed throughout the west and elsewhere, have encouraged a more global outlook. Those of that outlook represent a clear danger to the national security of the UK.
  28. The Libyans have a clear interest in defeating the LIFG because of its opposition, and violent opposition, to the Qadhafi regime, and because of what the LIFG would replace it with if it could. But the Security Service assessment is not essentially derived from the Libyan authorities’ views. The Appellants’ suggestion, that a mismatch between the amount of material which might have been received from Libya and that used by the SSHD showed that material from Libya had been treated as unreliable or tainted, is of no significance.
  29. The SSHD also relied on membership of the LIFG as showing a risk to national security because of its anti-Qadhafi Islamist violence. There was a reciprocal interest between Libya and the UK in combating Islamist terrorism. Taking action against the LIFG and its members advanced the UK’s national security through fostering anti-terrorist co-operation with Libya, which is now a partner of importance in combating the Islamist terrorism which threatens both countries.
  30. The Appellants accepted that the Government was entitled to say that the national security of the UK was now threatened by the acts of Libyan nationals which harmed Libya. This was either because that could lead to action by Libya against the UK or its nationals, or more probably because it could harm other UK interests by making counter-terror co-operation, in particular, more difficult. SSHD v Rehman [2003] 1 AC 153 had held that the Commission should defer to the view of the executive as to what relationships and factors constituted national security interests.
  31. 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.
  32. The risk of violent action against Libya and its interests, supported by UK based Libyan Islamist extremists is legitimately to be taken as a further threat to the UK’s national security, because of the desire of the UK Government to retain the newly improved relations with Libya, and the advantages which co-operation in countering Islamist terror brings to the UK’s security. Advancing that co-operation and disrupting that threat to the Libyan regime assists the UK’s national security interest.
  33. However, submitted Mr Friedman, mere membership of the LIFG before proscription could not be sufficient to show a threat to the national security of the UK. There had also to be evidence of activities which themselves amounted to terrorism. Proscription did not of itself prove that such activities had been undertaken. The fact of membership did not advance matters because there were two groups within the LIFG: those who were active supporters of global jihad and a larger group who were providing no more than immigration assistance and political dissent from the safety of the west without violence. There had been no opportunities for individuals to modify their behaviour in the light of that proscription. It had to be shown that there were terrorist acts carried out on behalf of the LIFG and without the justification of self-defence.
  34. We accept that it is not possible to conclude from the evidence that the mere fact of LIFG membership shows that an individual is necessarily a global jihadist or Al Qa’eda supporter. The real focus of the analysis of that aspect of the national security risk is not therefore simply on whether the individual is an LIFG member, but is on what an individual LIFG member has done and may do in the future, taking account of what is known of his outlook and with whom he associates. By the same token, there are Libyan jihadists who are not members of the LIFG, and so the absence of membership does not disprove an Islamist agenda. Again the focus has to be on what the individual has done and may do.
  35. Witness D may not have been familiar with all that researchers have written on the LIFG, but the real point is the one which he made - the threat posed by an individual is to be judged by what his own outlook and actions show. The SSHD’s case in respect of DD was not a simple assertion that LIFG membership of itself showed DD to be of a global jihadist outlook and a supporter of violence in Libya and outside. The issue of LIFG/Al Qa’eda links is capable of being something of a distraction at that more general level. What is clear however is that LIFG membership alone does show that an individual is willing actively to support violent Islamist opposition to the Qadhafi regime, which is the further basis for the threat to national security.
  36. It is likely that the assessment of the risk posed by an individual will not readily be compartmentalised into categories of direct and indirect risk to national security; some activities may not readily be pinpointed on the evidence as belonging to one or other category; they may serve both a wider Islamist and an anti-Qadhafi purpose.
  37. How far acts done before the date of proscription of the LIFG can show future risk is a matter for judgment on the whole of the material in relation to each individual; the date of proscription of the LIFG does not constitute a cut off point before which actions should be ignored in the assessment of danger. The prospect that individuals might modify their behaviour in the UK in the light of the proscription is worthy of consideration.
  38. There was a certain amount of cross-examination about the past conduct of the Libyan regime; we shall deal with that primarily when considering safety on return to which it might be relevant. But it appeared also to be said that not all past action against the Qadhafi regime posed or evidenced a current threat to the national security of the UK, because when those activities were being carried out, Libya was run by a leader and henchmen who were themselves supporters of illegal violence, threatening the national security of the UK.
  39. There have plainly been events in the past between the UK and Libya which meant that relations were hostile. Quite how the question of any UK national security interest in preventing the overthrow by violence of the Qadhafi regime, and its replacement by an Islamist regime based on Shari’a law, would have been viewed in a deportation case at that time is irrelevant speculation. In this context, the questioning about the Shayler allegations that there might have been knowledge or involvement by the Security Service in a plot to kill Colonel Qadhafi is irrelevant; and from what we have seen, the allegations appear to be without sound foundation, and Shayler appears to be less than reliable. The SSHD position was summarised in a short statement by Mr Winton from the Treasury Solicitor’s Office.
  40. But a related question might arise if the national security evidence included actions at a time when relations were hostile; the improvement began no later than 1999 when diplomatic relations were restored, and gathered pace very markedly in 2004 and 2005. We have considered that in our conclusions on each Appellant.
  41. The National Security Case against DD

  42. The SSHD’s case was that DD was a senior member of the LIFG and was probably responsible for the dissemination of information and propaganda for the group. He had provided extensive support to a range of Islamist extremists belonging to loosely affiliated Al Qa’eda networks, and had been involved in the procurement and possibly in the production of false documents. He represented a threat to the UK through his activities against the UK, and the West more generally.
  43. The SSHD’s open case that DD is a senior member of the LIFG draws on a combination of factors: that DD is an Islamist extremist and that he has or had a variety of connections, some quite close, to LIFG members. The evidence that he is an extremist is also drawn from those connections. The evidence has to be looked at in the round to see what strength as a whole it bears.
  44. DD relied on three statements before the hearing began: his statement for his asylum appeal and the supporting documents, a statement for his bail application which expressly did not seek to deal with the detail of the case against him, and what was called his second statement. He later produced a third statement dealing with the contents of a family website following expressions of disquiet by the Commission as to how the matter had been left. DD did not give evidence orally: his counsel, Mr Friedman, explained that DD had given his evidence in writing dealing with the main points in the open case; there was a significant amount of material in closed; cross-examination could create problems for DD were he to be returned because he would be detained in Libya and material from this appeal could be used against him by the Libyans; he had also been arrested here on suspicion of committing terrorist offences and had been questioned about matters which did not feature in the open evidence. One such matter had been the statement of Malek Andoulsi who might have been tortured in Morocco in connection with the Casablanca bombings investigation and trial.
  45. DD’s statements disputed that he was a member of the LIFG and that it had a global jihadist outlook or was linked to Al Qa’eda. He was sympathetic to the aims of the LIFG, as he was to a number of other Muslims and secular groups committed to the overthrow of the Qadhafi regime. He had “not advocated violence save in the very specific circumstances of people defending themselves from the violence of the Colonel Qadhafi regime in Libya itself.” He was against the killing of any civilians. He had never concealed the fact that he produced websites critical of the Qadhafi regime. He had been a member of a small cell of Al Tajjamu Al Islami, the Islamic Gathering, in Libya, where he had used his artistic skill from a young age to ridicule and attack the regime through leaflets and writing on walls. He explained how he knew and what dealings he had had with certain individuals identified as Islamist extremists in the open evidence. He did not deal with all the allegations in open against him.
  46. The SSHD put considerable weight on a website which was found on a DVD when DD’s address was searched after his arrest on 3 October 2005. The discovery of and allegations about this website were not made known to DD until about 27 October 2006, although DD would have known that the police had his computer. The website was constructed in November 2003 and it is accepted by DD that it is his.
  47. The website describes itself as the family website. DD’s wife was pregnant in China where they then were, and DD said that it is intended to serve as the website for pictures of the child (or son). The translations of its content differ. China is described as their second homeland, and a place where they had wonderful days. There is a considerable amount of religious material. It asks in the Introduction that DD be granted the highest rank of “shahadah for Your sake and to resurrect me and my family in the company of the Prophets, of the Most pious, of the Shuhadaa, and of the righteous, whose company is the best of any other company.” Later on, it says : “O Allah, You have guided us to Islam (to Submission), without us asking You, so please Our Lord, grant us Shahadah, and this time we are asking You and beseeching you.” The introduction continues, asking for children who will be resilient, “make jihad for your sake and who will emigrate for your sake.”
  48. We have used here the translation which was provided on behalf of DD after the Commission raised questions about the absence of any response by him to the allegations about this website and the significance which the SSHD was attaching to it. It highlights the Arabic words the translation or significance of which is important. The translation provided with the amended SSHD statement translates the Arabic words, which we have used above, as “martyrs” and “martyrdom”, or, for “jihad” “virtuous warriors”. The amended SSHD statement made it clear that he was attaching significance to the words of martyrdom in particular.
  49. There were four songs on the website which the SSHD had not been able to access, one of which is entitled “I am a terrorist”. DD’s translation did not refer to this nor did DD make any comment about the song or how it could be accessed. Another song refers in its title to rifles and other guns, and a third looks to the day “when every nation shall come down on its knees.”
  50. There was a set of pictures called “Wonderful” or “Cool” “Flashes”, depending on the translation. The four pictures have background songs praising “jihad” and “martyrs”. The first refers to the pain of Iraq; the second shows a black clad sword wielding figure and the writing refers to Muslim tragedies and to the second caliph, Omar, a brave fighter and leader, regaining the nation’s glory; the third shows George Bush, Tony Blair, Ariel Sharon and a map of Iraq; the fourth shows Palestinian children and the writing refers to them as “Islamic cubs of steadfastness and resistance in the face of Jewish pigs”. (DD’s translator did not refer to this set other than to note them in the website menu).
  51. There were then some pictures with a commentary: a baby who had been shot in Palestine, a tragedy known to all Muslims; the Al Aqsa mosque in Jerusalem, with a poem called “The wolves of al-Quds”, to the effect that the army of Mohammed will remove the recent usurpers from the soil of Palestine, (the SSHD translation notes references to the usurpers’ control by force and rape); and a picture of the Kaabah in Mecca, and prayers to Allah to bind the nation’s wounds. DD made no reference to any of these pictures. There were favourite links to some Islamic websites.
  52. The website background songs, according to the SSHD translation, are Jihadi songs, inciting and praising jihad and martyrdom: Muslims are strangers in their own lands; Kandahar is the resting place for the martyrs who are in paradise, so do not cry for them; “My dear mother do not cry because I am away because we will meet. The best companions are Mujaheedins.” There is no translation of this on behalf of DD and he makes no reference to it.
  53. At the end of Mr Friedman’s cross-examination of Witness D, he dealt with this website briefly by asking whether this was all that the SSHD had relating to DD as a senior LIFG member with a role in propaganda. Witness D replied that there was no more website activity in open which the SSHD was relying on. This was because, said Witness D, DD would have been aware that he was of potential interest to the UK authorities and would have been quite careful about what he kept on his computer. Witness D had been surprised to find this DVD, especially from someone who claimed to be focused on Libya. Mr Friedman suggested that that sort of material could be found on many computers without leading to deportation. No answer is recorded although Mr Friedman may have thought that there was agreement. We were concerned that Mr Friedman might not have had time to take instructions on what might be more important to us than it appeared to him. He confirmed that he had asked his questions about the website, but we gave him the opportunity to reconsider. That led to the further statement from DD and the possibly different translation.
  54. DD says that it is a family website enabling his family to keep in touch, it was not for public viewing, was never finished and was never available on line. It was not created to convey political thoughts for he had other websites which he used to promote his political ideas. The quotations in the Introduction were largely from the Koran with one supplication from the Prophet Mohammed, and a supplication from DD at the end. We accept that. DD explained that “Shahadah” was the highest rank of religious conviction; “jihad” in the context of his child referred to children who would strive, be energetic and stand up for what they believed in. The translation submitted on his behalf pointed out that “Shahadah” meant declaring one’s belief in the one God and in his Prophet; it also meant bearing witness by striving for perfection or offering one’s life for Allah, and in that sense it could refer to martyrdom; “Shuhadaa” means “witness” and is a title given to a Muslim after death if he died fulfilling a religious command or during a religious war. “Jihad” meant striving to make Islam superior and to achieve a high moral standard for oneself and it could also mean holy fighting for Allah. We accept that those differences of meaning exist.
  55. The question of what was meant and what it signifies has to be gathered not from translation alone but from the content of the website, what DD says about its meaning and other material which bears on it.
  56. As to anti-Colonel Qadhafi material more generally, it is beyond dispute that DD has developed literature and websites attacking Qadhafi, because he himself has often said from his earliest statements that that is what he does. He says that they have been censored in Libya and that they have got his family there into difficulties with the police, leading to questioning and arrests. He has identified some websites and produced a few examples of what he has done, to none of which could any national security objection be taken.
  57. The search of the hard drive of DD’s computer also revealed what the SSHD said was a link to the LIFG and a role in providing support to Islamist extremists, other than in relation to propaganda. A passport photograph of a beardless M (SIAC reference letter), an admitted LIFG member and of some seniority, was found on the hard drive. Another passport photograph was discovered on the scanner at the same address, also assessed to be of M; there was some support, said an expert, for the view that one was a digitally enhanced version of the other. This strongly supported the SSHD view that DD was involved in altering identity documents, and doing so for an LIFG member. DD did not contest any part of that evidence; he may have felt inhibited by the risk of self-incrimination. But we accept it. No doubt, by itself, it could be said to be as consistent with his sympathy for the LIFG as with his membership of it.
  58. There was further evidence that DD had been engaged in the production of false documents, in addition to the fact that he had obtained and used false Spanish documents for his journey to the UK from China, and had travelled as a Moroccan to Turkey, Malaysia and China. At DD’s address were also discovered two other passport photographs, a scanner, laminator, cutting knife, board and ruler, and a Sudan identity card. Neither his possession of these items nor the inference which the SSHD drew from them was challenged in any evidence or questions on behalf of DD. We accept the inference. DD had a number of aliases, which he did not dispute or explain: Mullah Shakir Ullah Ghaznawi and Imad Al Libi. Ghazni, from which “Ghaznawi” comes, is in Afghanistan. He arrived as Hossein Abselam, and he has also used the name Abdullah Bataebeid.
  59. DD did take issue with one document which the SSHD relied on as showing his access to and use of false documentation. For his asylum appeal, DD produced a summons, described as a witness summons, which he said had been served on his father in Libya. He could not say whether or not it was authentic in the light of the challenge to it but he believed that it had been served on his father. The SSHD considered that DD knew that it was false. It is dated 1 September 2001 and tells DD’s father that because his son has fled abroad and is continuing his anti –Revolutionary activities to the great detriment of its security and achievements, the father has to attend the Head Quarters of the Internal Security Agency with all the possessions of the son which could be useful to him abroad, has to stop communicating with him, and instead must co-operate with the Agency against traitors. It also says that DD was convicted of an offence in August 2001 contrary to a provision of the Penal Code for which DD says the minimum sentence is life imprisonment and the death penalty is a possibility. This is of course also relevant to the risks which DD would face on return. The father died in Jordan where he was receiving medical treatment on 2 March 2007.
  60. The British Embassy in Tripoli confirmed that there were a number of aspects of this document including its date, and the numerals used which showed that it was not authentic. The Libyan authorities disclosed the fuller details in a Note Verbale of 1 November 2006. We accept that it is not authentic for those reasons. We see no reason to accept that DD was supplied it by well-wishers who wanted to assist his asylum claim, but did not want him to believe that the document was false and so were prepared for him to be worried for himself and his father, but did not expect him to contact his father, who would have told him the truth. We believe that DD knew that it was false and was prepared to use it to further what, on the SSHD’s current case, was a genuine asylum claim, even if not all of its detail was accurate, but which at that time the SSHD had disbelieved.
  61. The SSHD pointed to DD’s contacts with three individuals, apart from M, as showing significant links with Islamic extremists. The first is Al Sadeq, whom DD admits to knowing, but as Ali Mohamed. Al Sadeq was the worldwide emir or leader of the LIFG until his detention in March 2004, but DD denies that he knew at that time that Al Sadeq held that position. It is not disputed that he did hold it. DD’s evidence is that Al Sadeq was an opponent of the Qadhafi regime and was wanted by it. DD must have known Al Sadeq before going to China because he says that when he arrived there Al Sadeq had already arranged accommodation for him and his wife. He does not say how they met, but it does not appear therefore to have been as Libyan exiles in China. Al Sadeq was a friend and they worked together on the website which DD used for his political activities. Their association was social and business and “to a certain degree political”, as DD put it, because there were many Libyan dissidents in the Far East at the time; but that political association was not within a political organisation. He discussed leaving China with Al Sadeq, who provided him with the Spanish passport in return for DD’s Moroccan one. Al Sadeq is now in detention in Libya, having been arrested in Thailand and removed in March 2004. Mr Friedman says that DD has not sought to conceal his relationship with Al Sadeq. The SSHD regards the relationship as having been close and as evidencing membership of the LIFG.
  62. The spiritual leader of the LIFG, Abu Mundhir, had also been in China at the same time; he too was arrested and removed to Libya from Hong Kong in March 2004.
  63. For all that DD speaks of the motivation for leaving China as being his wife’s botched abortion in July 2003, there were real problems for any Libyan living in China anyway. As DD says, if the Chinese authorities realised that he was Libyan and not Moroccan, he would have been removed to Libya by the Chinese. Obtaining documents for the baby would have been difficult. It is possible to entertain real doubt about his real motivation, because of the glowing way in which life in China was described in November 2003 when the website was set up, in marked contrast to the distressing medical picture painted in the statement made for the asylum appeal.
  64. DD says that he met his Moroccan wife through an Arabic Muslim website and they decided to get married, which they did by proxy over the telephone a few months later in May 2003; they first met in person in Malaysia shortly afterwards and then set off for China each on Moroccan papers. The brother of Mrs DD is Mustapha Maymouni; the sister of Mrs DD was married to Serhane Fakhet. The SSHD attributed considerable weight to these familial connections, and sees them as rather more than unhappy coincidences. Maymouni was sentenced, according to DD, to 18 years in prison in Morocco for his alleged part in the Casablanca bombings of May 2003 in which 45 people were killed. Fakhet blew himself up in a police raid following the 11 March 2004 train bombings in Madrid; Spanish authorities believe him to have been the leader of the group responsible. It was not the SSHD’s case that DD himself had links to either of those atrocities. DD did not accept that that was how Fakhet died or that Fakhet had any involvement in the Madrid bombings.
  65. There was a good deal of debate as to how much weight was being put by the SSHD on the fact or basis for the conviction of Maymouni in view of the evidence from Human Rights Watch that the Moroccans charged over 2000 people in connection with the bombings and ill-treated them; the trial had been unfair and the convictions of the 903 who were convicted were probably tainted by confessions and statements obtained by torture. In particular, evidence from Maleck Al Andulsi, (Malek Andoulsi), should be disregarded. According to a Moroccan newspaper website, this evidence linked the LIFG to the attacks and to the Moroccan Islamic Fighting Group, which actually carried out the attack; two UK based members of the LIFG had been convicted in their absence of involvement in the Casablanca bombings.
  66. Witness D said that he was reluctant to attach great significance to the fact of the conviction of the UK based individuals, or at least to the conviction of one of them; and we have taken it that the fact of conviction in respect of the Casablanca bombings is not to be held against any individual. He did not dispute that any evidence drawn from Al Andulsi fell to be disregarded, at least on pragmatic grounds in the absence of investigation. Detainee reporting, if any, from Morocco also could not be relied on, on the same basis. The purpose of the reference to the conviction of Maymouni was to draw to DD’s attention that the SSHD regarded Maymouni as a significant figure, with connections to DD and to the Casablanca bombings. He was using that conviction as a means of signalling a connection which he wished to pursue in closed; but he was not relying on the conviction as such or on material which came from Morocco.
  67. DD obviously did not deny knowing his brother in law: he now sent money to his wife and her family to help support them since Maymouni’s imprisonment.
  68. In addition to the family connection between DD and Fakhet, the SSHD contended that Fakhet had been in telephone contact with Al Sadeq while Al Sadeq and DD were in China, according to a Spanish newspaper which appeared to be drawing on a leaked account of report sent to an Investigating Judge in connection with the 11 March 2004 bombings in Madrid. There were telephone calls in early January 2004 between a number used in China by Al Sadeq and a Jordanian in Spain with whom Al Sadeq wanted to set up a “furniture business”. The report says that Al Sadeq and DD were “ together “ in China at that time, although that would not necessarily have meant that they were physically proximate when the telephone calls were made. The Jordanian, from whose July 2004 statement to the Spanish authorities this information was drawn, also said, as we read the document, that he was next to Fakhet in Spain when the latter called London after DD had arrived from China. The Jordanian gave his Spanish fax number to his interlocutor in London. This was not the only call made by Fakhet to London after DD’s arrival. Witness D agreed that he could not say definitively that DD was the recipient of the call.
  69. DD says that he had never met Fakhet but had spoken to him over the telephone a few times. These contacts had no terrorist purpose at all. Their wives had also spoken to each other. Many people who knew Fakhet had not been arrested after the Madrid bombings.
  70. There was an assertion that DD had access to funds and had played a role in financial facilitation, but that was all that there was in open. DD made no comment about it, beyond the general comment that he felt frustrated by the unfair lack of detail in the allegations; we take this to be one of them.
  71. The SSHD also noted markings in an A-Z found in the boot of a car at DD’s address in October 2005, which showed markings along footpaths under the flightpath of Birmingham International Airport. The marking might have been for reconnaissance purposes but might have a wholly innocent explanation. By themselves, Witness D accepted, they were not of any great significance. DD makes no specific comment on this one way or the other.
  72. Witness D was not aware of any Libyan security service interest in DD while he had been in the UK. It was not the SSHD’s case that DD had been involved with the offences for which certain named Libyans were shortly to be facing trial in the UK.
  73. We are entirely satisfied that DD is a real and direct threat to the national security of the UK. He is an Islamist extremist. He is a member of the LIFG and at least within the UK is a figure of some importance and influence. He has close links with a number of senior LIFG members. He has expertise and functions as a propagandist and communicator, although it over formalises the position to suggest that he is appointed to some position to that end. His direct links to Al Sadeq and Mundhir are important in showing his own significance. His outlook was less focused on Libya than theirs, but they did not focus exclusively on Libya either.
  74. DD is a global jihadist with links to the Taleban and Al Qa’eda. Such differences as exist between those two groups have no relevance to the danger he poses. He left Libya earlier than he admits, and has travelled significantly. We are quite satisfied that the more sinister interpretations of his so called “family” website are correct and show his support for suicide operations. The internal evidence, especially the songs and language support that view, but it has to be seen in the context of all that is known about him. Mr Friedman suggested that the martyrdom references and the racist remarks about Jewish pigs showed no particular political orientation; Muslims of many views might make racist remarks of that sort about Jews. That may be so but what DD said is a facet of the overall picture of him. They form part of the material showing his extremist and violent outlook.
  75. The evidence strongly supports the conclusions that he has probably been involved in the procurement and production of false documentation for use by LIFG members. M is a very significant LIFG figure in the UK, of a like outlook to DD’s. DD’s links to Maymouni and Fakhet are not mere misfortune or coincidence; we believe from experience that such family relationships with like-minded people add to contacts, cover, and security.
  76. DD is also a threat to the UK’s national security because his opposition to the Qadhafi regime is a major aspect of his global jihadist outlook. Opposition to the Qadhafi regime, including opposition from an Islamist perspective i.e. from the viewpoint that the regime is anti-Islamic according to their particular strand of religious belief, is not of itself a threat to the UK’s national security. It is the extremist Islamist opposition, which countenances and supports the use of violence against the regime, which is a threat; and particularly so where it is part of a wider jihadist outlook. These activities cannot sensibly be regarded as legitimate self-defence.
  77. In so far as the SSHD’s case includes material which precedes 2000, it evidences a global jihadist outlook. We regard it as quite unlikely that DD would modify his behaviour as a result of the proscription of the LIFG, other than to adopt greater precautions against investigation by the Security Service. We believe that much of what DD has said in his statements is untrue, or selective and actively misleading. Our conclusions draw on the closed material as well.
  78. The National Security case against AS.

  79. The SSHD alleged that AS was a committed Islamist extremist who had been actively involved in providing logistic support to individuals linked to Al Qa’eda, and was linked to a terrorist cell based in Europe which was involved in raising funds, procuring forged documents and in facilitating the travel of recruits to terrorist training camps. He had links to individuals who were involved in attack planning in Europe, and himself had received terrorist training in Afghanistan. It was not alleged against him that he was a member of the LIFG, although the Libyans had accused him of being a member. Mr Friedman raised a number of issues about that aspect.
  80. Almost all of the open evidence that AS represented a danger to the UK came from material supplied by the Italian authorities in connection with the extradition request in February 2003. The Italian prosecuting authorities said, and so does the Security Service, that it shows AS to have been the leader of a cell of Islamist extremists based in Milan, with contacts and links to other extremists, who were preparing for an attack, which by September 2002 was imminent, probably somewhere in Europe. The material is based on intercept, summaries of what police surveillance or other investigation found, and inference. The Security Service points to travel and travel arrangements being made, money raising endeavours, the guarded and coded language used, the obtaining and sending of false documents and false identities, the respect shown for AS despite his youth, for he was about 21/22 years old in 2002, and the planned “football game”, with the radical Islamic religious overtones throughout the conversations.
  81. The material evidences that, by December 2001, AS was part of a group composed, in addition to him, of some eight Tunisian men living in and around Milan, at least in 2002: Cherif, Nassim, Al Hani, Zarkaoui, Trabelsi, (not the Nizar Trabelsi currently serving a sentence in Belgium), Lotfi, Bouyahia and Salmane. Some had a variety of names; AS used a number of different names and national identities which the open evidence specified. The nature of the contacts, the different but joint activities and planning between them, show that they can properly be seen as a group or cell. These are not just coincidences or contacts in normal daily life between like-minded friends in a foreign city. The religious overtones are those of Islamist extremists, as are some of the topics of conversation such as those about jihad, martyrdom, what countries deserve to be attacked, and the tactics and the tactical wisdom of some attacks. One was a very close and supportive follower of Al Qa’eda actions in Afghanistan against western forces, with sources of knowledge not derived from the western press. There are clear signs that the language is guarded or coded at times, and they are concerned about security for themselves and what they are doing.
  82. The activities included obtaining and forging false identity documents on a considerable scale, partly in order to bring people into Italy to join their “programme”, partly for the purposes of their own activities and partly to help them move around. There was concern about how to avoid the stricter border controls of certain countries when travelling, and the risks of militants being stopped on false papers. There is some evidence of drug dealing to raise money to live off and for their terrorist activities, though they disapproved of drug dealing if not used for that purpose; and their dealing is undertaken with other “mujahideen”. They had to get a van for the purpose of this trading. There is no evidence of more than sporadic employment and yet they had access to sums of money in cash for the purchase of computers and other purposes. There is evidence that they recruited Muslims to go to Yemen to join Al Qa’eda supporters there ready for action. All of this occurred while AS was still in Milan or still in touch with the group, and much can be seen from the intercept material itself.
  83. More specifically, the Italian investigation into AS began in December 2001, when AS made contact with a named individual, whom the Italians were already tracking as an Islamist extremist, in order to ask the whereabouts of two other named extremists. In mid January 2002, AS and two other members of the group had tried to buy a night filter for a video-camera he had but he did not want to leave his name with the shop when told that it had to be ordered. The evidence is that the group were then making daily use of the video-camera and were in contact with “brothers” in the UK in connection with it. The purpose of the filming was not ascertained but we regard it as unlikely that it was for tourist or family purposes, and surveillance is much more likely. AS told Al Hani about this time that he needed to leave Italy and AS appears to have left Italy for the Netherlands at some point between about 24 January 2002 and 14 February 2002. He appears to have evaded an attempt by the Italians, who had lost sight of him on 24 January 2002, to capture him at the border, according to a discussion between two members of the group.
  84. On 17 January 2002, Nassim travelled to the Netherlands, met Al Hani and then went on to Iran. Cherif and Al Hani were in touch about Nassim’s progress. AS had been in touch with Cherif and was to be told that he would be contacted when they had an answer. Nassim returned with “five millions”, in unknown currency which was assessed to have come from the head of the mujahideen in Iran, who could indirectly be in contact with Bin Laden. On 27 February 2002 AS told Cherif, who was one of those with whom he was closest, that his programme was changing, although he was content in the Netherlands because no one bothered him and he was clearly planning on staying there for a while. He asked if Nassim had brought the “commission”. Nassim, who had spent ten of his days in prison in Iran, did have an envelope or message which he had intended to hand over at Amsterdam Airport to Al Hani for him to pass to AS. It is assessed that this message was instructions for the cell.
  85. Shortly afterwards, on 2 March 2002, AS was demanding that Nassim procure a false passport for him, and over the next two weeks continued pressing him as a matter of urgency for one, including an Italian one: “things aren’t normal here”. He refused the suggestion that he return to Italy. The telephone contacts with the group became more cautious and guarded. AS was asked by Nassim to get in touch with the Iranians about obtaining from them a substantial sum of money. He demanded that Trabelsi in Italy obtain a portable computer for him, and one week later told Trabelsi that he was now in the UK. That was on 21 March 2002, the last noted contact within the Italian material. The Dutch and Italian police were able to establish the sending of the passport from Italy to AS living under a false name in Amsterdam.
  86. There is some evidence that in March both AS and those in Italy were expecting some news imminently, and it is a reasonable inference from some of the surrounding language, of leaving for paradise, that this news was expected to have some jihadist connection.
  87. From May to September 2002, there is considerable evidence that the group was engaged in planning an attack. Zarkaoui is noted talking to an Algerian about a manual, pieces, powder with mercury, which the Italians reasonably concluded was a reference to mercury switch operated detonators. (These are used to detonate IEDs). He and Cherif discussed obtaining a pistol in the context of replacing one already being owned by one of them. The obtaining of false documents for members of the group continued. On 1 September 2002, Salmane spoke of preparing for a game of football and after Koranic quotations on the duty to inform others, said: “the game is ready…we will win, always victorious! There is no defeat!...We too have to depart if God so wills..” That was seen as a reference to leaving to carry out the “programme which strengthens the faith”. Salmane asked his interlocutor to decide soon on whether he wanted to participate. He rang to say that he would. Salmane said that he would have to see Cherif and the group about preparing a programme for him; he was also willing to depart if God willed.
  88. On 3 September, the whole group was ready for what was a stifled reference to “jihad”. Certain identity documents were to be obtained for the journey. There were some heavy things to be collected, which is assessed to be money hidden somewhere; a substantial amount of coinage, 4500 Euro, was found under the rear seat of a car used by Cherif and there were other supporting sightings of the individuals.
  89. The Italians felt that they had to make arrests on about 23 September in order to stop the “game” taking place. At various times between their arrest in September 2002 and 2005, four members of the group were tried for terrorist related charges in Italy. None were convicted on those charges, although Nassim, Cherif and Salmane were convicted of forged document offences. Zarkaoui was convicted of assisting illegal immigration. Bouyahia was extradited from Malta and later acquitted of all charges. Zarkaoui was sentenced to three years in prison but was released in October 2003; he is excluded from the UK on national security grounds. (He is not Al Zarkawi, deceased, of infamy in Iraq). AS was acquitted in absentia of terrorist charges but was convicted of forgery offences. Those acquittals have not altered the SSHD’s view of what the group was doing or of AS’ role in it.
  90. Although the Commission does not have the reasoned judgment of the Italian Court in AS’ case leading to his conviction in January 2007, it was supplied after the SIAC hearing with the reasoned judgment of the Court in respect of the trial of the other defendants in 2005. The Italian Court accepted that four of the defendants who were present were part of a larger group in which other named defendants and AS participated, sharing a common Islamic fundamentalist viewpoint.
  91. It was not possible, in the view of the Italian Court, to identify further a particular group abroad to which they might adhere, whether Al Qa’eda or in Iran. This meant that there was no historic material from which its aims could be deduced. It was not sufficient simply to characterise them as Islamic fundamentalists, to show that some fundamentalists carried out acts of terrorist violence, and to say that that is what these defendants were therefore planning to do. They might be intending to confine themselves to opposition by words or to undertake violent activity other than terrorism, as defined in Italian law.
  92. The possession of rifles and handguns, video cameras, binoculars and clothing was not sufficient to prove terrorist intent, in the view of the Italian Court, because they might have been obtained for some other violent criminal enterprise, perhaps drug dealing. Nor did the dealing in false documents prove that they were set upon acts of terrorism. Coded language, the nature of the code and security awareness did not show that it was terrorist as opposed to other criminal activity upon which they were engaged. What the Italian Court was looking for was evidence which would prove beyond a reasonable doubt that behind it all was “a precise and fruitful training of a military or paramilitary type specific to the needs of a terrorist cell.”
  93. Having considered all the evidence, the Italian Court was of the view that it had not been absolutely established that the plan which the defendants intended to pursue was to carry out violent acts of an unequivocally terrorist nature. There was an ideological or religious motivation to participate in holy war against the infidel such as the USA, its allies or Israel, who were present on lands which they considered Muslim. They were in the transition stage to action, which was imminent when they were arrested. But where and in what form was uncertain: it could have been onward from Iran to Afghanistan, Malaysia or elsewhere; it might have had to await instructions from those in Iran to whom the Court supposed that the group would go before rather than after the attack. It could have been a suicide attack or not. They were prepared to take part in warlike activities, to sacrifice themselves for their faith, and were prepared to carry out terrorist attacks; but the acts by which they would do that had not been made sufficiently clear. There was no proof that they actually would carry out terrorist attacks or that they had actually planned such attacks properly. The training which they had had in Afghanistan would have been more relevant to guerrilla war than to terrorist attacks.
  94. The Italian Court recognised the probative difficulties which were faced in proving an offence under the relevant Article of the Italian Code but that did not mean that the Court could ignore the evidential gaps. It nonetheless passed some comment on the role of individuals including AS. It said that Lotfi was the lead man in many conversations, but that AS acted as the leader in all the early affairs of the group although his position was vaguer than others and he had been detained abroad as the group moved on to action.
  95. In passing sentence for the false document offences, the Italian Court found that there were no general extenuating circumstances: this activity was part of a particularly dangerous environment to elements of society which should be protected. This dangerous environment was hostile to Italian society and one from which various violent plans emerged: and although they could not be shown to be of a terrorist nature, it could certainly be stated “that their actions would have seriously threatened the lives of others, presumably abroad, actions which were destined to develop the jihad project as a whole.” The defendants intended to commit violent acts which they justified and hoped for. The use of false documents was all part of the plan.
  96. The Italian Court concluded that the proven danger to society, the lack of understanding of the rules of civility and tolerance, the choice to pursue their ideas by violent means required their expulsion after service of their sentence.
  97. AS has been placed on the list of individuals associated with al Qa’eda established and maintained by the UN Security Council, the 1267 Resolution list. He was put on it in November 2003 as a result of the recommendation of the Italian Ministry of Economy and Finance along with other members of the Milan cell. It is not clear to us that that is based on any more material than that which we have seen from the Italian prosecutors. It is unlikely that that listing can add to the significance of that which we have already outlined.
  98. The remaining matters upon which the SSHD relies in open support his general view of AS but are not of themselves of great importance. They reinforce the assessment that AS is an extremist, and a supporter of violence in the Islamist cause. A drawing, which depicted an assault rifle and a grenade adorned with Islamist slogans in Arabic, was seized from AS’ prison cell. It is unlikely that his cellmate had been responsible. In August 2005, AS received some DVDs in the post. These included “The Twin Towers” and “Al Qa’eda”; they were confiscated. This is of but modest weight.
  99. Although Mr Friedman made a number of submissions about what the SSHD’s evidence actually showed, AS did not give evidence and only provided a short statement in which he denied being the leader of any plan to cause terrorist explosions in Europe, and denied, blandly and without more, the SSHD’s summary of the allegations against him. The very form of the denials leaves it wholly unclear what of the detail he accepts or denies or qualifies. He also denied the Libyan claim that he was a member of the LIFG or had trained at Al Qa’eda camps in Pakistan or Afghanistan. His only involvement with false documentation had been in connection with immigration purposes rather than to travel. The material relied on by the prosecution in Italy amounted to no more against him than that he had a conversation about a false passport; (that is only a comment by him on the evidence). The seemingly radical talk, from others whom the Italians had bugged, was commonplace among Muslims and meant nothing; the other events had occurred after he had left Italy, most of them while he was in prison.
  100. He explained the fear which he felt because of the allegations which Libya had made against him. He feared that if he were removed to Italy he would be removed thence to Libya. (This was a fear which underlay his opposition to extradition and had been rejected by the Courts as without sound basis.) He feared to give evidence because he might be put on trial in Italy, the UK or Libya. He did not know what was in the closed evidence or what communication there had been in closed about him between Libya and the UK.
  101. AS points out that he had been in UK custody for four months by the latter stage of the conspiracy in September 2002 and that there are no records of telephone contact between him and the group after 21 March 2002 when he had come to the UK. But he says no more about whom he knew or what he was doing in Italy or the Netherlands, or what the conversations might have meant. There is a considerable amount of Italian prosecuting material which could have been answered instead of the mere bland denial of the case against him. He does not even explain why he used so many false names and identities; he does not appear to deny that he had them. There may be reasons why he is reluctant to give further evidence in this appeal which are understandable. We are not prepared to draw adverse inferences from that reluctance, although our reasons would reflect more AS’ fears of specific self-incrimination or indirect incrimination, rather than all the points which led the Commission to draw no adverse inferences from silence in the Part 4 ATCSA cases. However, it does mean that there is no further explanation from AS of this material.
  102. In our view, there clearly was a group of men with extremist Islamist views, supportive of violence against the West, which had been acting together for some time in the ways we have set out, including recruiting for Al Qa’eda, raising money for terrorist activities and obtaining false identity documents for that purpose. This group can properly be regarded as a serious terrorist group. It appears likely that the return of Nassim from Iran with a message for AS was an important event. This probably activated them, providing them with money and giving them a task, specific or broadly expressed. We regard the only sensible inference as being that the group thereafter was preparing for violence in the jihadist cause probably somewhere in Europe, but it could have been in Afghanistan or Iraq. We believe that the action was probably intended somewhere in Europe because of the equipment which the group had assembled which would have been an unnecessary encumbrance if the action had been intended for Afghanistan or Iraq. The existence of visas for Iran does not show that Iran was a staging post for an attack rather than part of a post attack escape strategy. There is no other way in our view of making sense of the totality of the open material. It is true that there was no evidence of the details of the planned operation such as target, country, or mode of attack. Part of that could be down to security consciousness; it may be that the action was not as imminent as the Italians thought. This “game” is however most unlikely to have been other than a coded metaphor for violent action somewhere against Western interests.
  103. We also accept that AS knew the members of the group and had been part of it up to 21 March 2002. We conclude that he was a highly respected member of the group and that he may well have been its leader for a while, from the references to him by group members as “sheikh”, a term of respect, and particularly because he received the message, with money, which Nassim brought back from Iran; it was for him. He passed on instructions to the group. The probable inference is that that activated the group into the more serious planning phase for its operation. He thereafter changed his location quite rapidly and felt able to be quite demanding of his associates. We do not accept the suggestion that the only material in open against him from the Italians is that he obtained a false passport. That is simply to ignore all the surrounding evidence about him. There is no doubt, from the evidence, of the range of extremists with whom he was in contact. He would have known fully of the activities of the group when he was in Milan and the Netherlands, and what the nature of the task was: jihadist violence probably somewhere in Europe. It could be important for the leader of the group to keep himself away from authorities who would interfere with him as appeared to have been AS’ fear in Italy and again in the Netherlands. However, precisely who if anyone was the leader is not that important; he was an important, leading member at least.
  104. The fact that the Italian Court did not find the terrorist conspiracy proved beyond reasonable doubt, with the specificity which its law required, does not diminish the importance of the general conclusions about which it was satisfied. These demonstrate beyond doubt the nature of the group and its active violent jihadist intentions. This is the group of which AS was a significant part on any view and in which he probably had a leading role up to his departure for the UK. He was an important part of bringing the group to the stage at which it could plan specifically for the acts of violence which by September 2002, were quite probably imminent, and for which we conclude he gave them instructions brought to him via Nassim. We find it difficult to see that the acts of violence which the group was set to perpetrate could have been other than terrorist acts. The precise nature and location of the violence could not be proved, but even if those matters were unknown with precision to AS when he left the Netherlands, ( and they might have been to proceed to Iran to receive final orders), that does not diminish the threat he poses to the national security of the UK.
  105. The more telling points which Mr Friedman made about this material related to the position of AS after 21 March 2002. There are no records of the group being in contact with him up to his arrest or even referring to him in their telephone conversations, with one exception. There was a telephone call shortly before the September arrests by a group member which makes it clear that they have not been in touch with AS for some time. The upshot is that Lotfi told Zarkaoui that he had been unable to make contact with AS despite trying to ring him. It cannot be inferred that that absence of contact was because the group knew that AS was in prison; the conversation does not suggest that. The lack of contact may not have been for want of trying but it is possible, as the SSHD suggests, that AS was sufficiently concerned about his security in this country that he wanted to drop contact. That would suggest that having activated the cell, he ceased to have anything much to do with it. Someone else became referred to as “sheikh”, Cherif. It is difficult to say therefore how far the part played after March 2002 by AS went. Indeed, there is intercept evidence from June 2002 of Nassim being told of AS’s arrest and of his being accused of terrorist offences, which leads to a brief discussion to the effect that that is unjust because AS has done nothing. There is nothing to suggest that the group has lost its leader.
  106. However, from the reasoned judgment of the Italian Court dealing with the other defendants in May 2005, which the Commission did not receive until after its hearing had concluded, there do appear to have been contacts after 21 March 2002, although it is difficult to attribute particular significance to them; see pp 153-163.
  107. It is our conclusion that on the open evidence alone AS is a clear danger to national security. He is an Islamist extremist who has engaged actively and as a senior member with a terrorist group clearly engaged in support work for jihadist activities. He was a leading part of it before its more specific planning of terrorist violence began. That would be sufficient to make him a danger to national security. However, he also gave it instructions after Nassim returned from Iran, which were probably to plan for and to carry out violent actions directed against Western interests, which was probably intended to take place in Europe. The other obvious possibilities include action in Afghanistan and Iraq. The group did plan such violence and set out to achieve it. We are quite satisfied that AS will resume these activities when he is able to do so. The proscription of the LIFG is of no consequence to AS. In so far as any activities relied on occurred before 2000, they relate to his global jihadist outlook. Our conclusions are reinforced by the closed evidence.
  108. Mr Friedman urged that we should form our own view of the evidence and not adopt, out of deference, the views of the Security Service which Mr Burnett said was very used to assessing the significance of material such as this. We recognise that the Security Service has experience in this area but this is not an area for deference. We have formed our own view of the material taking into account the views of the Security Service.
  109. The Refugee Convention

  110. DD won his asylum appeal although he has not yet been granted Indefinite Leave to Remain. AS has not had his claim determined substantively because it is said by the UK that that still remains the responsibility of Italy. We propose to consider DD’s position on the basis that he has been recognised as a refugee, and AS’s on the basis that he has an application outstanding which it will be for the UK to consider substantively.
  111. We adopt but repeat for convenience what the Commission decided in the case of Y, an Algerian, SC/36/2005, [2006] UKSIAC 36/2004_2, 24 August 2006. The SSHD contends first that the Convention no longer applies to protect DD from deportation because the circumstances in connection with which the Appellant was recognised as a refugee have ceased to exist, as it is now safe for him to return to Libya in the light of the Memorandum of Understanding between the UK and Libya; Article 1C(5). Secondly he contends that DD’s terrorist actions cause him to be excluded from its protection under Article 1F (c), and thirdly that DD cannot claim the protection of the non-refoulement obligation in Article 33 (1) because, under Article 33(2), there are reasonable grounds for believing him to be a danger to the security of the UK. Although the first issue does not arise in that specific way in AS’ case, the other two do arise.
  112. DD contends that it is for the SSHD to show, in view of his recognition as a refugee, that the circumstances which led to that grant have changed, and have changed in a sufficiently profound and enduring a way for the hitherto accepted need for international protection to have ceased. The SSHD contended that the circumstances had changed sufficiently. Those submissions are best dealt with after consideration of the evidence in relation to safety on return.
  113. DD next contends that it is not open to the SSHD to rely upon Article 1F (c), the exclusion provision, because the acts which the SSHD relies on occurred after he had won his appeal, in which his status as a refugee was recognised.
  114. The relevant provisions of the Convention are as follows:
  115. Article 1F:

    “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

    (a)he has committed a crime against peace, a war crime, or a crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes;

    (b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

    (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”

  116. DD relied upon the decision of the Canadian Supreme Court in Pushpanathan v. Canada (MC1) [1999] INLR 36, 1998 CanLII 778 (S.C.C.) at para 58:
  117. “…the general purpose of Article 1F is not the protection of society of refuge from dangerous refugees, whether because of acts committed before or after the presentation of a refugee claim; that purpose is served by Article 33 of the Convention. Rather, it is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status… The relevant criterion here is the time at which refugee status is obtained. In other words, Article 1F(C) being referable to the recognition of refugee status, any act performed before a person has obtained that status must be considered relevant pursuant to Article 1F(C).

  118. Although Pushpanathan was considered in general terms by the Court of Appeal in A (Iraq) v SSHD [2005] EWCA Civ 1438 at para.24, it did not consider the time issue raised in this case.
  119. The SSHD relied upon a decision of the IAT in KK v SSHD [2004] UKIAT 00101 in which it had held :
  120. “86… In Pushpanathan, as we have seen, the Supreme Court of Canada distinguished between Articles 32 and 33 and Article 1F(b). But it does not in our view follow that the mere fact that a person satisfies the requirements of Article 1 before he commits the act identified as causing exclusion under Article 1F(c) enables him to say that he continues to be a refugee. Article 1F(c) does not contain the words ‘Outside the country of refuge prior to his admission to that country as a refugee’, which are found in Article 1F(b). There is no reason at all to suppose that that difference is accidental. Acts which merit the condemnation of the whole international community must lead to exclusion from the benefits of the Refugee Convention when ever they occur.

    87…. Article 1F (c) is not limited to acts committed before obtaining refuge. If he had been recognised as a refugee earlier, it would make no difference now.

    88… Where, therefore, there are serious reasons for considering that an act contrary to the purposes and principles of the United Nations has been committed, it does not matter when or where it was committed, or whether it is categorised by municipal law as a crime. It leads to exclusion from the Refugee Convention…..

    89… This interpretation of the relevant clauses of the Refugee Convention is entirely coherent and sensible. It identifies what acts will lead to exclusion despite their being ‘political’. A person whose acts (at any time) are contrary to the purposes and principles of the United Nations disqualifies himself from protection under the United Nations’ Refugee Convention.”

  121. We do not find assistance in the SIAC decision of C v SSHD SC/7/2002, [2003] UKSIAC 7/2002, [2004] UKSIAC 7/2002 an ATCSA appeal, because the principal issue to which the remarks there were addressed was recognition as a refugee in ignorance of facts which would have lead to his exclusion if known. That is not this case.
  122. We prefer the reasoning in KK to the dicta in Pushpanathan. It is far from clear that, in the comments relied on by DD, the Canadian Supreme Court was addressing the issue with which we are concerned. Its language is more apt for the position where prior conduct only becomes known after recognition as a refugee. The language is what might have been expected if the issue were being considered more generally, rather as in C v SSHD.
  123. It is clear to us that the exclusion or disapplication provisions of Article 1 contain no principle whereby they are dependant on events which precede the decision as to whether or not a person is a refugee, except where the language is clear. Article 1C is only applicable after recognition as a refugee. Article 1E appears equally applicable to events which occur before and after recognition. Article 1F(b) is specifically limited to events before admission as a refugee. That is particularly important because it stands in clear contrast to the lack of any such limit in 1F (a) and (c); it would have been easy to include it as a general proviso had it been intended. It also contains a geographical proviso that the crime be committed outside the country of refuge, which is not included in 1F (c); that too is relevant to the argument about the temporal relationship between acts before or after entry to the country of refuge.
  124. Being or becoming a “refugee” as defined in the Convention does not require or start with a formal state act of recognition of status. A person simply is or is not a refugee within Article 1A. They may be excluded from that definition in circumstances in which they would otherwise fall within the definition. Emphasis upon the point in time at which an individual receives formal recognition by a state as falling within the definition, usually with an associated immigration status, will tend to obscure the true issue.
  125. There is no reason within the structure of the Convention or in the policy behind the exclusion provisions for treating someone who commits war crimes or acts of terror before the formal recognition by a state of the fact that he falls within Article 1, differently from someone who does the same acts afterwards. That attributes overmuch weight to formal recognition and not enough to the scope of the definition provision. Rather, the emphasis in Pushpanathan is on the rationale that those who are responsible for acts which create refugees, or for other acts seen as equally serious by the Convention, should not benefit from it at all. In a similar vein, a person may become a refugee sur place as a result of events which have happened since leaving the country of nationality, even if previously an asylum claimed failed.
  126. Reliance was placed on the existence of Article 33(2) as the sole post-recognition removal power. Article 33(2) permits someone to be removed notwithstanding that he would be persecuted on return, in circumstances which may overlap with those in Article 1F (c). But they are not expressed in the same way and may not cover the same facts in any particular case. Nor is the possibility of removing someone who is a refugee on that basis the same as the obligatory exclusion of someone from being a refugee, formally recognised or not. True it is that almost all of the Convention is about the position of those who are refugees, but that does not mean that their position cannot change or that the exclusion provisions cannot apply to exclude someone from being a refugee before or after formal state recognition as such. The focus of those provisions remains on acts in the past rather than on future risk.
  127. Article 1F (c ) does not prevent reliance on acts which were done before an individual was recognised as a refugee, whether or not they come to light before or after that recognition. That was not in dispute. So this first point does not arise in AS’ case. In any event, most of the material relied on DD’s case precedes the appeal decision in May 2005, and indeed much precedes his arrival in the UK.
  128. We accept the general submissions of the SSHD that terrorism is contrary to the purposes and principles of the UN. This is borne out by the decision of SIAC in Mukhtiar Singh and Paramjit Singh v SSHD 31.7.00 and of the IAT in KK, above, paragraphs 85, 93 and 96. It is not necessary to set them out here. That decision was approved in AA (Palestine)(Exclusion Clause) v SSHD [2005] UKIAT 00104. But this exclusion provision requires that there be serious grounds for thinking that an individual is guilty of acts which, to use the language of KK, are the subject of intense disapproval by the governing body of the entire international community”. Merely characterising them as “terrorist” is neither necessary nor sufficient.
  129. We regard the findings which we have made about the activities of each of these Appellants as showing that they should be excluded from the protection of the Refugee Convention. The contrary was not seriously argued. There is sufficient evidence, in DD’s case, of acts preceding his arrival in the UK and the appeal decision to require his exclusion. The same would apply to AS before his arrival in the UK.
  130. The exclusion of DD, and AS for that matter, from the protection of the Refugee Convention is not to be balanced against other considerations such as the risks of persecutory treatment which they might face on return to Libya. The Convention contains no such balancing provision and in any event, s34(1) ATCSA 2001 would exclude any such balance. It is in these terms:
  131. Articles 1(F) and 33(2) of the Refugee Convention (exclusions: war criminals, national security, &c.) shall not be taken to require consideration of the gravity of-events or fear by virtue of which Article 1(A) would or might apply to a person if Article 1(F) did not apply, or

    a threat by reason of which Article 33(1) would or might apply to a person if Article 33(2) did not apply.”

  132. We turn to the third Refugee Convention issue: ‘refoulement’.
  133. Article 33: Prohibition of expulsion or return

    1.         No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories, where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

    2.        The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particular serious crime, constitutes a danger to the community of that country.

  134. The non–refoulement obligation in Article 33(1) is subject to the exception in Article 33(2). The third contention of the SSHD was that DD fell within the exception, and AS too were he a refugee. This issue would arise if DD were to remain a refugee because there had been an insufficient change in circumstances for Article 1C(5) to apply, and if he were not excluded under Article 1F (c). It is obvious from our conclusions about national security that it is our view that there are “reasonable grounds” for regarding him as a danger to the security of the UK. The same applies to AS were the issue to arise. As with Article 1F(c), there is no balancing provision within the Convention, weighing the degree of risk and the severity of any persecutory treatment which they might face against the danger to the security of the UK which they pose and the benefit to it which their removal would bring.
  135. This issue was considered by the IAT in SB (Haiti-cessation and exclusion) [2005] UKIAT 00036 at paragraphs 81 -83. This case referred to the decision in T v SSHD [1996] AC 742 which concerned the return to Algeria of a terrorist excluded under Article 1F. It had been suggested to their Lordships that there was a clearer case for a balance to be struck under Article 1F than under Article 33(2), and that support for a balancing exercise in the latter could be extracted from the reasoning of the Court of Appeal in R v SSHD ex parte Chahal [1995] 1 WLR 526. Their Lordships gave short shrift to the argument that there was a balance to be struck. The position is now settled by s34 ATCSA which precludes any such balance being struck.
  136. The position is therefore clear: each Appellant is a danger to national security and the Refugee Convention provides no protection against removal.
  137. The risks on return faced by the Appellants

  138. In Notes Verbales of 18 July and 8 September 2006, the Libyan government confirmed that DD is a Libyan national who stands accused of membership of the LIFG. We have found that he is an LIFG member. He appears on a list of terrorist suspects issued by Interpol on 4 February 2006, which is an indicator of Libyan interest. He has not been tried in absentia, contrary to his claim based on the forged summons. He would be investigated. A charge under Article 206 of the Penal Code, which would be the relevant Article for membership of the LIFG, carries the death penalty, but that is subject to Article 29, which deals with mitigation. The Notes Verbales contains various assurances which we set out later.
  139. In Notes Verbales of 17 July and 8 September 2006, the Libyan government confirmed that AS is a Libyan national and asserts that he is a member of the LIFG who trained with Al Qa’eda in Pakistan. The Libyan government confirmed that if there is sufficient evidence, he would be tried for an Article 206 offence. He is on the UN 1267 list as a result of the Italian authorities’ actions.
  140. Both are seen by the Libyan authorities as Islamist extremists and this judgment which takes that same view of them, and regards them as supporters of global jihad, would be available to the Libyan authorities. They would be regarded as very hostile to the regime. They could each be charged with the more serious offence under Article 207, which also carries the death penalty. DD has already been found by an Adjudicator in 2005 to be sufficiently opposed to the Libyan regime that he would be at risk of a breach of Article 3 on return. Obviously that was without contemplation of the arrangements upon which the SSHD now relies.
  141. It is accepted by the Secretary of State that upon arrival in Libya, both Appellants would be detained and questioned; they would probably be put on trial. Accordingly, the circumstances in which they will be detained, questioned and tried raise issues about their treatment, period of detention and the fairness of the process. If convicted, further issues are raised as to the risk of ill-treatment while serving any sentence. The offences for which the Appellants would probably be tried carry the death penalty; that gives rise to further issues.
  142. Mr Oakden, who was the Director of Defence and Strategic Threats at the FCO, and since August 2006 UK Ambassador to the UAE, said in his second statement that serious concerns remained about the human rights situation in Libya, including restrictions on freedom of expression and assembly, political prisoners, arbitrary detention and conditions in Libyan prisons. On behalf of the British Government he welcomed the opening of a dialogue between the Libyan authorities and NGOs concerned with human rights. He continued in paragraph 9:
  143. While not expressing any opinion or endorsing the published assessments of NGOs or other governments on the human rights situation in Libya, it is not the British Government's intention to contest the general thrust of such reports in this litigation. While each case and the specific assurances given must be considered on its particular facts, it is inherent in these cases that the British Government judges that it could risk breaching its ECHR obligations if it were to deport these individuals to Libya without first obtaining assurances as to their treatment on return."

  144. The witnesses on behalf of the SSHD accepted that, but for the Memorandum of Understanding, the UK Government would have serious concerns about the real risks faced by the Appellants as extreme Islamist opponents of the Qadhafi regime and their alleged membership of the LIFG: torture or other ill-treatment, incommunicado detention without trial, an unfair trial, imprisonment and torture as political prisoners, a risk of the imposition of the death penalty and perhaps of it being carried out for an Article 207 offence. There was no agreed risk of extra-judicial killing in the absence of the MOU.
  145. Mr Oakden did not give oral evidence in these appeals. That was given by Mr Anthony Layden, the UK Ambassador to Libya from October 2002 to April 2006, now a retired diplomat and appointed to the FCO as Special Representative for Deportation with Assurances. He adopted the evidence of Mr Oakden, although he produced his own further statements.
  146. As Mr. Layden made clear in his evidence, it was not the Secretary of State's case that there were changes in Libyan society or politics sufficient of themselves to provide protection. He agreed that the Appellants would be seen as enemies of the state, although he added, without detail, that there were people who had returned to Libya in similar circumstances walking free in Libya.
  147. Mansour El-Kikhia, the Appellants’ expert, is Associate Professor and Chair of the Department of Political Science and Geography at the University of Texas at San Antonio. He was born in Libya and his academic life has focused upon research, speaking and writing on the social political and economic conditions in Libya. His book, Colonel Qadhafi: The Politics of Contradiction (1997) is a standard text. At the commencement of his report he recounts that his cousin, also called Mansour Kikhia, was a well known human rights activist, having previously been Libya's Foreign Minister before the revolution and Libya's ambassador to the United Nations in the late 1970s. Many believe that his disappearance in Cairo in 1993 was the result of his assassination by Libyan security services, e.g. the Amnesty International Press Release of 8 December 2003: Time to break the 10-year silence on Mansour al-Kikhiya. Professor El-Kikhia did not give oral evidence.
  148. The general human rights situation in Libya

  149. With those factors in mind we examine the background material on Libya. Most of it is not controversial. Indeed, the Operational Guidance Note issued to decision-makers within the Home Office in October 2006 states:
  150. “The following human rights problems were reported in 2005: inability of citizens to change the government; torture; poor prison conditions; impunity; arbitrary arrest and incommunicado detention; lengthy political detention; denial of fair public trial; infringement of privacy rights; severe restriction of civil liberties-freedom of speech, press, assembly, and association; restriction of freedom of religion; corruption and lack of government transparency; societal discrimination against women, ethnic minorities, and foreign workers; trafficking in persons and restriction of labour rights.”

    It concludes:

    “The Libyan government continues to be repressive of any dissent and opposition political activists and opposition Islamic activities are generally not allowed to operate on any substantial scale within the country. If it is accepted that the claimant has in the past been involved in opposition political activity or is a radical Islamic activist for one of the opposition political or Islamic groups mentioned above then there is a real risk they will encounter state-sponsored ill-treatment amounting to persecution within the terms of the 1951 Convention. The grant of asylum in such cases is therefore likely to be appropriate.”

  151. This can safely be assumed to reflect the United Kingdom Government’s views of the state of affairs in Libya. The first passage is directly taken from the US State Department Report most recently in the report for 2005, issued on 8 March 2006. The 2006 Report was sent to us in March 2007 by the solicitors for DD. It is to much the same effect. The second extract reflects the guidance which the IAT/AIT has given in a number of cases.
  152. The Human Rights Watch report of January 2006 Words to Deeds summarises its assessment as follows:
  153. “Despite some improvements, the government still bans political parties and groups, non-state-run media and independent civic organisations working on human rights or political affairs. Government critics are arrested and detained in violation of Libyan and international law, and the fate of many political prisoners remains unknown. Interrogators sometimes use torture to extract a confession.

    Despite the restrictions, a picture emerged of a country undergoing gradual change after years of strict repression and global isolation.

    Civil and political rights in Libya are severely curtailed. Individuals are not free to express views critical of the government, the unique Jamahiriya political system, or the country's leader, Mu’ammar al-Colonel Qadhafi. Those who do express criticism or try to organise opposition political groups face arbitrary detention and long prison terms after unfair trials. Despite improvements, torture remains a serious concern. A pervasive security apparatus monitors the population to a high degree.

    Some of Libya's laws are at odds with the country's international human rights commitments, specifically the International Covenant on Civil and Political Rights. Most notably, Law 71 bans any group activity based on a political ideology opposed to the principles of the 1969 revolution that brought Colonel Qadhafi to power. Violators of the law can be put to death. This and other legislation effectively prohibit the establishment of political parties and genuinely independent nongovernmental organisations.”

  154. The text of Law 71 (which criminalises membership of political parties and any group activity opposed to the ideology of the Revolution) is found in paragraph 3 of the Appellants’ Chronology itself taken from Professor Vandewalle’s History of Modern Libya:
  155. “The punishment is death for anyone who calls for the establishment, grouping, organisation or formation prohibited by this law, or establishes, organises, administers or finances it, or provides

    a place for its meetings, or joins or encourages this by whatever means, or provides any assistance to it… There shall be no difference in the severity of the punishment between the leader and the subordinate, however low the position may be within the party grouping, organisation, formation, unit, cell and the like.”

    A number of Islamists have been tried and sentenced to death under this provision.

  156. Professor El-Kikhia refers to the January 2006 report of Human Rights Watch following its visit to Libya in May 2005: the fear amongst ordinary Libyan citizens is "palpable and intense". A report of October 2006 from Reporters Without Borders following a visit in September 2006 speaks of the impossibility of journalists speaking out with impunity in terms critical of the regime. It would, for example, be "unthinkable" for adverse comment to be made about Colonel Qadhafi's Green Guide. The same report, entitled ‘We can criticise Allah but not Colonel Qadhafi” states that, despite recent apparent relaxations, little has changed in the political and ideological domain. This is a view shared by Professor El-Kikhia. The prominent but ageing dissident Fathi Al Jahmi has been detained for years for “slandering” Colonel Qadhafi. Mr Layden said that he was now under house arrest, and possibly facing further prosecution. Although the USA had spoken out about him, they did so with no prior agreement or promises from the Libyans about their treatment of him.
  157. There are many NGO reports over many years which deal with the wretched human rights position in Libya. It is not necessary to set them out in detail. Many of them precede 1999, the restoration of diplomatic relations and 2003, the decision to abandon Weapons of Mass Destruction. We have focused on the more recent reports, as the more significant. There is no COIS Report on Libya.
  158. Torture

  159. The US State Department Report for 2005 records that, although the law prohibits torture and other cruel, inhuman or degrading treatment or punishment, security personnel routinely tortured prisoners during interrogations or as punishment. Reports of torture were difficult to corroborate since many prisoners were held incommunicado. The reported methods of torture included chaining to a wall for hours, clubbing, electric shock, breaking fingers and allowing the joints to heal without medical care, suffocating with plastic bags, deprivation of food and water, hanging by the wrists, suspension from a pole, cigarette burns, threats of dog attacks, and beatings on the soles of the feet. Representatives of Physicians for Human Rights and the International Federation of Health and Human Rights Organizations visited Fathi Al-Jahmi and reported that his isolated confinement and sporadic and inadequate medical treatment constituted cruel, inhuman and degrading treatment.
  160. In the Human Rights Watch report of January 2006: Words to Deeds, HRW, whilst acknowledging that torture is a crime under Libyan law and the government has repeatedly claimed that it investigates and prosecutes cases in which torture is alleged, says that 15 out of 32 individuals whom HRW interviewed in prison said that Libyan security forces had tortured them during interrogations, usually to extract a confession. HRW interviewed all the defendants in the Benghazi trial of five Bulgarian nurses and one Palestinian doctor at the end of May 2005. Four of them gave detailed testimony of electric shocks, beatings to the body with table legs and wooden sticks, and beatings on the soles of their feet. Electric wires were attached to various parts of the body, including breasts and genitals. One detainee reported that her confession was in Arabic without translation and that she was ready to sign anything just to stop the torture.
  161. On 5 September 2006, Mr Layden sent an e-mail to Dr Hall of “Doctors for Human Rights”, a charitable medical organisation, in which he sought unsuccessfully to persuade it to alter its refusal to assist in training those who would be involved in monitoring the return of the Appellants. He had not appreciated that this e-mail would become public but readily accepted that it reflected his views. In this e-mail, Mr Layden agreed that Libya had a sorry record on torture and stated that if this had not been the case, the United Kingdom government would not have needed to secure the assurances that have been secured about the treatment of Libyan terrorist suspects detained in the UK. In his evidence, he agreed that the sequence of reporting from respectable and reputable NGOs was so consistent that one that simply could not ignore it and, as a consequence, he accepted that but for assurances there was a real risk of torture of the political opponents of Colonel Qadhafi and the regime.
  162. Fair trial and detention

  163. The judicial system is composed of four tiers. The summary courts hear cases involving misdemeanours of lesser value. The decisions of this Court may be appealed to the courts of first instance. These were described by Mr Layden as the Court of Appeal which, in serious cases, sat as a court of first instance. These first instance courts are composed of chambers of three judges and have the authority to adjudicate in all civil, criminal and commercial cases. Cases from the courts of first instance may be appealed to the three Courts of Appeal which are composed of panels of three judges. The final Court of Appeal is the Supreme Court composed of five separate chambers. The Supreme Court sits in panels of five judges and rules by majority decision. Above this structure and exercising a function that goes beyond a simple judicial one is the Supreme Council for Judicial Authority.
  164. The General People’s Congress abolished the People's Court on 12 January 2005. Until it was abolished, the People’s Court was a distinctively unjust feature of the criminal justice in Libya. Introduced in 1988, it was separate from the mainstream judiciary. Professor El-Kikhia refers to it as totally unaccountable; hearings were held in private, often in the absence of defendants, with no right to a lawyer or notification of the charge. Its lack of independence was consistently acknowledged. Human Rights Watch described it as an extraordinary court which heard most political and security cases and had become notorious for politically motivated judgments and biased trials.
  165. Notwithstanding the abolition of the People’s Court, there is some NGO reporting, from HRW notably, that an ad hoc revolutionary court was used in the retrial of eighty five Muslim Brotherhood members recently. This may be a reference to a specialist court set up to handle the remaining cases from that Court. Mr Layden was unable to assist on what this was.
  166. Alison Al-Baddawy, a research fellow at the International Policy Institute at Kings College London, in a report for Freedom House “Countries at the Crossroads 2005”, highlighted the difficulty in separating judicial decisions from the legislative, executive and other parts of government, as all these institutions of state were tightly linked and worked together in the interests of the revolution. She said:
  167. “Article 31 of the 1991 Promotion of Freedoms law states ‘Judges are independent in their decisions and that there is no authority above them apart from the law.’ Under the law, all parties are treated equally before the courts and tribunals. However Colonel Qadhafi has ultimate control over the outcome of important cases, especially those of a political nature.”

  168. This theme is acknowledged in the US State Department Report for 2005, dated 8 March 2006, in the passage entitled “Denial of Fair Public Trial”. Although the law provides for an independent judiciary, it was not independent in practice: Colonel Qadhafi could interfere in the administration of justice by altering court judgments or replacing judges. The judiciary itself failed to incorporate international standards for fair trials, detention and imprisonment. The government used summary judicial proceedings to suppress domestic dissent.
  169. More than half of all prisoners were awaiting trial. After two days detention by the police, a prosecutor could authorise a further seven days detention. The courts could then extend detention for periods of thirty days at a time. The Penal Code also contains provision for preventative detention in Articles 122 to 123, and there may be some overlap between these two sets of provisions. This permits detention for fifteen days, an extension by the investigating judge for a maximum of a further thirty days and a three judge court of first instance can extend that for a further forty five days.
  170. One feature of trial-related practice is incommunicado detention. Many political detainees, including Islamists, were so held for unlimited periods and often in unknown places, mainly in Abu Salim. Many were held for only a few months but some for rather longer, running into years. The US State Department Report for 2005 suggested that there were hundreds of such prisoners, possibly two thousand, held in institutions controlled by Revolutionary Committees. The State Department Report gave as examples Al Kilani, who returned to Libya with, said HRW, Libyan assurances given to h