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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 |
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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
The National Security Case against DD
The National Security case against AS.
The risks on return faced by the Appellants
The general human rights situation in Libya
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
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
Introduction
The LIFG and Al Qa’eda
The National Security Case against DD
The National Security case against AS.
The Refugee Convention
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.”
“…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).”
“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.”
“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.”
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.
The risks on return faced by the Appellants
“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."
The general human rights situation in Libya
“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.”
“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.”
“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.
Torture
Fair trial and detention
“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.”