SS (Libya) v Secretary of State for the Home Department [2011] EWCA Civ 1547

Case No T2/2010/2142[2011] EWCA Civ 1547
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
SPECIAL IMMIGRATION APPEALS COMMISSION
SC56/2006
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/12/2011
Before
LORD JUSTICE CARNWATHLORD JUSTICE RIMERLORD JUSTICE JACKSON
Between
SS (LIBYA)AppellantSECRETARY OF STATE FOR THE HOME DEPTRespondentJUSTICEIntervener
Michael Fordham QC & Alasdair Mackenzie (instructed by TRP Solicitors) for AppellantTim Eicke QC, Kate Grange (instructed by Treasury Solicitors) for RespondentMartin Goudie appeared as Special AdvocateThomas De La Mare & Tom Hickman appeared for IntervenerHearing Hearing date : Thursday 3rd November, 2011
JudgmentLORD JUSTICE CARNWATH :
[1]At issue in this appeal is the approach, procedural and substantive, of the Special Immigration Appeals Commission to the application of article 1(F)(c) of the Refugee Convention (or the equivalent provisions under the EU Qualifications Directive). That excludes a person otherwise entitled to protection, if :
“(c) he has been guilty of acts contrary to the purposes and principles of the United Nations”
[2]The Commission held that the appellant was excluded because of his links with an alleged terrorist organisation, the Libyan Islamic Fighting Group ("LIFG"). The appellant argues, in summary, that they adopted an unfair procedure, in that the basis of the allegation was not properly disclosed, and that they applied an erroneous definition of “terrorism”.

Background facts

[3]SS is a Libyan national, born in 1966, who arrived in this country in 2001, having spent some three years in Turkey. His claim to asylum was dismissed by the Secretary of State, and on appeal. However, on 7th May 2002, since it was accepted that he could not then safely be returned to Libya, he was granted four years exceptional leave to remain.[4]On 24th May 2006, he was detained and served with a notice of intention to deport on the grounds that his presence was not conducive to the public good. The Secretary of State alleged that he was an active member of the LIFG, and that his continued presence in the United Kingdom posed a threat to its national security. However, notice of intention to deport was withdrawn on 7 April 2008. On 30 April 2008 he made a fresh claim for asylum, relying on a note from the Libyan Government stating that he was a Libyan national and that he would be detained on return and investigated for membership of a prohibited terrorist organisation. Asylum was refused on 13 February 2009, but he was granted six months discretionary leave to remain, which was renewed for a further six months until 13 February 2010, after which he became entitled to appeal against the rejection of his asylum claim.

SIAC’s judgment

[5]The appeal was heard (pursuant to a certificate of the Secretary of State under the Nationality, Immigration and Asylum Act 2002 s 97) by the Special Immigration Appeals Commission. The panel (“the panel”) was presided over by Mitting J, and proceeded partly in closed session. The hearings were on 13-14th July, and judgment was given on 30th July 2010.[6]Before the panel, it was not in dispute that he was included in a list sent by the Libyan authorities of individuals wanted on suspicion of involvement with the LIFG. Nor was it in dispute that his inclusion in the list meant that he was at risk of detention and torture in Libya. The Secretary of State asserted that, even if otherwise qualified for refugee status under the Convention, he was excluded from the protection under Article 1(F)(c). On that issue the appeal failed. In this court, having regard to the changing circumstances in Libya, the Secretary of State has withdrawn the concession that he was otherwise entitled to refugee status, but that issue will not arise for consideration if the exclusion is held to have been rightly applied. (We have not been asked to consider whether the events in Libya might render the remaining issues in this appeal academic.)[7]For the purpose of the open session, the panel noted that SS had been given no “gist” of the key allegations against him, save for the assertion that he was and remained a member of the LIFG. They summarised his brief oral evidence:
“In it, he denied that he had ever belonged to the LIFG, said that he was not aware of its objectives, and that he only knew the names of some of its members because they had been mentioned in the media. He said that he did not support the use of violence to overthrow Colonel Gaddafi and had not helped to raise money to help others to do so.”
Of this evidence the panel commented: “Like the adjudicator who dismissed his original asylum appeal, we do not believe anything which he has said which is material to his asylum claim. He was an unimpressive witness. He did not, as some of his colleagues and former colleagues have done, begin to tell the truth about his beliefs and actions in the period before he left Libya and before and after his arrival in the United Kingdom. To the extent that we are able to make findings about those matters, they are set out in the closed judgment and are based on closed material. We are satisfied that he was, while in the United Kingdom and almost certainly before his arrival, a member and supporter of the LIFG.” (para 3) They accepted that the finding that he was a member and supported of LIFG was not in itself determinative of the appeal.[8]They went on to consider the law relating to activities that were “contrary to the purposes and principles of the United Nations”. While it was clear that “terrorism” was contrary to United Nations principles, there was room for argument about what precisely that expression covered. The panel commented: “Perhaps unsurprisingly there is no internationally agreed definition: one man’s terrorist is another man’s freedom-fighter.” (para 8)[9]The panel considered various definitions of “terrorism” in international instruments, and in particular the definition of “terrorist act” in section 1 of the Terrorism Act 2000 (applied by section 54 of Immigration etc Act 2006), and the “common position” adopted on 27 December 2001 by the European Council. Basing themselves on the “common ground” between the two, they concluded:
“15 … The fundamental definition of terrorism… is the use or threat of action designed to influence a government or to intimidate a population by serious acts of violence and some acts of economic disruption. 16. We have not been referred to and are not aware of any widely accepted international definition of terrorism which differs in any essential respect from that summarised above. There is clearly room for debate about the inclusion of serious disruption to the economic infrastructure of a country not caused by violence in the definition and an implied exclusion of lawful acts of war, possibly including civil war. (cf. KJ (Sri Lanka) v SSHD, below). But we doubt that any international organisation or reputable commentator would disagree with a definition of terrorism which had at its heart the use or threat of serious or life threatening violence against the person and/or serious violence against property, including economic infrastructure, with the aim of intimidating a population or influencing a government, except when carried out as a lawful act of war.”
[10]They noted two particular arguments of counsel for SS: first, (relying on KJ (Sri Lanka) v SSHD [2009] EWCA Civ 292, [2009] Imm AR 674) that the LIFG had never done anything more than target the central government of Libya and its officials and armed forces, and that accordingly support for, or even participation in, such acts was not enough to bring the exclusion into play; and, secondly, (relying on comments of Sedley LJ in Al-Sirri v SSHD [2009] EWCA Civ 222, [2009] INLR 586) that the LIFG’s activities lacked the “international character” which was an essential feature of terrorism. The panel rejected both submissions.[11]Of the first, they considered that the court’s failure in KJ (Sri Lanka) to refer to the definition of terrorism in the Terrorism Act 2000 rendered its decision “per incuriam” and therefore not binding. In any event, the acts for which the LIFG had been responsible went well beyond those held in KJ (Sri Lanka) not to amount to terrorism. The panel concluded that, judged by the definition that they had formulated earlier, the publicly reported activities of the LIFG amounted to acts of terrorism:
“18. For present purposes, we rely, we believe uncontroversially, on the following sources: the report of Alison Pargeter of 31 March 2010, paragraph 1.vii, an article by Moshe Terdman in the June 2005 edition of PRISM occasional papers, page 3, and the article by Omar Ashour of 26 April 2010 in The Star. Between 1995 and 1998, the LIFG conducted a number of violent attacks in Libya. The first two were at a hospital and at a prison, to release detained comrades. There were fierce clashes between security forces and LIFG members in Benghazi in September 1995, leaving dozens killed on both sides. Thereafter, the LIFG carried out targeted attacks on police stations and high ranking officials within the Libyan Government and security services. In June 1996, LIFG fighters killed eight policemen at a training centre in Derna. As many as three assassination attempts were made against Colonel Gaddafi: the first in February 1996, when several of his bodyguards were killed; the second in November 1996, when a grenade was thrown at him and missed; and the third in 1998, when his vehicle was ambushed in Egypt. According to Omar Ashour, these attacks left 165 Libyan "officials' ' dead and 159 injured. LIFG losses were comparable. 19. All of these acts were, as far as we can tell from the brief descriptions from which we have culled that summary, acts of terrorism….”
[12]Of the argument that the LIFG’s activities lacked the necessary international character, they observed that Sedley LJ had not been “attempting a universal definition” but dealing with the facts of the case. More generally, they said:
“21 ... we do not accept that terrorism must have an international character or aspect in order to come within Article 1(F)(c). As Security Council Resolution 1624 makes plain, it is the duty of states to deny safe haven to those who have committed a terrorist act. The assassination of a political leader by a national of the same state pursuant to a plot entirely organised and financed within that state can be just as much capable of disturbing the peace of the world as an identical attack financed from abroad. There is no rational basis for distinguishing between the two. In any event, most terrorist organisations of any scale, and certainly the LIFG, are internationally organised or financed or have international links…”
[13]On the facts of this case, they regarded the issue as “academic” commenting:
“22. LIFG members have, for many years, shared facilities and fought with Al Qaeda in Afghanistan. Some of them, led by Abu Laith attempted to secure the merger of Al Qaeda and the LIFG in 2007. Abu Laith was killed, and the merger did not take.... (Counsel for SS) accepts that these activities were terrorist activities.

(c) ”

[14]They accepted that to justify exclusion of an individual under Article 1(F)(c), a close examination of his own role was required in order to establish whether there were (in the words of Lord Brown): “...serious reasons for considering him voluntarily to have contributed in a significant way to the organisation's ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose” (R (JS) (Sri Lanka) v SSHD [2011] 1AC 184, para 38-9). This was also consistent with the three stage test proposed by the Advocate General in Joined Cases C-57/09 and C-101/09 B and D v Germany para 77 to 79.[15]Applying that approach, they concluded that there were serious reasons for considering that SS had been guilty of acts contrary to the principles and purposes of the United Nations and so was excluded from recognition as a refugee under Article 1(F)(c). They added that, in reaching that conclusion, they had “relied determinatively upon closed material” (para 28).

The issues in the appeal

[16]The live grounds of appeal (taken from the appellant’s skeleton) are: Procedure i) The panel erred in finding that there was no need for any disclosure to the Appellant of the allegations against him of involvement in terrorism; ii) In any event, it made findings which were contrary to the SSHD’s open case; Substance iii) It adopted an incorrect definition of ‘terrorism’, and in particular erred in not following the decisions of the Court of Appeal in Al-Sirri v SSHD [2009] EWCA Civ 222 and KJ (Sri Lanka) v SSHD [2009] EWCA Civ 292; iv) It erred in finding that the LIFG had carried out acts of terrorism, as opposed to acts of war, and/or in overlooking the lack of an international dimension; v) It failed in any event to make any findings that the Appellant had contributed in a significant way to any terrorist actions [not pursued]; vi) It erred in finding that there was no difference between the definition of terrorism for purposes of the Refugee Convention and that applicable in respect of subsidiary protection under Council Directive 2004/83/EC. The panel granted permission to appeal on grounds (iii), (iv) and (vi), but not on grounds (i), and (ii), for which he needs the permission of this court. On issue (i) (need for disclosure) the appellant, supported by an intervention from JUSTICE, argues that we should make a reference to CJEU.[17]We indicated at the beginning of the hearing that we would hear argument on all issues as though permission had been granted.

Closed material

[18]Before turning to the issues, I should deal with one procedural point. During the course of the hearing Mr Eicke invited us to look at the closed material, if not otherwise satisfied with the panel’s treatment of the issues. He had not given any forewarning, to the court or to the other parties, of his intention to make this application. Accordingly no steps had been taken to make the closed material available to us before the hearing. In these circumstances we declined the invitation at that stage, while indicating that we might revisit it (on notice to the parties) if we later felt it necessary to our decision. In the event, as will become apparent, we have not found it necessary.[19]I add a brief comment for future reference. We were referred to House of Lords guidance on the point. In Secretary of State for the Home Department v AF [2009] UKHL 28 [2010] 2 AC 269, the House had declined the Secretary of State’s invitation to consider the closed material. Explaining that decision, Lord Hope said “I believe that it was right to do so. The judge at first instance must have access to it where it is said that disclosure of relevant material will be contrary to the public interest, and the Court of Appeal may perhaps need to too if this is necessary for the exercise of its jurisdiction under section 11(3) of (the Prevention of Terrorism Act) 2005. But the process should stop there. The function of the House, as the final court of appeal, is to give guidance on matters of principle. Its judgments must be open to all, not least to the controlled person. The giving of reasons in a closed judgment, which would be inevitable if it were to be based to any extent on closed material, is inimical to that requirement. It is hard to imagine any circumstances in which scrutiny of such material by the House, or by the Supreme Court when it comes into existence, would be necessary or appropriate.” (para 88) [PTA s 11(3) confines appeals in control order proceedings to questions of law.]

[PTA s 11(3) confines appeals in control order proceedings to questions of law.]

[20]This passage makes clear that in the Court of Appeal it is a power which should be exercised sparingly and only when truly necessary to resolve an issue of law before the court. That approach is dictated not merely by the interests of the individual concerned, but also by the general consideration that justice should be conducted as far as possible in public. It is essential, if the court is to be asked to look at closed material, that notice of the intended application is given to the parties and the court as soon as practicable following the grant of permission to appeal. This is necessary both in the interests of case management, to enable appropriate arrangements to be made for the hearing, and so that the Special Advocates, who are responsible for protecting the interests of the appellant in that respect, can consider their position. Other than for special reasons, the court is unlikely to accede to such an application made for the first time at the hearing.

The issues in the appeal

[21]The grounds raise issues of both procedure and substance. The procedural issues are best looked at in the context of the substantive issues to which they relate. I will therefore reverse the order and consider first grounds (iii), (iv) and (vi) relating to the meaning of “terrorism” and its application in this case. Since they overlap, it is convenient to deal with them together.

Terrorism – generally and in this case

[22]I will reformulate the issues raised by these grounds into three questions: i) Definition What is the correct definition of terrorism for the purposes of this case? For this purpose is there any material difference between the approach under Refugee Convention and that under the Qualifications Directive? ii) The CA cases What, if anything, is added to the analysis by the decisions of this court in Al-Sirri v SSHD [2009] EWCA Civ 222 or KJ (Sri Lanka) v SSHD [2009] EWCA Civ 292? iii) The facts In the light of the answers to the previous questions, did the panel err in finding that the LIFG had carried out acts of terrorism, as opposed to acts of war, or in overlooking the lack of an international dimension?

Definition

[23]As the panel observed, the meaning of article 1(F)(c) should in principle be found in international rather than domestic law. However, it has to be applied in a domestic context. It is necessary therefore to start by identifying the mechanisms by which it is brought into domestic law. This was explained by Sedley LJ in Al-Sirri (above) as follows:
“28. Ours being a dualist system of law, the Refugee Convention has no domestic force save to the extent that it is adopted by national legislation. Formerly the route lay through the Immigration Rules, with their origin in the Immigration Act 1971. Since 2006 it has been through the Qualification Directive, which is given domestic force by the European Communities Act 1972. This is not merely a technical fact: by common consent it conditions and qualifies the application of s.1 of the Terrorism Act to art. 1F proceedings. 29. The reason is this. As has been seen, art 12 of the Directive, which sets minimum standards for the protection that member states are committed to give asylum-seekers, by paragraph (2)(c) reproduces the class of acts stigmatised by art. 1F(c) – acts contrary to the purposes and principles of the United Nations – and defines these by reference to paragraphs 1 and 2 of the Preamble to the Charter. Mr Eicke, on behalf of the Home Secretary, has not disputed that, even taken at its most generous, this formula does not go as wide as s.1 of the Terrorism Act 2000. It follows that the adoption by s.54(2) of the 2006 Act of the meaning of terrorism contained in the 2000 Act has where necessary to be read down in an art. 1F case so as to keep its meaning within the scope of art 12(2)(c) of the Directive.”
[24]While I agree respectfully with the end result of that statement, it is perhaps not strictly accurate to speak of the Qualification Directive as a “route” for incorporation of the Refugee Convention. Each has separate force in domestic law, and is (in theory at least) subject to different rules: i) The Refugee Convention continues to have effect under immigration law. However, for domestic purposes, the application of article 1F(c) is qualified by section 54 of the 2006 Act, which in turn brings in the definition of “terrorism” in the Terrorism Act 2000. ii) The Qualification Directive takes effect in domestic law by a different route; that is, under the European Communities Act 1972, by virtue of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006/2525. Neither the 2006 Act (nor by the same token the 2000 Act definition of terrorism), has any direct application. However, as the judge rightly said, authoritative guidance as to the meaning of terrorism in this context is to be found in the European Council’s Common Position 2001/931/CSFP, a usage approved by the CJEU Grand Chamber in B and D v Germany para 90.[25]Although these different sources may seem confusing at first sight, it is important not to over-complicate the practical task of applying them. For the reasons given by Sedley LJ, in so far as the protection under the Refugee Convention (with or without the 2000 Act definition) is less generous than under the Qualification Directive, the latter must prevail. In any event, as the judge said, the common ground is far greater than the differences. In my view he was entitled to start from a “fundamental definition” derived from both, the essence of which was (in his words): “the use or threat of action designed to influence a government or to intimidate a population by serious acts of violence and some acts of economic disruption.” (para 15)[26]The issue in this case turns not on the accuracy of that general definition, as such, but on a much narrower question: that is, the extent to which it requires refinement, in the light of the two Court of Appeal cases, to exclude either(a) “non-international” activities (Al Sirri), or(b) “legitimate” forms of violence, typically military action KJ (Sri Lanka).

The CA cases

[27]I see nothing in the argument based on Al Sirri for the suggested requirement for an “international” dimension. As the panel observed, Sedley LJ did not need to express a definitive view for the purpose of the case before him. It is not clear precisely what this expression is intended to connote. In any event, like the panel (para 21), I am unable to accept that it is a necessary part of the definition of “terrorism”. Furthermore (subject to the issue of fairness to which I will come), the finding that LIFG was sufficiently “international” to meet any such test was, in my view, a finding of fact not open to challenge in this court.[28]The panel’s treatment of the other Court of Appeal case, KJ (Sri Lanka), is more controversial. It is a strong thing for an inferior tribunal, such as SIAC, to decide to disregard as per incuriam a recent, fully considered, judgment of the Court of Appeal. In my view it was wrong to do so. Before saying why, it is necessary to refer in a little detail to the facts and reasoning in that case.[29]KJ (Sri Lanka) v SSHD ([2009] EWCA Civ 292, [2009] Imm AR 674). KJ was a Tamil, who claimed asylum on the grounds that, having served with the LTTE military, he had been suspected by them of defecting to the Sri Lankan army. The tribunal held that he would be at risk from the LTTE if returned, but that he was excluded from protection under Article 1(F)(c). KJ's case was that he had been involved with LTTE as a surveyor in connection with their military activities, and that, although he had been involved in battles with the army, these had been in areas free of civilians.[30]Stanley Burnton LJ (in an agreed judgment) said:
“34. The first question that arises in the present case is: what are ‘acts contrary to the purposes and principles of the United Nations’? It is clear that acts of terrorism – in particular the deliberate killing or injuring of civilians in pursuit of political objects – are such acts. The Tribunal in their decision under appeal stated that acts contrary to the purposes and principles of the United Nations are not to be equated with acts of terrorism. It is unnecessary for me to debate this issue, because Mr Johnson did not suggest that acts of a military nature committed by an independence movement (such as the LTTE) against the military forces of the government are themselves acts contrary to the purposes and principles of the United Nations. I do not think that they are. Moreover, the Tribunal in its determination under appeal seems to have accepted that an armed campaign against the government would not constitute acts contrary to the purposes and principles of the United Nations. For present purposes it is necessary to distinguish between terrorism and such acts.”
(emphasis added)[31]He noted that “mere membership” of an organisation which commits some terrorist acts is not sufficient, but that, on the other hand, a person who “knowingly participates” in, or is otherwise a party, to the planning or financing of such acts, is as guilty as the person who carries out the final deed. He continued:
“37 The application of Article 1F(c) will be straightforward in the case of an active member of organisation that promotes its objects only by acts of terrorism. There will almost certainly be serious reasons for considering that he has been guilty of acts contrary to the purposes and principles of the United Nations. 38 However, the LTTE, during the period when KJ was a member, was not such an organisation. It pursued its political ends in part by acts of terrorism and in part by military action directed against the armed forces of the government of Sri Lanka. The application of Article 1F(c) is less straightforward in such a case. A person may join such an organisation, because he agrees with its political objectives, and be willing to participate in its military actions, but may not agree with and may not be willing to participate in its terrorist activities. Of course, the higher up in the organisation a person is the more likely will be the inference that he agrees with and promotes all of its activities, including its terrorism. But it seems to me that a foot soldier in such an organisation, who has not participated in acts of terrorism, and in particular has not participated in the murder or attempted murder of civilians, has not been guilty of acts contrary to the purposes and principles of the United Nations.”
[32]Applying those principles to the case of KJ, he found that the tribunal had erred by “eliding knowledge and complicity”: “The Tribunal failed to define what acts that were not terrorist in nature were acts contrary to the purposes and principles of the United Nations, and did not identify any facts that constituted serious reasons for considering that KJ had been guilty of them. The word ‘complicit’ is unenlightening in this context. In my judgment, the facts found by the Tribunal showed no more than that he had participated in military actions against the government, and did not constitute the requisite serious reasons for considering that he had been guilty of acts contrary to the purposes and principles of the United Nations.” (paras 34-40)[33]It is to be noted that the issue of individual guilt does not arise in the same way in this appeal. With the withdrawal of ground (v), Mr Fordham must be taken to accept that, if he cannot successfully challenge the finding that LIFG was involved in acts of terrorism, the panel was entitled to find that SS’s individual contribution to those terrorist acts was sufficiently significant to bring him within the exclusion.[34]Returning to the panel’s judgment in the present case, they criticised Stanley Burnton LJ’s reasoning because it ignored the “clear words” of the Terrorism Act definition. I understand the intended reference to be to section 1(1)(c) and (3) [not (iii)], which provide: “(1) In this Act "terrorism" means the use or threat of action where - (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.”. (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.[35]Those words, the panel said - “... appear to preclude the conclusion reached by the Court of Appeal. LTTE military action must have involved the use of firearms and explosives (artillery shells) and was undoubtedly undertaken for the purpose of advancing a political cause - the independence of North East Sri Lanka. As such, it falls squarely within the definition of terrorism in Section 1. It is possible that, as counsel for the Secretary of State conceded, and Sedley LJ observed, in Al-Sirri v SSHD, the natural meaning of the words in Section 1 may not provide a complete answer; but the authority of a decision which does not even address the question must itself be called into question. We are driven to the conclusion that the observations in KJ were made per incuriam and do not bind us.”(para 17)[36]The panel’s critical view of this judgment has not been supported by later cases at a higher level. In R(JS) (Sri Lanka) v SSHD [2010] UKSC 15, Lord Brown (in connection with a different aspect of 1(F)) referred to Burnton LJ’s judgment without dissent. More directly, in SSHD v DD (Afghanistan) [2010] EWCA Civ 1407, after a specific reference to the Terrorism Act definition (para 7) Pill LJ discussed KJ (Sri Lanka) and other authorities, including the SIAC judgment in this present case, and said:
“55. KJ appears to be authority for the proposition that military action directed against the armed forces of the government does not as such constitute terrorism or acts contrary to the purposes and principles of the United Nations. SIAC in SS stated that these observations were made per incuriam. I am not prepared, in the absence of argument beyond that addressed to this court to hold that the observations were per incuriam and it does not appear to me that they were, though the circumstances in which acts of violence against a government are acts of terrorism is a difficult question. Serious violence against members of the government forces would normally be designed to influence the government and be used for the purpose of advancing a political, religious or ideological cause, within the meaning of those words in section 1 of the 2000 Act. On the other hand, it is difficult to hold that every act of violence in a civil war, the aim of which will usually be to overthrow a legitimate government, is an act of terrorism within the 2000 Act.”
(emphasis added)[37]It seems clear, therefore, that the panel went too far in holding that KJ (Sri Lanka) could not be relied on to support a distinction between different categories of violence for political ends.

Application to the facts

[38]For the reasons already given I say no more about the application of Al-Sirri. With regard to KJ (Sri Lanka), although the panel were wrong to treat it as per incuriam, that does not in my view undermine the validity of their conclusions.[39]As already seen, they held that, even if the decision were to be accepted as authoritative, the publicly reported activities of the LIFG (summarised in their para 18 – see above) went “well beyond” those in issue in that case. Later in the judgment (paras 22-23) they also referred to the links between LIFG members and Al Qaeda in Afghanistan, and the abortive attempt by some of them, led by Abu Laith, in 2007 to secure the merger of Al Qaeda and the LIFG in 2007 (described in the open generic judgment in the Libyan control order case [2008] EWHC 2789 paras 8 – 12). They found further confirmation (para 22) that the LIFG has been a terrorist organisation, in its inclusion, on 6 October 2001, of the LIFG in the consolidated list maintained by the 1267 Committee of the Security Council with respect to Al Qaeda, and its designation in the UK as a proscribed organisation on 14 October 2005 by the Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order SI 2005/2892.[40]Mr Fordham challenges the view that the activities referred to in paragraph 18 are terrorist activities. As he submits (in the words of his skeleton):
“... these consisted of (i) actions aimed at freeing detained colleagues (ii) fighting with the security forces and (iii) attacks on police stations and high-ranking officials (including attempts to assassinate Colonel Gadaffi). It was uncontroversial that the LIFG had committed them. But they were not characterised as engendering terror in citizens. They were not said to have an international dimension. They were not characterised as involving violence disproportionate to claimed political objectives, indiscriminate and aimed at third party citizens or persons not connected to political ends being pursued. They were acts of a military nature committed by a movement against the military forces of the government. Only by a misapplication of the law were they regarded by the Commission as acts of terrorism.”
[41]In my view, the panel were fully entitled to reject this approach. KJ (Sri Lanka) is authority for excluding from the definition of terrorism military action against a government. There is nothing in it to suggest that the exclusion extends to violence of any kind against governments, even when directed at non-military targets, such as the police or government officials. The last example in paragraph 18, which is reported as having “left 165 Libyan ‘officials’ dead and 159 injured” is very difficult to categorise as anything other than terrorism. We have been shown no authority to support such a broad interpretation of the “military action” exception.[42]Subject to issues of fairness, I can see no error in the panel’s conclusions on the substantive issues. I would therefore reject grounds (iii), (iv) and (vi).

Fairness

(i) Non-disclosure

[43]The panel noted that the allegations against the Appellant were not particularised in the open material, beyond a general assertion that he was assessed to be an LIFG member, to have associates within the LIFG and to have “been involved in Islamist extremist activities” since he arrived in the UK. It is clear from the judgment that the panel based their decision on these questions “determinatively” on closed material, the content of which was unknown to the Appellant.[44]The panel rejected a submission that it was not open to them to make such findings, in proceedings in which the gist of the allegations against SS had not been made known to him. It was accepted that article 6 of the European Convention on Human Rights did not apply, because the proceedings did not involve the determination of “civil rights”, but it was submitted that he was entitled to equivalent procedural fairness at common law. The panel disagreed (para 26).[45]Before us, Mr Fordham accepts that in this court he cannot challenge the panel’s decision, so far as based on common law principles, in the light of the decision in W (Algeria) v Secretary of State for the Home Department [2010] EWCA Civ 898 (handed down on the day before the panel gave judgment, and now itself subject to appeal to the Supreme Court). However, he now puts his argument on a different legal basis: article 47 of the EU Charter of Fundamental Rights, which is in similar terms to article 6 of the Convention but which, he submits, applies in relation to rights under EU law (including those under the Qualification Directive).[46]A similar issue on appeal from SIAC (relating to rights under the Citizenship Directive) came before this court recently in ZZ v SSHD [2011] EWCA Civ 440. It was decided to refer a question to the CJEU, in the following terms:
“Does the principle of effective judicial protection require that a judicial body considering an appeal from a decision to exclude a third country national or stateless person from refugee status or subsidiary protection, on grounds that he or she has been guilty of acts contrary to the purposes and principles of the United Nations under Article 12(2)(c) and Article 17(1)(c) of Directive 2004/83, ensure that the individual concerned is informed of the essence of the grounds against him, notwithstanding the interests of state security?”
Mr Fordham, supported by an impressively argued intervention from JUSTICE, submits that we should take the same course in this case.[47]For the Secretary of State, Mr Eicke submits that there is no justification for this course. He points to the developments in the authorities since ZZ, including in particular Tariq v Home Office [2011] UKSC 35, [2011] 3 WLR 322, which shows that the issue is more nuanced than we envisaged at the time of ZZ, depending on the balance between the strong interest of the state in maintaining the secrecy of its sources, and the appellant’s right to procedural fairness in light of all the circumstances of the case, including the impact on him of the particular decision. He points out that the present case (unlike ZZ) does not concern the rights of SS to be in this country at all, nor with any restriction on his personal freedom. The only practical issue is whether he is entitled to the benefits derived from refugee status over and above the status of the discretionary leave to remain he already enjoys.[48]In this rapidly developing field, where even our recent decision in ZZ may have been overtaken by subsequent domestic authority, I would be very reluctant to delay resolution of the present case by a further reference if we are not obliged to do so. The CJEU will have the opportunity in ZZ to provide authoritative guidance on the application of article 47 in a closely related area. We note the concerns of JUSTICE that the CJEU rules may make it difficult for them to play a part in that debate if they are not formally joined as parties at this level. However, I do not think that consideration can properly affect our approach to an individual case. As Mr Eicke says, the consequences for SS (at least on the basis of the Secretary of State’s case as it has been until this hearing) are not as drastic as in ZZ. Furthermore, I am not satisfied that the facts of this case make it a suitable one for a reference. SS knew the general case against him based on his links with the LIFG. The reasons for regarding LIFG as a terrorist organisation were no mystery; they were apparent from the open generic judgment to which the panel referred (para 22). There might have been some further disclosure about the alleged extent of his own contribution to those activities, but this is no longer pursued as a substantive issue. In any event, SS’s problem was his inability to give any credible evidence at all on his own behalf. This problem would have remained however extensive had been the disclosure by the Secretary of State. (ii). Findings contrary to open case[49]I turn to the other procedural issue. Mr Fordham submits that the panel’s findings on the central issue contradicted, or went beyond the scope of, the case as presented in the open material.[50]For this purpose it is necessary to refer to the contents of the two Open Statements made on behalf of the Secretary of State in advance of the SIAC hearing. In the first (as amended in May 2010), the conclusion was as follows:
“[SS] is assessed by the Security Service to be a member of the LIFG, who holds strong Islamist extremist views and has a range of contacts across the LIFG community. During his residency in the UK, the Security Service assesses that [SS] has been involved in terrorism related activity. [SS] is not currently considered to be a significant threat to national security. The Security Service assesses that [his] actions whilst resident in the UK are contrary to the purposes and principles of the United Nations, and as such the Security Service recommends that this asylum appeal should be denied” (First Open Amended Statement para 9, emphasis added) The previous paragraph had referred to an Open Letter by UK LIFG released on 3rd July 2009, in which it supported the Group’s decision to cease military action in Libya, and also emphasised that suggestions by Abu Laith al-Libi concerning links with Al-Qaeda did not represent the Group’s policy. The Open Statement accepted that SS was “broadly supportive” of this position, but commented, by reference again to the Security Service assessment: “… despite the progress made by some leading UK figures, the LIFG continues to meet the criteria for a proscribed terrorist organisation under the Terrorism Act 2000. Further… the LIFG as a whole remains a threat to UK national security despite the release of the UK LIFG statement and the diminishing threat from the organisation’s UK branch. ”
[51]Similarly, the second open statement, commenting on SS’ own statement that his life in the UK is “focused around visits to his mosque and little else”, said:
“However, the Security Service continues to assess that during his residence in the UK [SS] has been involved in Islamist extremist activities” (Second Open Statement para 5) Under the heading, “potentially exculpatory material”, it is said: “The Security Service assesses that [SS] does not pose a significant threat to the UK. Throughout 2009 the UK LIFG made a series of group and individual statements renouncing violence, rejecting a merger with Al Qaida and endorsing peaceful negotiations with the Libyan government. The Security Service assesses that [SS] is broadly supportive of this stance. However the Security Service assesses that [SS] has historic links to Islamist extremist activity….” (para 6) The statement concluded: “The Secretary of State maintains the view that since [the Appellant] has been resident in the UK he has acted against the purposes and principles of the UN, namely acts of terrorism.”
(emphasis added)[52]Mr Fordham points out that the clear emphasis of these statements is on SS’s activities since he became resident in the UK in 2001. He contrasts this with the main evidence relied on by the panel to support their view that the LIFG is a terrorist organisation (para 18 of the decision) which dates from the 1990s, well before SS came to this country. The necessary link between SS’s membership of LIFG after 2001, and such allegedly terrorist activities is not explained. This gap, he says, cannot properly be bridged by the panel’s finding that SS was – “while in the United Kingdom and almost certainly before his arrival, a member and supporter of the LIFG” (para 3, emphasis added) Even ignoring the doubt implied by the words “almost certainly”, and even assuming there was evidence in the closed material to support this finding, it was not open to the panel to base their conclusion on a finding which went beyond the allegation on which the open case was based.[53]Mr Fordham makes a further point about the panel’s reference (para 22) to links with Al-Qaeda through Abu-Laith. As he puts it, not only did the Secretary of State not disclose anything supporting such a contention, but on the contrary the Security Service advice was that SS was supportive of the UK LIFG Open Letter (noted above) which expressly repudiated Abu-Laith’s position on links with Al-Qaeda.[54]For the Secretary of State, Mr Eicke argues that there was no unfairness because, although the primary focus of the open and closed case had been the activities as a LIFG supporter in the UK, SS was aware that the Secretary of State’s case included the assertion that he had “historic links to Islamist extremist activity”. Further, when he gave oral evidence at the appeal hearing, he was cross examined about his past activities in Libya prior to his arrival in the UK. He also relies on the absence of any separate ground of appeal from the Special Advocates, which would have been expected if they had seen any unfair discrepancy between the closed and open cases.[55]I have found this the most difficult aspect of the case. The extracts from the Open Statements noted by Mr Fordham seem to me to support his submission that the principal case against SS was essentially related to his activities in connection with the LIFG after his arrival in the UK in 2001. Although the second statement refers to his “historic links”, that did not form part of the main allegation as summarised in the conclusion.[56]This concern is reinforced by the panel’s somewhat equivocal reliance on supposed links with Al-Qaeda through Abu Laith. They refer to the open generic judgment at [2008] EWHC 2789 (also Mitting J), and comment that “to the extent that” a UK based member of the LIFG provided support to such activities, he would be guilty of acts contrary to the principles and purposes of the United Nations. As Mr Fordham says, it is difficult to understand the relevance of this, in circumstances where the Secretary of State was herself asserting that SS supported the position in the 2009 open letter which rejected such links. At the very least, if there was thought to be an issue on this, SS should have been warned.[57]I am very conscious of the respect due to this specialist panel, and particularly of its Chairman, Mitting J, who has unrivalled experience of such cases, including cases involving LIFG. However, I am forced to the conclusion that the panel has overlooked the temporal limits of the open case as advanced by the Secretary of State. This view is supported by their opening comment that he had been given no details “save for the assertion that he was and is a member of the LIFG” (para 2), without any reference to the 2001 start-date. Similarly, in the remainder of the judgment they drew no clear distinction between the periods before and after 2001. On that basis, their reliance in paragraph 18 on activities in the 1990s is understandable.[58]I do not think we are entitled to infer that there may have been something in the closed material which supported a wider view of the case. Although SS has to accept limitations on his normal rights to a fully open trial, he is entitled in my view to expect consistency between the closed and open cases, and the court should proceed on that basis. The fact that he may have been cross-examined about historic links cannot be taken as adequate notice of a significant extension of the case against him. Nor do I think it right to speculate about, or draw any adverse inferences from, the silence of the Special Advocates, for which there may be many reasons.[59]Mr Eicke has referred us to another earlier judgment of SIAC (presided over by Ouseley J), which he says supports the present panel’s conclusion, DD & AS v SSHD SC/42 and 50/2005 (27 April 2007). The judgment referred to the background of LIFG as: 17. … an Islamist extremist organisation which had started in the Afghanistan/ Pakistan border area in 1990, with strong Taleban connections and many members who, even then, had significant connections to Al Qaeda operatives…. [and] carried out a number of terrorist attacks in Libya or claimed to have done so, including at least one assassination attempt on Colonel Qadhafi….” Having discussed the evidence of links between LIFG members and Al Qa’eda, the judgment continued:
“ 30. In our view, whether or not the LIFG generally has close Al Qa’eda connections, or has become more global in outlook, it has not abandoned its aims in Libya. That is a facet of the global jihadist aims anyway. But if the LIFG had no broader outlook in general, the focus on Libya would be yet the more important to it. It is not the force it once was in Libya; it has been significantly degraded by actions taken against it in the 1990s and by the recent arrests of its leaders, now in Libya. The impact of the arrests in the UK with a view to deportation will have weakened it. But that cannot logically be taken as a permanent state of affairs, showing that they now represent no threat to the UK’s national security. There clearly are a number of LIFG members, and other individuals in the UK hostile to Colonel Qadhafi, prepared actively, for example through accommodation during planning and preparation, false documents, fund raising, training and the purchase of equipment, to support the use of violence against his regime if they have the chance. The existence of a UK base from which violent action against Colonel Qadhafi can be planned would be an encouragement to the group to grow in strength.”
[60]Mr Eicke relies on this extract as supporting the case based on the activities in paragraph 18. In my view, it points if anything the other way. It suggests that even by 2007 there had been a significant reduction in the LIFG’s activities in Libya, and reinforces the view that one cannot simply rely on activities in the 1990s as evidence of the position since 2001. It also preceded the 2009 open letter.

Conclusion

[61]In conclusion I would grant permission to appeal on those grounds not covered by Richards LJ’ decision. I would allow the appeal on ground (ii) but dismiss all other grounds. I would remit to SIAC for redetermination in the light of this judgment (including consideration of what if any further disclosure should be made to the appellant for that purpose).

LORD JUSTICE RIMER :

[62]I agree.

LORD JUSTICE JACKSON :

[63]I also agree.

Cited in 1 later judgment