Pakistani student who was arrested in operation pathway is seeking to challnge the SIAC decision at Court of Appeal. Abdul wahab Khan sought leave to challnge the judgement of Special Immigration Appeals Commission on 26 May 2010 under rule 27(2) of The Special Immigration Appeals Commission (Procedure) Rules 2003, which which was refused on 4 June 2010 by Mr. Justice Mitting saying “Permission to appeal refused. I do not believe that the grounds of appeal disclose an arguable issue of law with realistic prospects of success”. Abdul Wahab Khan has only one avenue open to challenge the decision and he is seeking leave from Court of Appeal against the decision of SIAC dated 18 May 2010.Challenge is sought on the following grounds:-
· that The Commission (SIAC) erred in its approach at para 26 when it held that the appellant (Abdul Wahab Khan) was a committed Islamist extremist, however as was invited in the grounds of appeal by the appellant(s), the Commission failed to first define what amounts to an Islamic extremism. It did not later relate it to the activities of the appellant(s) and only then the conclusion may be justified which has far reaching consequences and repercussions for the appellants. In the absence of any explosive material at any of the addresses and possessions, and any direct link to the 3 of April email, and or Pakistani contact (Suhaib), and without giving detailed reasons in open branding him as a committed Islamist extremist, is too vague and too farfetched and requires a definition by courts defining what is classed as ‘Islamic Extremist activity.’ How does it differentiate from a normal activity of those who belong to same faith and or geographical area and are reading prayer, fasting, keeping a beard, going on Blogs, sharing flat with their friends, arranging meals as this may be an Islamic extremist activity to some, if not defined by court(s). To the appellants it’s stereotyping and islamophobia when no charges were made, no explosives were found and no convincing evidence supportive of the charges was found by Crown Prosecution Service (CPS) and unless distinguished otherwise, the activities are normal practice as protected by Art. 8, 9, 10 and 14 of the ECHR 1950. · that the Commission further erred in approach adopted in reaching to its conclusions at para 17 & 26 that the appellants were knowing parties to Naseer’s declared intention especially on 3 April 2009. The Commissions says at para 8 that that it has taken into account substantial volume of closed material and the decision to refuse appeals is based on substantially or, in some instances on determinatively upon that material where the appellant was not able to see, read and or comment which is not an approach in compliance with the Article 6 of the ECHR. How the commission reached to that conclusion is not clearly backed with reasons and evidence in open to which appellants were not able to see, answer or defend at any time of the closed proceedings. · that the Commission further erred when after finding at para 9 that it is sure – satisfied to the criminal standard – that the user of the sana_pakhtana account was an Al Qaeda associate, and then on para 16 that it is satisfied that Naseer was an Al Qaeda operative who posed and still poses a serious threat to the national security of the United Kingdom, it failed to find a link between Abdul Wahab Khan, and Tariq ur Rehman with the Sana_pakhtana email and or Pakistani contact who it considered was an Al-Qaeda associate. The Commission has given no indication of Pakistan’s assessment of sana_pakhtana on this, and reasons for rejecting their open public stand that these students are innocent and or it is a ‘hoax’. · That the Commission further erred in law when it allowed the appeals of XC & UF after finding that those two appellants would be at risk of torture in Pakistan in the absence of written assurances, however, at the same time rejected other 2 appellants (Wahab & Tariq’s) submissions on Article 3 reasons and relied on the case of Bankovic –v- Belgium (2007) 44 EHRR SE5 (para 59-73). We submit that current case is quite different to the facts and reasons of Bankovic case.
Justice Miting announced the judgemnet in the case of ‘Pathway’ on Tuesday 18th May 2010 at London. The appeals of all 5 namely Abid Naseer, Ahmed Faraz Khan, Abdul Wahab Khan, Shoaib Khan and Tariq Ur Rehman were heard for 3 weeks from 9-26 March 2010 at Special Immigration Appeals Commission headed by Mr. Justice Mitting, and Senior Immigration Judge Mr. Warr and a member Mr. Daly as members at Field House, SIAC London, 15-25 Breams Building, London, EC4A 1DZ. Shoaib Khan was cleared from all allegations and two others (Abid Naseer & Ahmed Faraz Khan) were allowed to stay in UK on Article 3 reasons that though they pose a threat but may not be deported due to fear of torture in Pakistan. SIAC whilst forbidding Naseer’s removal on human rights grounds accepted arguments of his lawyer Barrister Jo Benathan QC and observed that weaker Pakistani court system despite their enthusiasm for rule of law, unbridled intelligence agencies and concerns on new born democracy may not rule out torture on the appellants. Amjad Malik, Solicitor-Advocate represented (3) Shoaib Khan, Tariq ur Rehman and Abdul Wahab Khan in this 3 weeks appeal trial pro bono. On 28 May 2010, both students wrote to the High Commissioner of Pakistan at London for his assistance in their appeals saying, “Amjad Malik Solicitor-Advocate represented us for last 13 months without charging us a pence and appeared on appeal trial from 9 to 26 March 2010 for 3 weeks appeal trial. His firm paid arranged video conferencing service for 3 hours to allow us to record statements”. But now we need your assistance, he further wrote, “ We wish to appeal and we have 10 days to appeal on legal grounds to Court of Appeal but we do not have any funds to finance Barrister’s costs for drafting grounds and or advocacy before court of appeal at Royal Courts of Justice, London. The appeal may be on legal grounds. And estimated hours and Barrister’s cost is in thousands.” He further wrote, “As invited by the Prime Minister we request your office to confirm to bear the cost of the appeal on behalf of Abdul Wahab Khan & Tariq Ur Rehman to challenge this decision. Upon your response, we will speak to Mr. Malik to seek extension of time and a counsel’s opinion in this regard”. Pakistani Govt. officials have refused to assist in this case so that the students may clear their name by appealing and have refused to acknowledge students requests and have advised them to resort to English free legal aid system for legal representations which may not be available for out of country appellant(s). Amjad Malik Solicitor-Advocate Rochdale Links: Shoaib Khan wins his deportation Bid (Judgement 18 May) http://www.siac.tribunals.gov.uk/Documents/outcomes/1_OpenJudgment.pdf PAGES: 16 PARA: 31 & 32 http://www.app.com.pk/en_/index.php?option=com_content&task=view&id=105771&Itemid=2
