Justice Miting has handed down the judgemnet in the case of ‘Pathway’ on Tuesday 18th May 2010 at 09.30 am in Court No 1, Field House. Shoaib khan Wins his appeal
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.
Background: 10 Pakistani national students (currently 2 in UK and 8 in Pakistan were arrested and considred a threat to national security and 5 are fighting for justice in UK to clear their names. They were being deported on grounds of posing threat to national security of UK as being concerned in islamic extremist activities and for the reason that they were investigated under terrorism Act 2000 since 8 april 2009. Though no charges were brought under criminal proceedings and on 21 April, they were released from criminal invetigation to UK by Greater Manchester Police for lack of evidence. Rather than releasing they were handed over to Border Agency who initiated immigration deportation proceedings. There were reports that their arrests came into being due to a leak document of operation and or a tip of from pakistan, the allegation which was vehemently denied by the pak Govt.Gordon Brown claimed to have foiled a plot of international terrorists on the eve of 8 April 2009, and media highlighted them as a gang of big terrorist. On 21 April 2009, The Secretary of State has deems it to be conducive to the public good to make a deportation order against the above named. She has decided to make an order against him by virtue of Section 3(5)a of the Immigration Act 1971.
They were appealing on the grounds that they are being discriminated being Pakistani nationals and Muslims; and That it would be against appellant’s rights under ECHR for UK to remove, cancel or curtail leave, deport or issue exclusion orders to and from United Kingdom under the European Convention on Human Rights 1950 (Art.3,5,6, 8,9,10,14); That allegation of involving ‘Islamic extremist activity’ is vague and too farfetched and requires a definition by courts as to what is classed as ‘Islamic Extremist activity’ as to some reading prayer, fasting, keeping a beard, going on Blogs, sharing flat, arranging meals could be an Islamic extremist activity if all of them belong to same faith and or geographical area. To the appellants it’s stereotyping and islamophobia when no charges were made, no explosives found and no convincing evidence supportive of the charges was found by Crown Prosecution Service.
Traiq ur Rehman left for Pakistan in June 2009 withdrawing his appeals, upon first refusal of bail in May 2009. 2 other detainees Janas khan and Sultan Sher were released on 17 July 2009 where home secretary withdrew their intention to deportat oredrs. They left for Pakistan too after their visas were curtailed and they exhausted all avenues. Abdul Wahab Khan and Shoaib khan also left volunatrily but were issued curtailment of visas and exclusion order(s) on national security grounds ON 18 December 2009, which they are appealing. Umar Farooq, Rizwan Sharif, Mohammed Ramzan also left for Pakistan voluntarily between sept-dec 2009 withdrawing tehir appeals. Abid Naseer & Ahmed faraz Khan are in detention since 8 April 2009 fighting to clear their names. Ahmed Faraz khan was released on bail in March 2010 with conditions.
Special Immigration Appeals Commission is a specialist tribunal adjudicating appeals where a person is considered to be a threat to national security. Most of the proceedings are conducted in camera for which Attorney General of UK appoints Special Advocates to protect the interest of the accused in secret session where all the secret evidence is presented and analysed.
Appeals were heard on daily basis for 3 weeks (9-26 march) and judgement was awarded on 18 May. Appeal of Shoaib Khan is allowed and all others lost their appeals except Abid Naseer and Ahmed Faraz khan may not be sent to Pakistan due to fears of torture (Article 3) reasons as no assurances have been obtained from Pakistan.
Judgement: -
Mr. Justice Mitting wrote:-
On Paragraph 9, “For reasons which are wholly set out in the closed judgment, we
are sure – satisfied to the criminal standard – that the user of the sana_pakhtana
account was an Al Qaeda associate”.
On Para 14, “We reject Naseer’s explanations for the terms of the emails, in particular the reference to four named women and the whole of his explanation for the email of 3 April, as utterly implausible”. Further, “We are sure that that email conveyed a sinister and alarming message to an Al Qaeda associate”.
On Para 15, “The Security Service assesses that the references to, and comments upon, the four named women in the December emails, are references to different ingredients of explosives, their properties and availability. For the reasons which are wholly set out in the closed judgment, we are satisfied, on balance of probabilities, that that assessment is right”.
Para 16, “For the reasons stated, we are satisfied that Naseer was an Al Qaeda operative who posed and still poses a serious threat to the national security of the United Kingdom and that, subject to the issue of safety on return, it is conducive to the public good that he should be deported”.
Para 17, “Determination of the threat, if any, posed to national security by the other four appellants depends upon whether or not they were knowing parties to Naseer’s declared intention.
Para 26, “For the reasons set out above, and in the closed judgment, we are satisfied, on balance of probabilities, that Wahab was a committed Islamist extremist and that he and Rehman were knowing participants in Naseer’s plans. Para 27, “Faraz’s case is, in principle, indistinguishable from Wahab’s, for the reasons set out above and in the closed judgment”.
On Para 42, “For the reasons given, the appeals of Wahab and Rehman are
dismissed”.
On Para 37, “For that reason, we allow Naseer’s appeal on the issue of safety on
return. We can, at present, see no ground for distinguishing the case of Faraz and,
therefore, on the same ground, allow his appeal”.
3 April 2009 email is vital in this context which is in public domain and is referred by Govt in their open case and in Lord Carlyle’s report, as linked below:
Lord Carlyle’s Report on (Operation pathway) as is enclosed says at paragraph 2.1 as following:
“21. The email read:
Hi Buddy
I am sure my email will find you in good health and all your family members are enjoying them self.
I am doing well as usual and having good time. The weather is getting warmer here and
we have loads of things to enjoy. You know
how is it over here when its summer. People
out to the beaches and going on holidays. Well
we had some short trips to riverside as well.
My mates are well and yes my affair with
Nadia is soon turning in to family life. I met
with Nadia family and we both parties have
agreed to conduct the Nikkah after 15th and
before 20th of this month. I have confirmed
the dates from them and they said you should
be ready between these dates. I am delighted
that they have strong family values and we
will have many guests attending the party. I
am sure Nadia was the right choice for me
at this time because I was getting older day
by day LOL. Anyways I wished you could be
here as well to enjoy the party. That’s all from
here, nothing new to write down. Pay my love
to Hassan and regards to all your family
members.
Thanks
Kind regards
The word Nikkah refers to an Islamic
ceremony, compatible with a wedding,
although not necessarily involving a civil
marriage ceremony”.
This email was sent on 3 April 2009 from humaonion@yahoo.com at the time of 16:19:23 (Abid Naseer) to (Pakistani contact Suhaib) at sana_pakhtana@yahoo.com.
There is an allegation that this email is a coded message. The ‘nikah’, the name of the bride and the date is allegedly a message for an explosive activity in UK. Though appellants have denied any wrong doing and the girl has given evidence in court confirming her identity, proposed marriage, and contact with the name (Abid Naseer).
Gordon Brown claimed to have foiled a plot of international terrorists on the eve of 8 April 2009, and media highlighted them as a Group of big terrorists. We say that British PM may not have remarked without the British intelligence in put and assessment on the case. Similarly, Pakistani PM contested those claims and remarked in a national address that these students are innocent and he may not have passed these remarks without the Pak intelligence assessment at that time. Pak Govt. refused to give any assurances and in fact, vowed to investigate if any wrong doing at British level is proved and or brought to surface.
It is our case that one email sender was in UK and one sender recipient in Pakistan, so both countries, its executive, and its intelligence sections hold half of the picture of this case.
Mail on Line in their story dated 11 April 2009 titled, ‘revealed: Terror suspects in ‘Easter bomb plot’ worked at Manchester airport commented that , “ the alleged links to Mumbai terror cell emerged from Pakistani intelligence sources, who claim to have supplied some of the suspect’s names to Britain in the first place.” Same concern were raised by member European Parliament representing Northwest of England at a Oxford conference on 27 February 2010 on student case and issues where Minister political was present, that these arrests may have been made on Pakistani tip off, which has so far been denied by Pak authorities.
Shoaib’s Judgement:-
Facts about the case were described at para 5:-“
“Shoaib Khan is a 31 year old Pakistani national. He entered the United Kingdom in 2005
on a student visa valid until 25 August 2006, to study at Middlesex College. On 9 September 2006 he was granted further leave to remain until 31 October 2007, to study accountancy at Kaplan in Manchester. He was granted two further extensions to his visa, expiring on 31 January 2010. He made three visits to Pakistan – in December 2007, March 2008 and December 2008. He was arrested on 8 April 2009 and a notice of intention to deport on conducive grounds was served on him on 22 April. He left for Pakistan on 21 August 2009, whereupon the notice of intention to deport was withdrawn. On 18 December 2009 his leave to remain was cancelled under article 13(7)(b) of the Immigration (Leave to Enter and Remain) Order 2000 on the ground that his presence in the United Kingdom would not be conducive to the public good for reasons of national security. He appeals against that decision”.
Mr. Justice Miting concluded in Shoaib’s case by saying, “
“Shoaib is in a different position. He is from a settled area of Pakistan, not the troubled North West. He did not know any of the other four appellants before he arrived in the United Kingdom in 2005. He does not speak their first language. He did not attend or claim to attend the Manchester College of Professional Studies: he was a genuine student of Accountancy at a reputable college. Nothing in the manner in which he gave his evidence caused us to doubt that he was telling the truth: he answered questions in a calm and straight forward way and did not (like Faraz) bluster or (like Wahab and Rehman) prevaricate. There is nothing necessarily suspect about the first three occasions on which he met Naseer. He volunteered the first (in Ramadan 2008 – we do not regard it as suspect that he put his first meeting with a man who was no more than an acquaintance somewhat later when interviewed by the police). His attendance at the party on 23 March gives rise to no greater suspicion than that of other individuals who attended and are not now the object of suspicion. His arrival at 51 Cedar Grove on 4 April 2009 is explained by his returning from the cricket match in which both he and Wahab played. Only the drive to the Wirral on 5 April gives rise to real grounds for suspicion – which is capable of being dispelled by the difference in first language between him and the other three. We accept that the police had reasonable grounds to arrest him on 8 April and that the Security Service reasonably suspected that he was a knowing party to Naseer’s plans. We are, however, satisfied on balance of probabilities, on the basis of the open and closed material, that Shoaib was not a knowing party to his plans and that the grounds for suspicion that he was have largely been dispelled and do not now reach the threshold of reasonable suspicion. Even if we were to adopt a less stringent test in relation to proof of past events than the balance of probabilities, we would not have determined that it is conducive to the public good for reasons of national security that he should be excluded from the United Kingdom. We accordingly allow his appeal. It would not be appropriate for us to give directions under section 87 Nationality, Immigration and Asylum Act 2002. It is for the Secretary of State to determine what should be done in the light of our judgment”.
Now shoaib’s case will be considered by Home Secretary for a fresh visa and entry to UK.
Students Lawyer Amjad Malik said that its a beauty of British Justice System that Shoaib Khan was able to get justice, and we need to see now how is put back to the position where he was on the day of arrest on 8 April, and is compensated for his lost of year of study, tuition fees, academic year and humiliation with which he has to go through for months. On the issue of other appellants, we will endeavour to secure the same for other two, we will take instructions from those clients in Pakistan (Wahab & Tariq) on the possibility f appealing the decision to Court of Appeal in England.
Mr J Bennathan QC and Ms S Harrison represented Naseer, Baroness Kennedy QC and Mr E Grieves represented Ahmed Faraz Khan.
Mr R Tam QC, Mr A O’Connor, and Mr S Gray, (instructed by the Treasury Solicitor)
acted for the state in all 5 appeals.
Mr Charles Cory-Wright QC and Mr K Beal acted for Abid Naseer, Mr A McCullough QC and Mr Z Ahmad acted for Ahmed Faraz khan, and Ms C McGahey and Mr B Rawat as the Special Advocates acted for Wahab Khan, Tariq Ur Rehman and Shoaib khan in the closed sessions.
Amjad Malik, Solicitor-Advocate represented (3) namely Shoaib Khan, Tariq ur Rehman and Abdul Wahab Khan in this 3 weeks appeal trial pro bono.
Amjad Malik
Solicitor-Advocate
Rochdale
00 44 1706- 346 111
Fax: 00 44 1706 346 012
Email: AMSolicitors@aol.com
18 May 2010
SIAC address and contacts:
Tel: 0845-6000877.
Nearest tube station Holborn (on Piccadilly line )
& Chancery Lane (on Central Line)
Link to the full judgment at SIAC Website:
http://www.siac.tribunals.gov.uk
http://www.siac.tribunals.gov.uk/outcomes2007onwards.htm
