Al Jedda v. Secretary of State for the Home Department

The principal issues are:

(i) did the decision breach the Appellant s Article 3 ECHR rights?

Mr Justice Mitting:

[31] Miss Williams submits that the decision to deprive the Appellant of his citizenship made and notified to him on 14th December 2007 subjected him to a real risk of torture or inhuman or degrading treatment or punishment contrary to Article 3. It is common ground that the Appellant was, at the date when the decision was made, entitled, as against the United Kingdom, to the benefit of the rights conferred on him by the Convention. So much was also common ground in the proceedings which culminated in the decision of the House of Lords in R(Al Jedda) v Secretary of State for Defence [2008] 1 AC 332, subject to the overriding effect of the obligations of the United Kingdom
pursuant to UN SCR 1546. Accordingly, if, in making and carrying into effect the deprivation decision, the Secretary of State acted in a way which was incompatible with Article 3, her decision would have been unlawful under section 6(1) Human Rights Act 1998. Miss Williams submits that the lawfulness of the decision is to be judged at the date when it was made and put into effect i.e. on 14th December 2007. We accept that submission, which
accords with the practice and jurisprudence of the Strasbourg Court. In Saadi v Italy 37201/06 28th February 2008, the Grand Chamber stated in paragraph
133:
With regard to the material date, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the contracting state at the time of expulsion. However, if the applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court."

34. The Appellant also claims that he would be at risk of arrest and ill treatment by the Iraqi authorities. We accept that it is possible that he left Iraq for Turkey at least in part because he feared arrest and prosecution by the Iraqi authorities. We do not know what, if any, information they have about him; but such little evidence as he has provided about the issue suggests that they have no interest in him: in paragraph 5 of his witness statement dated 15th May 2008 (but, surprisingly, not produced at the hearing of the preliminary issue to which it relates), he states that his brother-in-law went to the Citizenship and Immigration Office in Kirkuk (the reference to Baghdad was a mistake) to inquire whether it was possible for him to obtain Iraqi identification. He was told that it was not, because he had lost his Iraqi citizenship. After that conversation, the Iraqi Intelligence Services stopped questioning his family about him. There is no doubt that the Iraq authorities were aware of his existence, because six representatives of Iraqi central government sat on the committee which recommended his release from detention in December 2007. Accordingly, if the Appellant did fear arrest by the Iraqi authorities, there is no evidence or information to substantiate that fear, even to the low level of proof applicable in asylum/humanitarian protection/human rights cases.

ii) did that decision breach the Article 8 ECHR rights of the Appellant and his family?

[24] Unsurprisingly, the upheavals of the last eight and a half years have had a significant and adverse impact on the four eldest children. There are medical reports from Dr Meltem Kora on K, Hm and Hn dated 10th October 2008. There is no report on A, because he was then and is now in Syria. Dr Kora is of the opinion that all three suffer from chronic post traumatic stress disorder, that K and Hm suffer from depression and that Hm and Hn suffer from anxiety disorder. The terrifying circumstances, personally experienced by them, in which their father was arrested on 10th October 2004 and the frightening journey made by K to see her father in detention in 2007 played a significant part. We have little doubt that A, whose behaviour at school was disruptive, would be found to suffer from similar conditions as his brother and sisters do if he were to be medically examined; and that Dr Kora s identification of the paramount remedy would be the same. She expressed it in identical words (which do not lose their force because they are identical) in her three reports:

"The restoration of a family life in London is crucial factor for her/his psychological improvement. In the case the restoration of the family is impossible, the prognosis for adopting appropriate coping skills will be poor and her/his risks for continuing traumatic symptoms and restricted personality development will be reinforced."

[25] There are two problems with Dr Kora s remedy: there is no family life in London to restore, save for that between the four children and their mother as the summary set out in paragraph 1 above makes clear, this part of the Appellant s family has not enjoyed family life with him in London for more than short periods since July 2000; and if the Appellant were to return to the United Kingdom, he would, in the light of the Secretary of State s assessment and the Commission s findings about the risk which he poses to national security, inevitably be subjected to a stringent control order. In all probability, it would require him to live away from London (to separate him from his former associates), to be subjected to a lengthy curfew, most likely of sixteen hours, and to have his ability to work and invite visitors to his home significantly restricted. The circumstances postulated by Dr Kora would not occur, for good reason. Accordingly, the contention that the restoration of British citizenship to the Appellant would resolve, or at least go a long way to resolving, the personal and family problems experienced by his four eldest children, is unsound. All that can be concluded is that the restoration of his right to live in and come and go from the United Kingdom would make contact between the four children and their divorced parents easier, especially if they were to return to the United Kingdom. Given the already disrupted family history and the Appellant s extensive and prolonged travels in the Middle East whilst still a British citizen, it is far from certain that he and they would do so, especially if a rigorous control order were to be imposed upon him.

iii) should the Secretary of State's decision that it is conducive to the public good to deprive the Appellant of his citizenship be upheld?

[8]. In appeals to the Commission, the scheme is described in detail in the Judgment of Lord Woolf MR in Home Secretary v Rehman [2003] 1 AC 153 paras. 4 16 and in Secretary of State for the Home Department v M [2004] 2 AER 863 paragraphs 6 to 16. The constitution and the procedures of the Commission have been established to permit an exhaustive enquiry to be made into the Secretary of State s reasons for making decisions about national security and related issues. Hence, its ability to receive evidence and information in closed session, the provision for Special Advocates and the presence in an appeal panel of a person with long practical experience of national security matters. Thus equipped, it is unsurprising that Lord Woolf observed at [2004] 2 AER 863 page 868 para. 15 that SIAC s task is not to review or second guess the decision of the Secretary of State but to come to its own judgment in respect of the issue identified in section 25 of the 2001 Act (now repealed) (i.e. to consider if (a) there are no reasonable grounds for a belief or suspicion that a person s presence in the United Kingdom is a threat to national security and for a suspicion that he is a terrorist or (b) that for some other reason the Secretary of State s certificate should not have been issued). The Commission has, by now, accumulated considerable experience in determining what individuals, assessed to have undertaken activities inimical to the national security of the United Kingdom, have in fact done and in assessing the future threat which they may or may not pose to it. Great weight is always given to the assessment of the Secretary of State or, more particularly, of her security advisers; but the Commission has not felt inhibited from differing from their assessment if persuaded that it is wrong; and it has never been suggested on behalf of the Secretary of State that it cannot, as a matter of principle, do so. We readily accept and routinely apply the observation of Lord Slynn at [2003] 1 AC 184 para. 26 that the Commission must give due weight to the assessment and conclusions of the Secretary of State in the light at any particular time of his responsibilities, or of government policy and the means at his disposal of being informed of and understanding the problems involved. Once the error in SIAC s approach in Rehman to the issue of national security was corrected, there has never been any live issue about the Secretary of State s assessment of what national security in general requires and only rarely any issue about whether or not particular actions by an appellant threaten it. The principal issues on national security are invariably: what has an appellant done?; and what inference can be drawn from his past actions and current capacity and beliefs about the threat, if any, which he poses to national security?. These are matters of individual assessment, which the Commission is particularly well placed to make. Indeed, its procedures almost certainly ensure that the case of an individual appellant is subjected to greater scrutiny than could be given to it by the Secretary of State. We are, accordingly, uncomfortable with a hybrid approach which imposes constraints of uncertain extent upon our ability to determine an appeal on the facts found and assessments made by us.

[16] Our consideration of the Secretary of State s assessment has focussed upon the grounds set out in the third and fourth indented paragraphs. We have approached our task on the basis that if we are satisfied on balance of probabilities that either or both grounds are substantially made out subject to the Articles 8 and 3 claims, the Secretary of State s assessment that it is conducive to the public good that the Appellant should be deprived of his British citizenship must be upheld.

[20] Miss Williams submits that the decision to release the Appellant from detention in Iraq on 30th December 2007 demonstrates that, by then, he no longer posed a threat to national security. We do not accept this submission. He was detained pursuant to the powers conferred by United Nations Security Council Resolution 1546 which authorised the occupying powers to detain an individual on the ground that to do so was necessary for imperative reasons of security in Iraq. Unsurprisingly, the threshold was set high: the individual would be held without trial and for an indefinite period. The fact that it was decided in November 2007 that it was no longer necessary to detain the Appellant for imperative reasons of security in Iraq does not mean that he had ceased to pose any threat to the national security of the United Kingdom, in the wide sense given to that phrase in Rehman. The two tests, like the consequences of applying them, are different.