FOURTH SECTION
DECISION
Application no. 11987/11
Abdul Wahab KHAN
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 28 January 2014 as a Chamber composed of:
Ineta Ziemele, President,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Paul Mahoney,
Robert Spano, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 14 February 2011,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Abdul Wahab Khan, is a Pakistani national, who was born in 1983 and lives in Tank, Pakistan. He was represented before the Court by Mr A. Malik, a lawyer practising in Rochdale.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant came to the United Kingdom in October 2006 on a student visa sponsored by Liverpool John Moores University. His leave to remain was extended until 31 December 2009. He did not immediately undertake his course but, by April 2009, was at the same university studying computer network security.
4. On 8 April 2009 he was one of five Pakistani nationals, (the others being Abid Naseer, Ahmad Faraz Khan, Tariq Ur Rehman and Shoaib Khan) who were arrested on suspicion of conspiracy to carry out a mass‑casualty attack in north-west England later that month. The men were released by the police without charge but served by the Secretary of State for the Home Department with a notice of intention to deport them. They were taken into immigration detention.
5. The applicant voluntarily left the United Kingdom on 21 August 2009 whereupon the notice of intention to deport was withdrawn. He maintains that, on arrival in Pakistan he was interviewed, photographed and fingerprinted. He was released on bail but placed under surveillance. Although certain of the other men have been the subject of extradition requests by the United States, no such request has been made in his case.
6. On 18 December 2009, he was notified of the Secretary of State’s decision to cancel his leave to remain in the United Kingdom, on the grounds that his presence would not be conducive to the public good for reasons of national security. The letter informing the applicant of this decision also informed him that he was judged to be involved in Islamist extremist activity. It also informed him that the Secretary of State had certified that the decision had been taken on grounds of national security, with the consequence that the applicant’s appeal would be heard by the Special Immigration Appeals Commission (SIAC).
7. Mr Rehman and Mr Shoaib Khan also left the United Kingdom for Pakistan (in their cases on 10 June and 21 August 2009) and, like the applicant, their leave to remain was cancelled by the Secretary of State. They too appealed against that decision. The remaining two men, Mr Naseer and Mr Ahmad Faraz Khan, stayed in the United Kingdom whence they appealed against their attempted deportation.
8. The five men’s appeals were heard together by SIAC between 9 and 26 March 2010. In those parts of the hearing where the Secretary of State sought to rely on evidence which was not disclosed to the five men (so‑called “closed material”), they were represented by special advocates who had access to the material and remained in the hearing.
9. SIAC delivered open and closed judgments on 18 May 2010. The open judgment first considered the national security case against the five men. It recorded that the Secretary of State’s case was that each of the men was party to the mass-casualty attack plot. The “open” case against them was founded upon a series of emails exchanged between a Pakistani registered email account and an account admitted to have been used by Mr Naseer. The Security Service assessed the user of the Pakistani account to be an al’Qaeda associate and the emails to have described different ingredients for explosives, the operatives who were to carry out the attack, and the intention of Mr Naseer and the others to carry out the attack in late April 2009. These references were alleged to have been woven into a series of coded expressions referring, in seemingly innocuous terms, to relationships between Mr Naseer and a series of women and, ultimately, his plans for an Islamic wedding with one of the women in late April 2009.
10. The open judgment recorded that, for reasons which were wholly set out in the closed judgment, SIAC was sure – satisfied to the criminal standard of proof – that the user of the Pakistani account was an al’Qaeda operative. It went to state that it rejected Mr Naseer’s explanation for the emails as utterly implausible and, even without the closed material, it would not have accepted it. The explanation was a lie and the last email relating to the Islamic wedding conveyed a sinister and alarming message to the al’Qaeda operative. Instead, for the reasons set out in the closed judgment, the references to the women in the emails were references to explosives, their properties and availability. Although SIAC was unable to determine whether Mr Naseer and his associates would have been able to carry out the attack, that was their intention. SIAC was therefore satisfied that Mr Naseer was an al’Qaeda operative who posed a threat to the national security of the United Kingdom.
11. SIAC then set out the educational and social links between the men, evidence of photographs of a shopping centre taken by Mr Rehman (and taken to be reconnaissance photographs), shared computer use between the men and discrepancies in their accounts. It stated that for these reasons and for those reasons set out in the closed judgment the applicant was a committed Islamist extremist and he, Mr Rehman and Mr Ahmad Faraz Khan were knowing participants in Mr Naseer’s plans. SIAC was, however, satisfied on the balance of probabilities that Mr Shoaib Khan was not a knowing party to Mr Naseer’s plans. Accordingly, it allowed his appeal against the Secretary of State’s finding that it was conducive to the public good that he be excluded from the United Kingdom.
12. SIAC next considered whether there would be a real risk to Abid Naseer and Ahmad Faraz Khan of ill-treatment if they were returned to Pakistan. On the basis of the open and closed evidence before it, SIAC found there was not a sufficient safeguard against such ill-treatment and accordingly allowed their appeals against deportation.
13. Lastly, it turned to the cases of the applicant and Mr Rehman who, as stated above, were already in Pakistan. They had asked SIAC, on Article 3 grounds, for a direction to facilitate entry clearance for them to return to the United Kingdom. They had also asked SIAC, apparently by implication, to allow their appeals against the Secretary of State’s cancellation of their leave to remain in the United Kingdom. SIAC stated that it “unhesitatingly” rejected that submission. With reference to the principles laid down by the Grand Chamber in Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, §§ 59-71, ECHR 2001‑XII, it found:
“40. ... The United Kingdom has no jurisdiction over Pakistani citizens physically present in Pakistan, such as Wahab [the applicant] and Rehman. It cannot secure to them the right not to be subjected to ill-treatment of a kind which, if it occurred within a Convention state, would breach that state’s obligations under Article 3. These facts do not fall into the exceptional circumstances identified by the Court in paragraph 71 of Bankovic.
41. The reasons of fact for rejecting Mr Malik’s [counsel for the applicant and Mr Rehman] proposition are as follows. Wahab and Rehman find themselves in their current predicament because of their own voluntary actions, beginning with their decision to come to the United Kingdom. While here, they participated in events which posed a serious and immediate threat to the national security of the United Kingdom. Despite that, they had the opportunity to appeal against the notice of intention to deport them from the United Kingdom. They could not have been removed while their appeal was pending: section 78 Nationality, Immigration and Asylum Act 2002. They chose to return to Pakistan and to appeal against the immigration decisions subsequently taken, as, of course, is their right. They chose to return in a blaze of publicity and to waive the anonymity which would otherwise have been afforded to them in these proceedings. They complain that they were assured that the notice of intention to deport them would be revoked and that no deportation order would be made if they returned to Pakistan. It was always inevitable that the notice of intention to deport would be withdrawn and no deportation order made when they returned to Pakistan: no-one can be deported who is not here. Further, our understanding of the discussions which preceded their departure is that it was made clear to them that, if they were to return, an immigration decision would then be made against which they would have a right of appeal. That was done. By exercising that right, they inevitably ran the risk that a finding adverse to them would be made on the issue of national security, as it has been. Neither principle nor the facts require SIAC to allow their appeal on Article 3 grounds and direct that their re-entry to the United Kingdom should be facilitated.
42. For the reasons given, the appeals of Wahab [the applicant] and Rehman are dismissed.
14. After been refused leave to appeal by SIAC on 4 June 2010, the applicant appealed against SIAC’s determination to the Court of Appeal. His grounds of appeal included the following:
- that SIAC had failed to define Islamic extremism and failed to give adequate reasons for finding the applicant to be an extremist;
- that SIAC’s procedures breached Article 6; and
- that SIAC had erred in finding that he was outside the jurisdiction for the purposes of Article 3.
15. Permission to appeal was refused on 16 August 2010 by Lord Justice Richards.
There was, in his view, no definitional problem in SIAC’s finding that the applicant was an Islamic extremist. That was based on reasons found in the open and closed judgments; in any event, it was secondary to the crucial finding that the applicant was a knowing participant in Mr Naseer’s plans, which provided an ample basis for the conclusion that the applicant’s presence in the United Kingdom was not conducive to the public good on grounds of national security.
The alleged breach of Article 6 was unarguable on the basis of previous Court of Appeal authority that Article 6 did not apply to deportation proceedings before SIAC (W (Algeria) and Others v. the Secretary of State for the Home Department [2010] EWCA Civ 898, applying this Court’s judgment in Maaouia v. France [GC], no. 39652/98, ECHR 2000‑X). This finding was equally applicable to exclusion proceedings.
Finally, SIAC was plainly correct that the applicant, a Pakistani citizen physically present in Pakistan (and on any view outside the control of the United Kingdom) was not within the jurisdiction of the United Kingdom and that arguments based on Article 3 could not therefore succeed.
16. The applicant renewed his application for permission to appeal at on oral hearing. This was refused on 10 December 2010 by Lord Justice Stanley Burnton. To his Lordship it was quite clear what Islamic extremist meant in the context of a decision to exclude from the United Kingdom on grounds of national security, and thus unnecessary for SIAC to define the term. The reasons for SIAC’s findings were adequately set out in its open and closed judgments. In respect of Article 3 of the Convention, his Lordship emphasised that this was a case where the applicant had returned. If there was a risk to the applicant in Pakistan, that, of itself, was not the responsibility of the United Kingdom under the Convention or the 1951 Refugee Convention.
B. Relevant domestic law and practice
17. For a summary of the relevant domestic law and practice see I.R. and G.T. v. the United Kingdom (dec.), nos. 14876/12 and 63339/12, §§ 28-35, 28 January 2014.
COMPLAINTS
18. The applicant makes the following complaints.
19. First, SIAC’s approach to jurisdiction violated Articles 2 and 3 of the Convention. There was a difference between someone who had never been in the jurisdiction and someone who left and was refused re-entry. The State’s obligations under Article 3 had to be taken into account in making decisions which could have an adverse effect on those concerned, whether in the United Kingdom or abroad.
He relied on the Court’s ruling as to jurisdiction in Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, ECHR 2010 (extracts). He also relied, mutatis mutandis, on the Article 8 positive obligation, in certain circumstances, to admit individuals to a Contracting State, insofar as that obligation had been established in Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, Series A no. 94 and East African Asians v. the United Kingdom, nos. 4403/70 et al., Commission’s report of 14 December 1973, Decisions and Reports 78.
He submitted that, in any case, he had been within SIAC’s jurisdiction throughout the period of his appeal against the cancellation of his leave to remain in the United Kingdom. SIAC had failed to enquire into the help the United Kingdom Government might have sought from Pakistan to facilitate the applicant’s voluntary return. The United Kingdom Government might have sought this help to avoid both their own Article 3 obligations and to avoid requiring written assurances from Pakistan that the applicant would not be ill-treated on return.
It was also relevant that the applicant had returned to Pakistan on the understanding that the deportation order against him would be withdrawn. The subsequent making of an exclusion order on national security grounds increased the risk of ill-treatment to him in Pakistan, a risk SIAC itself had recognised in allowing the appeals of Abid Naseer and Ahmad Faraz Khan.
20. Second, for similar reasons, there was a real risk of a breach of Articles 5 and 6 if he were to be detained and tried in Pakistan.
21. Third, he submitted that his exclusion and the cancellation of his leave to remain were in violation of Article 8, given the strength of his private life in the United Kingdom, which had developed in the course of his studies at university. He had been a respected member of his local community and had complied with the law in his time in the United Kingdom. The Secretary of State had not made the case for his exclusion openly and fairly, meaning he should not have been excluded nor had his student status in the United Kingdom been curtailed. He further argued that there had been a violation of Article 14 of the Convention taken in conjunction with Article 8 because he had been deprived of his right to live and study in the United Kingdom on the basis of his nationality, geographical location and status.
22. Fourth, he maintains that SIAC failed to define Islamic extremism. When no explosive materials had been found by the police and no charges had been brought against the applicant (or any of the other men), there was a risk that Islamic extremism could not be distinguished from normal religious activity. This violated Articles 8, 9, 10 and 14 of the Convention.
23. Finally, he complained that there was a violation of Article 14 taken in conjunction with all of the aforementioned Articles. There had been a difference in treatment because he was a Muslim and Pakistani, and people of other nationalities had not been arrested or subject to criminal investigation during the police counter-terrorism operation in this case.
THE LAW
A. The complaints based on Articles 2, 3, 5 and 6 of the Convention
24. Whether Articles 2, 3, 5 and 6 are engaged in the present case turns on whether, although he is in Pakistan (having returned there voluntarily), the applicant can be said to be “within the jurisdiction” of the United Kingdom for the purposes of Article 1 of the Convention. SIAC and the Court of Appeal, by applying the principles set out in Banković and Others, cited above, found that he was not. There is nothing in this Court’s subsequent case-law, or in the applicant’s submissions, to cast doubt on the approach that SIAC and the Court of Appeal took.
25. A State’s jurisdictional competence under Article 1 is primarily territorial. However, the Court has recognised two principal exceptions to this principle, namely circumstances of “State agent authority and control” and “effective control over an area (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 130-141, ECHR 2011). In the present case, where the applicant has returned voluntarily to Pakistan, neither of the two principal exceptions to territorial jurisdiction apply. This is particularly so when he does not complain about the acts of British diplomatic and consular agents in Pakistan and when he remains free to go about his life in the country without any control by agents of the United Kingdom. He is in a different position, both to the applicants in Al-Saddoon and Mufdhi (who were in British detention in Iraq and thus, until their handover to the Iraqi authorities, were under British authority and control) and to the individuals in Al-Skeini and Others (who had been killed in the course of security operations conduct by British soldiers in South East Iraq).
26. Moreover, and contrary to the applicant’s submission, there is no principled reason to distinguish between, on the one hand, someone who was in the jurisdiction of a Contracting State but voluntarily left that jurisdiction and, on the other, someone who was never in the jurisdiction of that State. Nor is there any support in the Court’s case-law for the applicant’s argument that the State’s obligations under Article 3 require it to take this Article into account when making adverse decisions against individuals, even when those individuals are not within its jurisdiction.
27. There is support in the Court’s case-law for the proposition that the Contracting State’s obligations under Article 8 may, in certain circumstance, require family members to be reunified with their relatives living in that Contracting State. However, that positive obligation rests, in large part, on the fact that one of the family members/applicants is already in the Contracting State and is being prevented from enjoying his or her family life with their relative because that relative has been denied entry to the Contracting State (see, for instance, Abdulaziz, Cabales and Balkandali, cited above). The transposition of that limited Article 8 obligation to Article 3 would, in effect, create an unlimited obligation on Contracting States to allow entry to an individual who might be at real risk of ill-treatment contrary to Article 3, regardless of where in the world that individual might find himself. The same is true for similar risks of detention and trial contrary to Articles 5 and 6 of Convention.
28. Furthermore, and again contrary to the applicant’s submissions, jurisdiction cannot be established simply on the basis of the proceedings before SIAC. The mere fact that the applicant availed himself of his right to appeal against the decision to cancel his leave to remain has no direct bearing on whether his complaints relating to the alleged real risk of his ill-treatment, detention and trial in Pakistan fall within the jurisdiction of the United Kingdom: it is the subject matter of the applicants’ complaints alone that is relevant in this regard (see, mutatis mutandis, Chagos Islanders v. the United Kingdom (dec.), no. 35622/04, § 63, 11 December 2012). For the same reason, SIAC’s alleged failure to enquire as to what help, if any, the United Kingdom Government might have sought from Pakistan is wholly irrelevant to the question of jurisdiction. Finally, the same must also be said for applicant’s submission that his exclusion on national security grounds increased the risk of ill-treatment to him in Pakistan, not least when it was the applicant who voluntarily removed himself from the United Kingdom’s jurisdiction knowing it was almost inevitable that, once he was in Pakistan, he would be excluded from the United Kingdom.
29. It follows from the above reasons that these complaints must be rejected as incompatible with the provisions of the Convention and, as such, inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
B. The applicant’s remaining complaints
30. Insofar as the applicant’s remaining complaints may be regarded as falling within the United Kingdom’s jurisdiction for the purpose of Article 1 of the Convention, the Court considers them to be inadmissible for the reasons given below.
1. The alleged violations of Articles 8 and 14 based on the applicant’s exclusion from the United Kingdom
31. The applicant does not appear to have relied on Article 8 or Article 14 before the domestic courts. In any event, the complaints are manifestly ill-founded.
32. As regards his substantive complaint under Article 8, given the very serious nature of the allegations against him, which were found to be proven by SIAC, and the rather limited nature of his prior private life in the United Kingdom, the decision to exclude him from the United Kingdom was clearly proportionate.
33. Insofar as his general complaint that the Secretary of State had not made out a case for his decision openly and fairly can be characterised as a complaint regarding the procedural requirements of Article 8, in particular in the conduct of the proceedings before SIAC, for the reasons the Court has set out in detail in I.R. and G.T., cited above, §§ 63-65, it is clear that the SIAC procedures as applied in the applicant’s case fulfilled these procedural requirements. A special advocate was appointed to represent his interests in the “closed” proceedings and a detailed “open” judgment was provided (see paragraphs 8-9 above). It is noteworthy that after examination of the allegations against the five appellants in the case, SIAC rejected the Secretary of State’s assertion that one of the appellants (Mr Shoaib Khan) represented a national security risk (see paragraph 11 above). This demonstrates the rigorous scrutiny given by SIAC to such allegations and shows that it can and will reject them if the evidence provided by the Secretary of State is considered insufficient to substantiate them. It is further noteworthy that despite finding national security concerns to have been made out in respect of two of the appellants (Mr Naseer and Mr Faraz Khan), SIAC allowed their appeals against deportation on the basis that, if deported, there was a real risk of ill-treatment contrary to Article 3 of the Convention (see paragraph 12 above). This is further evidence of the ability and readiness of SIAC to ensure that Convention rights are respected.
34. Lastly, although the applicant invokes Article 14, alleging in substance that there was a difference in treatment based on his nationality or other relevant status, the Court find this to be without foundation: the decision to exclude was taken solely on the basis of the Secretary of State’s assessment (upheld by SIAC) that the applicant was involved in Islamist extremist activity.
35. Accordingly, these complaints must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.
2. The alleged violation of Articles 8, 9, 10 and 14 of the Convention based on the failure to define “Islamic extremist”
36. Again, the applicant does not appear to have relied on these Articles before the domestic courts. However, they too are manifestly ill-founded. As Lord Justice Stanley Burnton observed, there can be no doubt as to the meaning of Islamic extremist in this context and, as Lord Justice Richards observed, this was secondary to the crucial finding that the applicant was a knowing participant in Abid Naseer’s plans, which provided an ample basis for the conclusion that the applicant’s presence in the United Kingdom was not conducive to the public good on grounds of national security. Therefore, even assuming an interference with the applicant’s rights under these Articles, any such interference was clearly proportionate.
37. For these reasons, these complaints must also be rejected under Article 35 §§ 3 (a) and 4 of the Convention.
3. Remaining complaints based on Article 14 of the Convention
38. The applicant’s substantive complaints have been found to be either manifestly ill-founded or incompatible with the provisions of the Convention. On the basis of the papers submitted to the Court, there is no appearance of a violation of Article 14 of the Convention. The applicant’s remaining complaints related to this Article must therefore also be rejected under Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-PassosIneta Ziemele
RegistrarPresident
Full & Egal Universal Law Academy