Control Orders
BG v Secretary of State for the Home Department [2011] EWHC 1478 (Admin)
This High Court case was heard on 13th June 2011 on appeal from the Special Immigration Appeals Commission (SIAC). The case concerned a challenge of the second renewal of a non-derogating control order under S. 10 of the Prevention of Terrorism Act 2005.
In dismissing the appeal, it was held that, the function of the court on an appeal against the renewal of a non-derogating control order was not to determine whether the earlier decision under S. 2 (1) was flawed on judicial review grounds. Further, evidence was not admissible in a renewal hearing where it was sought to be adduced for that purpose. In the present case, Mr Justice Ouseley found that on the evidence, the control order continued to be necessary to protect the public from a risk of terrorism.
The facts of the case
The appellant was a British Citizen of Pakistani origin who had a control order imposed on him by the Secretary of State (hereinafter ‘the respondent’). The appellant was suspected of involvement in terrorist activity and was duly prevented from travelling to Pakistan on 18th March 2009. Six days later, a Control Order was served on him by virtue of S. 2(1) of the Prevention of Terrorism Act 2005. The power to make such an Order arises where the Secretary of State has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity and considers it is necessary for the protection of public safety.
The appellant submitted that the Order was no longer necessary even if it could ever be said to be justified and the effect of the conditions contained within Order, though reduced was still disproportionate to the risk or to the impact on the appellant and his family. At the forefront of the appeal was also the issue of whether evidence relating to the appellant was admissible.
Determination of Key Issues
Evidence
The appellant submitted that evidence that had been given at the initial hearing resulting in his acquittal should have been admitted at the appeal as it would show that the order against him should not have been made or should not have been renewed. Conversely, the respondent submitted that such evidence should have been ignored.
It was subsequently stated by Mr Justice Ouseley that evidence is not admissible for the purpose of showing that the original decisions were flawed. It would be ‘illogical’ for evidence to be admissible when it only undermines a finding made on the original Order, but is to be excluded when it shows that the original Order decisions were flawed.
The function of the Court
The judge also referred to the case of Secretary of State for the Home Department v AF (No 2) [2008] EWCA Civ 117 where it was stated “The function of the court on an appeal against the renewal of a non-derogating control order or on an appeal against a decision not to revoke such an order, is to determine whether either or both of the decisions of the Secretary of State was flawed”. The High Court judge in this case concluded that a court exercising the powers under S. 10(4) of the Prevention of Terrorism Act 2005 must satisfy itself that decisions taken under S. 2(6) of the 2005 Act are not flawed, as at the date of renewal and presently.
Nevertheless it was clearly noted that the contrast in language between the provisions of the Prevention of Terrorism Act 2005 meant that it was not a part of the court’s role on a S. 10(4) hearing to determine whether the original decision was then or is now flawed.
The need for continuation of the Order
The conditions contained in the Order restricted where the appellant lived, where he could travel, his contacts and to some extent his means of communication. The Security Service assessed that the Order’s renewal was necessary to provide control over the appellant’s activities to reduce the risk he posed to the public and to restrict the opportunities to engage in terrorist-related activities. It was also necessary to restrict his ability to travel overseas to engage in terrorist related activity and to restrict his contact with extremist associates. The judge accordingly accepted that the decision to maintain the Control Order which was necessary to protect the public was not flawed on judicial review grounds.
The appeal was subsequently dismissed.
June 2011
Reports are claiming that the Immigration Minister Damian Green has, following his recent visit to Pakistan with Baroness Warsi, announced a new visa policy for Pakistan whereby visas will be granted within eight to ten days.
It is said that the Minister stated that the UK sought the brightest and best Pakistanis to come to the UK as well as facilitating Pakistani nationals and businessmen. It is proclaimed that business visas would be issued within five days. It must be noted that the Minister clearly stated that illegal immigrants in the UK will not be tolerated and such persons would be at risk of strict action being brought against them.
Furthermore, the Pakistani Interior Minister Rehan Malik has announced that a ‘special cell’ has been set up with the co-operation of the Police, Federal Investigation Agency and Cost Guard in order to attend to complaints from Pakistanis based in the United Kingdom. Complaints will be registered through email or telephone and will be dealt with accordingly. Well- trained staff members will register complaints against illegal migrants, forced marriages, drug peddlers and land related issued of UK based Pakistanis. He went on to state that the Government was working towards providing secure and encouraging environment for overseas Pakistanis.
Moreover, he stated that efforts are made with countries such as Iran and Turkey in order to work jointly to prevent and capture gangs of agents who send people overseas in illegal ways, the fundamental area being the border between Pakistan and Iran where agents seem to base themselves.
Case Law update
SA (political activist – internal relocation) Iran [2011] UKUT 30 (IAC)
This is an Upper Tribunal case heard on 11th November 2010 at Field House. The appellant is Pakistani national who claimed asylum on the basis that his life would be at risk if returned to Pakistan. The appellant feared persecution from an opposition party known as the Pakistan People’s Party (PPP). The appellant claimed that following the fall of President Musharaf in 2008, political tensions heightened particularly in his local area and that he and his brother were targeted. The appellant claimed that he and his family members received threats even when he moved to Islamabad. His asylum claim was refused by the Secretary of State for the Home Department and the appellant appealed against the decision. His asylum appeal was refused by the First Tier Tribunal and permission to appeal was subsequently granted. The case came before the current Tribunal.
At his initial hearing, the Immigration Judge whilst accepting that the appellant was a credible witness, went on to perversely conclude that the appellant would have sufficiency of protection from the police authorities and was therefore, not at risk on return. Alternatively, the Immigration Judge deemed that there would be a viable option of internal relocation. The appellant argued that the Immigration Judge erred in his decision in that he failed to take into consideration the police authorities’ treatment of him in the past and their failure to act on attacks on the appellant.
The Upper Tribunal went on to consider the legal framework namely; Regulation 4 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (implementing article 7 of the Qualification Directive 2004/83/EC). This deals with actors of persecution and reflects the decision in the leading case of Horvath v Secretary of State for the Home Department (2001) 1 AC 489 which provided that what was important was the availability of a system and the willingness of the authorities to implement that system.
The Tribunal found that the Immigration Judge had made an error of law in the treatment of sufficiency of protection and in his treatment of the appellant’s political profile. The Judge failed to properly consider the threats on the appellant and his family whilst he was living in Islamabad where he moved to in order to avoid persecution.
The Tribunal concluded that to require the appellant to live away from his home area in order to avoid persecution was not a proper reading of the internal relocation principal. Reference was made to Nolan J in R v Immigration Appeal Tribunal ex p. Jonah [1985] Imm AR 7. The Tribunal concluded that it could not, since October 2006, be in accordance with paragraph 3390 of the Immigration Rules (Article 8 of the Qualification Directive). The Tribunal made reference to the decision of the Supreme Court in the case of HJ (Iran) [2010] UKSC 31 which recognised that persons should not have to act contrary to their normal behaviour in order to avoid persecution. The only was the appellant could return to and live in Pakistan would be in hiding or in political exile.
Accordingly, The Tribunal set aside the decision of the first judge and allowed the appellant’s appeal.
January 2011
The validity of new Nikkah Khuwani certificates for entry clearance purposes
The UK Border Agency operation at the British High Commission in Islamabad has carried out an investigation into the Nikkah Khuwanu certificates being issued in AJK with the regional Ministry of Religious affairs and has confirmed that genuine certificates and Nikkah Nama forms will be accepted as evidence of marriage in spousal visa applications. Visa applicants previously refused on the basis that the certificates were not admissable as evidence can appeal against that decision. The appeal must be submitted to the UK Border Agency in London directly at the below address: UK Visa Section, 7th Floor Apollo House, Croydon CR9 3RR.
5th January 2010
Pakistani migrants unable to enter the UK due to visa delays
Thousands of Pakistani migrants have been unable to enter the UK due to the delay in processing visas. In particular, students have been adversely affected as the delay has meant that they are unable to attend courses that have already commenced in the UK as they are told by sponsors that they can no longer keep a place for them. Similarly, the students are unable to enrol at Colleges or Universities in Pakistan, again for the same reason that it is now too late. The National Union of Pakistani Students has spoken about the difficulties suffered by genuine students and the BBC has reported that over 5000 students are waiting for their student visas to be processed.
The Home Secretary has confirmed that visa processing times are trying to be reduced however, in the meantime, the delays continue.
29 October 2009
Pakistan visa service update
Home Secretary Alan Johnson recently assured the Pakistani authorities that the Home Office are working to provide a more efficient service to Pakistani nationals on his last visit to the Country. He acknowledged the problems suffered over the summer due to IT problems and announced that the Home Office is working to reduce visa waiting times. The offices in Islamabad expect that visa processing times will be reduced to 15 days from November this year in accordance with customer service standards.
8th October 2009