Operation Pathway: Special Immigration Appeals Commission judgment 18 May 2010

On 18^th May 2010, the Special Immigration Appeals Commission (SIAC) handed down judgment in the case of two Pakistani nationals. The individuals remain in the UK following their arrests in April 2009 under the Terrorism Act as part of Operation Pathway. The judgment also concerned three individuals who returned voluntarily to Pakistan in the summer of 2009 following their arrests in April 2009 as part of the same operation.

This factsheet is intended to explain today’s judgment and provide some background to the operation.

Today’s Judgment

SIAC ruled today that the two individuals in the UK, Abid Naseer and Ahmad Faraz Khan, were engaged in terrorist activity and do pose a threat to national security. The Court said ‘we are satisfied that Naseer was an Al Qa’ida operative who posed and still poses a serious threat to the national security of the United Kingdon’ and said that Faraz Khan ‘can safely be taken to have been willing to participate in Naseer’s plan’. But the Court also said that we can not deport them to Pakistan because of the Court’s concerns that there were not sufficient safeguards against mistreatment on their return. They will therefore remain in the UK.

Protecting the public is the Government’s top priority. The Government is obliged to release the two individuals from immigration detention and immigration bail, but has put in place all necessary measures to ensure public safety.

The Court also ruled that two of the three individuals in Pakistan, Abdul Wahab Khan and Tariq Ur Rehman, should have their leave curtailed and be excluded from the UK on national security grounds, but that the third individual, Shoaib Khan, should not be excluded on national security grounds.

This means that Shoaib Khan can re-apply for leave to enter the UK, but the Court has agreed that Abdul Wahab Khan and Tariq Ur Rehman pose a threat to national security and cannot re-enter the UK.

Government Reaction

Following the verdict the Home Secretary said:

“Protecting the public is the Government’s top priority. We are disappointed that the court has ruled that Abid Naseer and Ahmad Faraz Khan should not be deported to Pakistan, which we were seeking on national security grounds. As the court agreed, they are a security risk to the UK. We are now taking all possible measures to ensure they do not engage in terrorist activity.”

The Government believes the threat to the UK comes from a small minority and is working to build strong partnerships both with communities in the UK and abroad to tackle this threat. The Govt is committed to working with all communities to deal with violent extremism in all its forms and remains absolutely committed to the safeguarding of civil liberties.

Operation Pathway arrests

• In total, 12 individuals were arrested in April 2009 in the North West of the UK.

• These arrests, like any other, were made on the basis of police operational intelligence that indicated that there was an imminent threat to the public.

• One individual was released from police custody soon after as he was found not to be involved terrorist activity.

• The UK’s preference is to prosecute suspected terrorists in a criminal court but this is not always possible. For instance, some evidence cannot be relied upon in criminal trials because disclosing this evidence would damage national security, or put the source at risk.

• Eleven individuals were held for 14 days under the Terrorism Act 2000 and at the end of that time the Crown Prosecution Service advised there was insufficient evidence to press charges on criminal grounds or to continue to hold them in police custody. One was a joint UK/Afghan national and was subsequently released and remains in the UK.

• Ten individuals of Pakistani nationality were transferred into immigration custody. They were still assessed to pose a real and serious threat to the UK’s security (a view upheld by the independent Court today), so the Government decided to take deportation action against them.

• Eight of these ten individuals returned to Pakistan voluntarily. Two remained in the UK and sought to contest the attempt to deport them. Three others who returned to Pakistan and who had their leave to remain in the UK cancelled and were excluded sought to contest those decisions. The judgement concerns all five cases.

SIAC

The Special Immigration Appeals Commission (SIAC) is an independent court which hears appeals against immigration decisions involving national security. An individual is able to appeal to SIAC a relevant decision, such as the decision to deport them or to cancel their leave where the reason for the cancellation is because the Home Secretary has directed their exclusion from the UK. This Court decides whether the Home Secretary was justified in concluding that intelligence material indicates that an individual’s continued presence in the UK would be potentially harmful to UK national security. It also considers, in deportation cases, whether a person can be safely returned to a foreign state in accordance with their rights under the Human Rights Act 1998. It then decides whether deportation or cancellation of leave on the grounds exclusion can take place.

UK-Pakistan Relationship

There are some 12,000 Pakistani students studying in the UK and they are welcome here. The million strong Pakistan community based in Britain also plays a big role in contributing to the prosperity and development of the UK. They share the desire to defeat terrorism and deal with those who threaten us all. Millions of Muslims across the UK live in freedom to practice their religion free from interference or intimidation, and the Government is committed to ensuring this continues.

Despite facing serious challenges, the Pakistani Government has made some progress on improving the human rights situation in the country. However, serious concerns remain, as the Court’s ruling today shows. The Government continues to urge Pakistan to fully guarantee the fundamental rights of all Pakistani citizens, as laid down in the Pakistani Constitution.

Lord Carlile’s report on Operation Pathway

Lord Carlile, the independent reviewer of counter-terrorism legislation, published a report in October 2009 on the operation. The report covers the period from when the 12 original individuals were arrested under the Terrorism Act 2000 until the release of the last individuals from police custody into immigration detention.

Lord Carlile’s report concluded that the arrests were made on the basis of the intelligence assessment and in the interests of public safety, and highlighted that public safety was paramount in the police’s decision to arrest those suspected of terrorist activity. He maintained that the way in which the arrests were carried out was correct.