Can Britain be a silent target in retaliation of London activities of exiled fire brand(s)

By: Amjad Malik, MA, LLM

The question which is circulating in every one's minds in London's Pakistani circles is whether we may be under a retaliatory threat due to events developing on and after 12^th May in Karachi which virtually held the city in a siege and for 6 hours the city observed the worst lawlessness which did not spare a popular private channel too. 

On 15 May 2007 Daily Telegraph in London wrote about Altaf Hussain in their title story as 'Running Karachi-from London which said, “the man in charge of Pakistan's largest city, Karachi, was at his usual command-and-control post at the week end, a sofa in north London.' News story further sent shock waves to the readers when it said, “As his fiefdom descended into brutal violence, with the deaths of at least 40 people reported amid the worst political bloodshed Pakistan has witnessed in years, Altaf Hussain directed his followers by telephone from a safe place more than 5,000 miles away. The article in last lines written in Telegraph by Isambard Wilminson and Damien McElroyon 15th May issue in last lines quoted, “When asked why Mr Hussain was not deported to Pakistan before he was granted citizenship, a British diplomat said: "He has not committed a crime on British soil."  The writer does not agree with that comment of a senior diplomat whose name is not given and the comment in question poses a question of critical evaluation o British position under law whether MQM Leader's activities in London which needs full executive scrutiny by Britain in the wake of recent killings in Karachi (Pakistan) on 12^th May 2007 and can he ever be removed from Britain and handed over to Pakistan on account of his activities? The writer is of the view that it is not impossible under law.

If some one was British Citizen he was untouchable prior to Asylum and Immigration Act 2002(s.4) which changed Nationality Act 1981 (s.40) under which Abu Hamza was the first victim whose case was highly publicized and reported  as he was also required by US for his criminal acts and extradition was desired as was reported under [2006] EWCA Crim page 2918. In that case at para 32 of the judgment the court referred a few paragraphs of the comments of  Sir James Stephen in his History of the Criminal Law of England, published in 1883 made the following comments at pages 12-13 (which i feel is relevant to the readers):- "CRIMES COMMITTED ON LAND OUT OF ENGLAND â€" With regard to offences of this class also there is little difficulty. I am not aware of any exception to the rule that crimes committed on land by foreigners out of the United Kingdom are not subject to the criminal law of England, except one furnished by the Merchant Shipping Act of 1854 (17 & 18 Vic, c.104, s.267), noticed below. There may be exceptions in the orders made under the Foreign Jurisdiction Acts. A question of the greatest importance and delicacy is connected with this matter which has never yet been judicially decided, and which, when it occurs, will deserve the most careful consideration. It is this: How far are acts committed abroad, which if committed in England would be crimes, recognised as crimes by the law of England for the purpose of rendering persons in England criminally responsible for steps taken in relation to them, which if taken in relation to crimes committed in England would make them accessories before or after the fact, or which would amount to a conspiracy to commit it? As regards the particular case of murder and incitement to commit murder, the matter is now set at rest by 24 & 25 Vic, c.100, ss 4 and 9. These sections provide in substance that persons who conspire in England to murder foreigners abroad, or in England incite people to commit murders abroad, or become in England accessories (either before or after the fact) to murder or manslaughter committed abroad, shall be in the same position in every respect as if the crime committed abroad had been committed in England."

The issue before us is whether Sir James was correct in his analysis of the 1861 Act and can someone be tried under existing law of land if the crimes are actually committed abroad and what would be the situation if the person in question sought protection under Geneva Convention at some stage and has been naturalised as citizen of the state. 

We need to see the relevant national & international instrument under which Geneva convention protection is granted. An asylum seeker seeks protection under article 1(a) of Geneva convention 1951: “Article 1 of the Geneva Convention says, “Owing to a well founded fear of persecution for reasons of race, colour, nationality, membership of a particular society group or political opinion, is out side his country of nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being out side the country of his former habitual residence¦ is unable or, owing to such fear, is unwilling to return to it.

British Immigration Rules says under 334 HC 395 regarding grant of protection, the rule says as following, “334. An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:

(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;

(ii) he is a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;

(iii) there are no reasonable grounds for regarding him as a danger to the security of the United Kingdom;

(iv) he does not, having been convicted by a final judgment of a particularly serious crime, he does not constitute danger to the community of the United Kingdom; and

(v) refusing his application would result in him being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Geneva Convention, to a country in which his life or freedom would threatened on account of his race, religion, nationality, political opinion or membership of a particular social group. 

335. If the Secretary of State decides to grant asylum to a person who has been given leave to enter (whether or not the leave has expired) or to a person who has entered without leave, the Secretary of State will vary the existing leave or grant limited leave to remain.

Asylum application is refused if it does not meet the criteria se t in rule 335. However same convention at article 1(f) confirms that a person is not entitled for same protection under Article 1(f) and or Article 33(1) of the same convention if he is involved in criminal activity. Article 1(f) of Geneva convention 1951says;  “F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that. (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations.

Article 1(f) is mirrored in Rule 339 of HC 395 where Exclusion from humanitarian protection is detailed in following terms,  “ 339D. A person is excluded from a grant of humanitarian protection under paragraph 339C (iv) where the Secretary of State is satisfied that:

(i) there are serious reasons for considering that he has committed a crime against peace, a war crime, a crime against humanity, or any other serious crime or instigated or otherwise participated in such crimes;

(ii) there are serious reasons for considering that he is guilty of acts contrary to the purposes and principles of the United Nations or has committed, prepared or instigated
such acts or encouraged or induced others to commit, prepare or instigate instigated such acts;

(iii) there are serious reasons for considering that he constitutes a danger to the community or to the security of the United Kingdom; and

(iv) prior to his admission to the United Kingdom the person committed a crime outside the scope of (i) and (ii) that would be punishable by imprisonment were it committed in the United Kingdom and the person left his country of origin solely in order to avoid sanctions resulting from the crime.

Now comes the stage if a criminal is wanted by host state and guarantee is given by way of Memorandum of Understanding that he will be offered 'due process of law' and 'fair trial' and will not be hanged, can he be removed from UK, the answer is yes, though it entails a long legal battle on account of public money in the shape of legal aid heavy bills of lawyers.

Now we come to the stage 2, in the event a person in question has become citizen can he still be removed or stripped off his nationality. The law has changed rapidly in recent years and again it is in the power of Secretary of State to certify some one as 'international terrorist' offer him for a trial in UK and or extradite him to face charges abroad where those crimes have been committed but a prima facie case needs to be made by Home Secretary though his assessment is final once made and rarely challenged by highest courts considering him the executive in charge of public safety as mandated by public.

In that premises we need to see S.21 the Anti-terrorism, Crime and Security Act 2001 which outline Home Secretary's powers and in order to determine what the parliament intended as to who is an international terrorist, the section says as following,

Now question arises can a citizen be tried and punished for crimes committed abroad and can his nationality be taken. Under s.7 of the British Nationality and Status of Aliens Act 1914, the Secretary of State had the power to 'revoke' a certificate of naturalisation granted by him if he was satisfied that it had been obtained "by false representation or fraud, or by

concealment of material circumstances, or that the person to whom the certificate is

granted has shown himself by act or speech to be disaffected or disloyal to His

Majesty ..." This section was a corresponding section of the BNA 1948 was s.20 (deprivation of citizenship) and The deprivation provisions are now contained in s.40 of the BNA 1981.

“S.40 of nationality Act 1981 says as following, “[ 40 Deprivation of citizenship

(1) In this section a reference to a person's "citizenship status" is a reference to his status as--

(a) a British citizen,

(b) a British overseas territories citizen,

(c) a British Overseas citizen,

(d) a British National (Overseas),

(e) a British protected person, or

(f) a British subject.

(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that the person has done anything seriously prejudicial to the vital interests of--

(a) the United Kingdom, or

(b) a British overseas territory.

(3) The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of--

(a) fraud,

(b) false representation, or

(c) concealment of a material fact.

(4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.

(5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying--

(a) that the Secretary of State has decided to make an order,

(b) the reasons for the order, and

(c) the person's right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997 (c. 68).

(6) Where a person acquired a citizenship status by the operation of a law which applied to him because of his registration or naturalisation under an enactment having effect before commencement, the Secretary of State may by order deprive the person of the citizenship status if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of--

(a) fraud,

(b) false representation, or

(c) concealment of a material fact.

If one is British and or dual national then under s.4 of Nationality, Immigration and Asylum Act 2002 which amends earlier laws of Nationality Act 1981(s.40) empowers secretary of State for Home Affairs to deprive  a citizen of his citizenship if the Secretary of State is satisfied that the person has done anything seriously prejudicial to the vital interests of  the United Kingdom, on accounts of his activities which create danger to public good and or in the interest of national security. A fire brand Muslim Cleric Abu Hamza has been the first victim of this law when then Home Secretary David Blunkett told the media on 5 April 2003 that he has written a letter withdrawing his (Abu Hamza's) citizenship and said, “he wanted to deal with people who our intelligence and security people believe are a risk to us, and he warned that, “if you encourage, support, advise, help people to take up training, if you facilitate them, then, of course, that takes your right over the boundary, and finally he said that he thinks, “ it is reasonable that we should regard citizenship as a privilege conveyed to people who have not been born here, with which certain responsibilities should go. A person may be detained in accordance with Part 4 of the Anti-terrorism, Crime and Security Act 2001 and may be removed if alien and or tried in UK if citizen under Terrorism Act 2000 if he is involved in international terrorism.

It seems clear to me that there is a convincing argument that the use and or threat of violence was made for the purpose of advancing the political cause of one party, namely a visible and violent show of support for the incumbent President.

Now the issue is where a person seeks protection on the premises that his life is in danger in his country of origin, gets refugee status and nationality, can he be removed at a later stage if found involved in criminal activities or crimes against humanity, the answer is yes. 

If someone seeks protection and later uses London as a 'safe heaven' a shelter to spread  horror and terror in the country of origin where he carries influence and his claimed 'threat to his life' no longer is relevant may be considered for prosecution and removal from the United Kingdom.

If his fire brand activities may create a serious threat to the British public in retaliation then Secretary of State has power to do the balancing exercise whether 'interest of state' is greater than the 'individual rights' as was held by house of Lords in the case of Rehman reported at page 47 [2001] UKHL and in that situation Home Secretary may take action firstly to deprive that individual of his nationality if because of his criminal activity he is required by an other state and or is involved in international crimes and also for his activities which poses a direct threat to British Public and create national security concerns. His activities will be directly relevant to British Home Secretary if foreign activity risks carrying retaliatory attacks at London at some stage in future by the victims and or severe criticism by democrats for harboring such elements. 

Lets put it this way if a religious fire brand, puppet leader or exiled politician campaigns in a negative way which results in mass killing, War crimes or  Acts committed at any time as part of a widespread or systematic attack, directed against any civilian population with knowledge of the attack. This would include offences such as murder, torture, rape, severe deprivation of liberty in violation of fundamental rules of international law and enforced disappearance of persons. Genocide, Acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. Terrorist activities, Any act committed, or the threat of action, designed to influence a government or intimidate the public and made for the purposes of advancing a political, religious or ideological cause and that involves serious violence against a person; that may endanger another person's life; creates a serious risk to the health or safety of the public; involves serious damage to property; is designed to seriously disrupt or interfere with an electronic system. Organisations concerned in terrorism, An organisation is concerned in terrorism if it commits or participates in acts of terrorism; prepares for terrorism; promotes or encourages terrorism (including the unlawful glorification of terrorism); or is otherwise concerned in terrorism, he can be removed, stripped off his nationality and extradited to the state where those crimes have been committed subject to some conditions. If the Home Secretary and International community remain silent on such acts, it will send a wrong signal to those oppressed and it may be considered akin to condoning those  atrocities which may carry serious repercussions and retaliation against the British land itself.

Now the question is who will bell the cat. To me world is closely knit into global village and media's role is greater than we ever envisaged. The images we saw in Karachi on 12 May 2007 poses a serious question to British Home Secretary whether any of such acts have been committed with the knowledge, aid and or protection of a leader living in a luxury life in exile on the premises that his life is in danger, and if those acts may jeopardise public safety of British Citizens and or risk carrying a retaliation in London and if the answer is yes then all those sanctions and prosecutions available can be materialised to avoid any bombing in Edgware before its too late. Britain at this juncture if neglects to check the perpetration of violence from 'London hub' directed at Karachi or some where else can not absolve its duty to protect British public if tomorrow that violence breeds violence and its effects come to the shore of London. Its time for British Home Secretary to act and act very fast before its too late.

Amjad Malik is a Solicitor-Advocate of the Supreme Court (England), and a life member of Supreme Court Bar Association as well as an expert of Immigration & human rights law and he has done LLM on national security Deportation from UK University.

17 May 2007