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Session 2001- 02
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Judgments - Secretary of State For The Home Department v. Rehman (AP)

HOUSE OF LORDS

Lord Slynn of Hadley Lord Steyn Lord Hoffmann Lord Cyde Lord Hutton

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

SECRETARY OF STATE FOR THE HOME DEPARTMENT

(RESPONDENT)

v.

REHMAN (AP)

(APPELLANT)

ON 11 OCTOBER 2001

[2001] UKHL 47

LORD SLYNN

My Lords,

    1. Mr Rehman, the appellant, is a Pakistani national, born in June 1971 in Pakistan. He was educated and subsequently, after obtaining a master's degree in Islamic studies, taught at Jamid Salfiah in Islamabad until January 1993. On 17 January 1993 he was given an entry clearance to enable him to work as a minister of religion with the Jamait Ahle-e-Hadith in Oldham. His father is such a minister in Halifax and both his parents are British citizens. He arrived here on 9 February 1993 and was subsequently given leave to stay until 9 February 1997 to allow him to complete four years as a minister. He married and has two children born in the United Kingdom. In October 1997 he was given leave to stay until 7 January 1998 to enable him to take his family to Pakistan from which he returned on 4 December 1997. He applied for indefinite leave to remain in the United Kingdom but that was refused on 9 December 1998. In his letter of refusal the Secretary of State said:

    "the Secretary of State is satisfied, on the basis of the information he has received from confidential sources, that you are involved with an Islamic terrorist organisation Markaz Dawa Al Irshad (MDI). He is satisfied that in the light of your association with the MDI it is undesirable to permit you to remain and that your continued presence in this country represents a danger to national security. In these circumstances, the Secretary of State has decided to refuse your application for indefinite leave to remain in accordance with paragraph 322(5) of the Immigration Rules (HC395).

    "By virtue of section 2(1)(b) of the Special Immigration Appeals Commission Act 1997 you are entitled to appeal against the Secretary of State's decision as he has personally certified that [sic] your departure from the United Kingdom to be conducive to the public good in the interests of national security".

    The Secretary of State added that his deportation from the United Kingdom would be conducive to the public good "in the interests of national security because of your association with Islamic terrorist groups". Mr Rehman was told that he was entitled to appeal, which he did, to the Special Immigration Appeals Commission by virtue of section 2(1)(c) of the Special Immigration Appeals Commission Act 1997. The Special Immigration Appeals Commission (Procedure) Rules 1998 (SI 1998 No 1881) allowed the Secretary of State to make both an open statement and a closed statement, only the former being disclosed to Mr Rehman. The Secretary of State in his open statement said:

    "The Security Service assesses that while Ur Rehman and his United Kingdom-based followers are unlikely to carry out any acts of violence in this country, his activities directly support terrorism in the Indian subcontinent and are likely to continue unless he is deported. Ur Rehman has also been partly responsible for an increase in the number of Muslims in the United Kingdom who have undergone some form of militant training, including indoctrination into extremist beliefs and at least some basic weapons training. The Security Service is concerned that the presence of returned jihad trainees in the United Kingdom may encourage the radicalisation of the British Muslim community. His activities in the United Kingdom are intended to further the cause of a terrorist organisation abroad. For this reason, the Secretary of State considers both that Ur Rehman poses a threat to national security and that he should be deported from the United Kingdom on [the] grounds that his presence here is not conducive to the public good for reasons of national security".

    2. The appeal was heard both in open and in closed sessions. The Commission in its decision of 20 August 1999 held:

    "That the expression 'national security' should be construed narrowly, rather than in the wider sense contended for by the Secretary of State and identified in the passages from Mr Sales' written submissions cited above. We recognise that there is no statutory definition of the term or legal authority directly on the point. However, we derive assistance from the passages in the authorities cited to us by Mr Kadri, namely Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410A-C, per Lord Diplock and R v Secretary of State for Home Affairs Ex p Hosenball [1977] 1 WLR 766, 778D-H, 783F-H, per Lord Denning MR, and note the doubts expressed by Staughton LJ in R v Secretary of State for the Home Department, Ex p Chahal [1995] 1 WLR at 531. Moreover, whilst we recognise the terms of the Security Service Act 1989 are in no way decisive in the issue, we have derived assistance from the general approach contended for by Mr Nicholas Blake QC [special advocate before the Commission]. We have found the passage cited by him from Professor Grahl-Madsen's book [The Status of Refugees in International Law (1966)] to be particularly helpful. In the circumstances, and for the purposes of this case, we adopt the position that a person may be said to offend against national security if he engages in, promotes, or encourages violent activity which is targeted at the United Kingdom, its system of government or its people. This includes activities directed against the overthrow or destabilisation of a foreign government if that foreign government is likely to take reprisals against the United Kingdom which affect the security of the United Kingdom or of its nationals. National security extends also to situations where United Kingdom citizens are targeted, wherever they may be. This is the definition of national security which should be applied to the issues of fact raised by this appeal".

    3. They then considered the allegations of fact and they said:

    "we have asked ourselves whether the Secretary of State has satisfied us to a high civil balance of probabilities that the deportation of this appellant, a lawful resident of the United Kingdom, is made out on public good grounds because he has engaged in conduct that endangers the national security of the United Kingdom and, unless deported, is likely to continue to do so. In answering this question we have to consider the material, open, closed, and restricted, the oral evidence of witnesses called by the respondent, and the evidence of the appellant produced before us. We are satisfied that this material and evidence enables us properly to reach a decision in this appeal (Rule 3 of the 1998 Rules).

    4. The Commission declined to set out in detail their analysis of the "open" "restricted" and "closed" evidence on the basis that this would be capable of creating a serious injustice and they confined themselves to stating their conclusions, namely:

    "1.  Recruitment. We are not satisfied that the appellant has been shown to have recruited British Muslims to undergo militant training as alleged.

    2.   We are not satisfied that the appellant has been shown to have engaged in fund-raising for the LT [Lashkar Tayyaba] as alleged.

    3.   We are not satisfied that the appellant has been shown to have knowingly sponsored individuals for militant training camps as alleged.

    4.   We are not satisfied that the evidence demonstrates the existence in the United Kingdom of returnees, originally recruited by the appellant, who during the course of that training overseas have been indoctrinated with extremist beliefs or given weapons training, and who as a result allow them to create a threat to the United Kingdom's national security in the future"

    5. They added:

    "We have reached all these conclusions while recognising that it is not disputed that the appellant has provided sponsorship, information and advice to persons going to Pakistani for the forms of training which may have included militant or extremist training. Whether the appellant knew of the militant content of such training has not, in our opinion, been satisfactorily established to the required standard by the evidence. Nor have we overlooked the appellant's statement that he sympathised with the aims of LT in so far as that organisation confronted what he regarded as illegal violence in Kashmir. But, in our opinion, these sentiments do not justify the conclusion contended for by the respondent. It follows, from these conclusions of fact, that the respondent has not established that the appellant was, is, and is likely to be a threat to national security. In our view, that would be the case whether the wider or narrower definition of that term, as identified above, is taken as the test. Accordingly we consider that the respondent's decisions in question were not in accordance with the law or the Immigration Rules (paragraph 364 of HC 395) and thus we allow these appeals".

    6. The Secretary of State appealed. The Court of Appeal [2000] 3 WLR 1240 considered that the Commission had taken too narrow a view of what could constitute a threat to national security in so far as it required the conduct relied on by the Secretary of State to be targeted at this country or its citizens. The Court of Appeal also considered, at p 1254, that the test was not whether it had been shown "to a high degree of probability" that the individual was a danger to national security but that a global approach should be adopted "taking into account the executive's policy with regard to national security". Accordingly they allowed the appeal and remitted the matter to the Commission for redetermination applying the approach indicated in their judgment.

    7. The Court of Appeal in its judgement has fully analysed in detail the provisions of the Immigration Act 1971, the 1997 Act and the 1998 Rules. I adopt what the court has said and can accordingly confine my references to the legislation which is directly in issue on this appeal to your Lordships' House.

    8. The 1971 Act contemplates first a decision by the Secretary of State to make a deportation order under section 3(5) of that Act, in the present case in respect of a person who is not a British citizen "(b) if the Secretary of State deems his deportation to be conducive to the public good". There is no definition or limitation of what can be "conducive to the public good" and the matter is plainly in the first instance and primarily one for the discretion of the Secretary of State. The decision of the Secretary of State to make a deportation order is subject to appeal by section 15(1)(a) of the 1971 Act save that by virtue of section 15 (3)

    "A person shall not be entitled to appeal against a decision to make a deportation order against him if the ground of the decision was that his deportation is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature".

    9. Despite this prohibition there was set up an advisory procedure to promote a consideration of the Secretary of State's decision under that Act. This however was held by the European Court of Human Rights in Chahal v United Kingdom (1996) 23 EHRR 413 not to provide an effective remedy within section 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmnd 8969). Accordingly the Commission was set up by the 1997 Act and by subsection 2(1)(c) a person was given a right to appeal to the Commission against:

    "any matter in relation to which he would be entitled to appeal under subsection 1(a) of section 15 of [the 1971 Act] (appeal to an adjudicator or the Appeal Tribunal against a decision to make a deportation order), but for subsection (3) of that section (deportation conducive to public good)."

    The exclusion of the right of appeal if the decision to deport was on the ground that deportation was conducive to the public good on the basis that it was in the interests of national security or of the relations between the United Kingdom and any other country or for any other reasons of a political nature was thus removed.

    10. Section 4 of the 1997 Act provides that the Commission:

    "(a) shall allow the appeal if it considers -

    (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or

    (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently, and

          (b) in any other case, shall dismiss the appeal."

    11. It seems to me that on this language and in accordance with the purpose of the legislation to ensure an "effective remedy", within the meaning of article 13 of the European Convention, that the Commission was empowered to review the Secretary of State's decision on the law and also to review his findings of fact. It was also given the power to review the question whether the discretion should have been exercised differently. Whether the question should have been exercised differently will normally depend on whether on the facts found the steps taken by the Secretary of State were disproportionate to the need to protect national security.

    12. From the Commission's decision there is a further appeal to the Court of Appeal on "any question of law material to" the Commission's determination: section 7(1).

    13. The two main points of law which arose before the Court of Appeal are now for consideration by your Lordships' House. Mr Kadri QC has forcefully argued that the Court of Appeal was wrong on both points.

    14. As to the meaning of "national security" he contends that the interests of national security do not include matters which have no direct bearing on the United Kingdom, its people or its system of government. "National security" has the same scope as "defence of the realm". For that he relies on what was said by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 ,410B-C, and on the use of the phrases in a number of international conventions. Moreover he says that since the Secretary of State based his decision on a recommendation of the Security Services it can only be on matters within their purview and that their function, by section 1(2) of the Security Service Act 1989, was:

    "the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means."

    He relies moreover on statements by groups of experts in international law, the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, as approved on 1 October 1995 in Johannesburg which stressed as:

    "Principle 2. Legitimate national security interests

        (a)     A restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose and demonstrable effect is to protect a country's existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government.

        (b)    In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest."

    15. It seems to me that the appellant is entitled to say that "the interests of national security" cannot be used to justify any reason the Secretary of State has for wishing to deport an individual from the United Kingdom. There must be some possibility of risk or danger to the security or well-being of the nation which the Secretary of State considers makes it desirable for the public good that the individual should be deported. But I do not accept that this risk has to be the result of "a direct threat" to the United Kingdom as Mr Kadri has argued. Nor do I accept that the interests of national security are limited to action by an individual which can be said to be "targeted at" the United Kingdom, its system of government or its people as the Commission considered. The Commission agreed that this limitation is not to be taken literally since they accepted that such targeting:

    "includes activities directed against the overthrow or destabilisation of a foreign government if that foreign government is likely to take reprisals against the United Kingdom which affect the security of the United Kingdom or of its nationals".

    16. I accept as far as it goes a statement by Professor Grahl-Madsen in The Status of Refugees in International Law (1966):

    "A person may be said to offend against national security if he engages in activities directed at the overthrow by external or internal force or other illegal means of the government of the country concerned or in activities which are directed against a foreign government which as a result threaten the former government with intervention of a serious nature".

    That was adopted by the Commission but I for my part do not accept that these are the only examples of action which makes it in the interests of national security to deport a person. It seems to me that, in contemporary world conditions, action against a foreign state may be capable indirectly of affecting the security of the United Kingdom. The means open to terrorists both in attacking another state and attacking international or global activity by the community of nations, whatever the objectives of the terrorist, may well be capable of reflecting on the safety and well-being of the United Kingdom or its citizens. The sophistication of means available, the speed of movement of persons and goods, the speed of modern communication, are all factors which may have to be taken into account in deciding whether there is a real possibility that the national security of the United Kingdom may immediately or subsequently be put at risk by the actions of others. To require the matters in question to be capable of resulting "directly" in a threat to national security limits too tightly the discretion of the executive in deciding how the interests of the state, including not merely military defence but democracy, the legal and constitutional systems of the state need to be protected. I accept that there must be a real possibility of an adverse affect on the United Kingdom for what is done by the individual under inquiry but I do not accept that it has to be direct or immediate. Whether there is such a real possibility is a matter which has to be weighed up by the Secretary of State and balanced against the possible injustice to that individual if a deportation order is made.

    17. In his written case Mr Kadri appears to accept (contrary it seems to me to his argument in the Court of Appeal that they were mutually exclusive and to be read disjunctively) that the three matters referred to in section 15(3) of the 1971 Act, namely "national security", "the relations between the United Kingdom and any other country" or "for other reasons of a political nature" may overlap but only if action which falls in one or more categories amounts to a direct threat. I do not consider that these three categories are to be kept wholly distinct even if they are expressed as alternatives. As the Commission itself accepted, reprisals by a foreign state due to action by the United Kingdom may lead to a threat to national security even though this is action such as to affect "relations between the United Kingdom and any other country" or to be "of a political nature". The Secretary of State does not have to pin his colours to one mast and be bound by his choice. At the end of the day the question is whether the deportation is conducive to the public good. I would accept the Secretary of State's submission that the reciprocal co-operation between the United Kingdom and other states in combating international terrorism is capable of promoting the United Kingdom's national security, and that such co-operation itself is capable of fostering such security "by, inter alia, the United Kingdom taking action against supporters within the United Kingdom of terrorism directed against other states". There is a very large element of policy in this which is, as I have said, primarily for the Secretary of State. This is an area where it seems to me particularly that the Secretary of State can claim that a preventative or precautionary action is justified. If an act is capable of creating indirectly a real possibility of harm to national security it is in principle wrong to say that the state must wait until action is taken which has a direct effect against the United Kingdom.

    18. National security and defence of the realm may cover the same ground though I tend to think that the latter is capable of a wider meaning. But if they are the same then I would accept that defence of the realm may justify action to prevent indirect and subsequent threats to the safety of the realm.

    19. The United Kingdom is not obliged to harbour a terrorist who is currently taking action against some other state (or even in relation to a contested area of land claimed by another state) if that other state could realistically be seen by the Secretary of State as likely to take action against the United Kingdom and its citizens.

    20. I therefore agree with the Court of Appeal that the interests of national security are not to be confined in the way which the Commission accepted.

    21. Mr Kadri's second main point is that the Court of Appeal were in error when rejecting the Commission's ruling that the Secretary of State had to satisfy them, "to a high civil balance of probabilities", that the deportation of this appellant, a lawful resident of the United Kingdom, was made out on public good grounds because he had engaged in conduct that endangered the national security of the United Kingdom and, unless deported, was likely to continue to do so. The Court of Appeal [2000] 3 WLR 1240, 1254, para 44 said:

    "However, in any national security case the Secretary of State is entitled to make a decision to deport not only on the basis that the individual has in fact endangered national security but that he is a danger to national security. When the case is being put in this way, it is necessary not to look only at the individual allegations and ask whether they have been proved. It is also necessary to examine the case as a whole against an individual and then ask whether on a global approach that individual is a danger to national security, taking into account the executive's policy with regard to national security. When this is done, the cumulative effect may establish that the individual is to be treated as a danger, although it cannot be proved to a high degree of probability that he has performed any individual act which would justify this conclusion."

    22. Here the liberty of the person and the practice of his family to remain in this country is at stake and when specific acts which have already occurred are relied on, fairness requires that they should be proved to the civil standard of proof. But that is not the whole exercise. The Secretary of State, in deciding whether it is conducive to the public good that a person should be deported, is entitled to have regard to all the information in his possession about the actual and potential activities and the connections of the person concerned. He is entitled to have regard to the precautionary and preventative principles rather than to wait until directly harmful activities have taken place, the individual in the meantime remaining in this country. In doing so he is not merely finding facts but forming an executive judgement or assessment. There must be material on which proportionately and reasonably he can conclude that there is a real possibility of activities harmful to national security but he does not have to be satisfied, nor on appeal to show, that all the material before him is proved, and his conclusion is justified, to a "high civil degree of probability". Establishing a degree of probability does not seem relevant to the reaching of a conclusion on whether there should be a deportation for the public good.

    23. Contrary to Mr Kadri's argument this approach is not confusing proof of facts with the exercise of discretion—specific acts must be proved, and an assessment made of the whole picture and then the discretion exercised as to whether there should be a decision to deport and a deportation order made.

    24. If of course it is said that the decision to deport was not based on grounds of national security and there is an issue as to that matter then "the Government is under an obligation to produce evidence that the decision was in fact based on grounds of national security: see Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 372, 402. That however is not the issue in the present case.

    25. On the second point I am wholly in agreement with the decision of the Court of Appeal.

    26. In conclusion even though the Commission has powers of review both of fact and of the exercise of the discretion, 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. He is undoubtedly in the best position to judge what national security requires even if his decision is open to review. The assessment of what is needed in the light of changing circumstances is primarily for him. On an appeal the Court of Appeal and your Lordships' House no doubt will give due weight to the conclusions of the Commission, constituted as it is of distinguished and experienced members, and knowing as it did, and as usually the court will not know, of the contents of the "closed" evidence and hearing. If any of the reasoning of the Commission shows errors in its approach to the principles to be followed, then the courts can intervene. In the present case I consider that the Court of Appeal was right in its decision on both of the points which arose and in its decision to remit the matters to the Commission for redetermination in accordance with the principles which the Court of Appeal and now your Lordships have laid down. I would accordingly dismiss the appeal.

LORD STEYN

My Lords,

 
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