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

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    27. I am in agreement with the reasons given by Lord Slynn of Hadley in his opinion and I would also dismiss the appeal. I can therefore deal with the matter quite shortly.

    28. Section 15(3) of the Immigration Act 1971 contemplated deportation of a person in three situations, viz where:

    "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."

The Commission thought that section 15(3) should be interpreted disjunctively. In the Court of Appeal [2000] 3 WLR 1240 Lord Woolf MR explained, at p 1253, para 40 that while it is correct that these situations are alternatives "there is clearly room for there to be an overlap." I agree. Addressing directly the issue whether the conduct must be targeted against the security of this country, Lord Woolf observed, at p 1251, para 34:

    "Whatever may have been the position in the past, increasingly the security of one country is dependent upon the security of other countries. That is why this country has entered into numerous alliances. They acknowledge the extent to which this country's security is dependent upon the security of other countries. The establishment of NATO is but a reflection of this reality. An attack on an ally can undermine the security of this country."

Later in his judgment, at pp 1253-1254, para 40, Lord Woolf said that the Government "is perfectly entitled to treat any undermining of its policy to protect this country from international terrorism as being contrary to the security interests of this country". I respectfully agree. Even democracies are entitled to protect themselves, and the executive is the best judge of the need for international co-operation to combat terrorism and counter-terrorist strategies. This broader context is the backcloth of the Secretary of State's statutory power of deportation in the interests of national security.

    29. That brings me to the next issue. Counsel for the appellant submitted that the civil standard of proof is applicable to the Secretary of State and to the Commission. This argument necessarily involves the proposition that even if the Secretary of State is fully entitled to be satisfied on the materials before him that the person concerned may be a real threat to national security, the Secretary of State may not deport him. That cannot be right. The task of the Secretary of State is to evaluate risks in respect of the interests of national security. Lord Woolf expressed the point with precision as follows, at p 1254, para 44:

    "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. Here it is important to remember that the individual is still subject to immigration control. He is not in the same position as a British citizen. He has not been charged with a specific criminal offence. It is the danger which he constitutes to national security which is to be balanced against his own personal interests."

The dynamics of the role of the Secretary of State, charged with the power and duty to consider deportation on grounds of national security, irresistibly supports this analysis. While I came to this conclusion by the end of the hearing of the appeal, the tragic events of 11 September 2001 in New York reinforce compellingly that no other approach is possible.

    30. The interpretation of section 4 of the Special Immigration Appeals Commission Act 1997 was not explored in any depth on the appeal to the House. Section 4 so far as relevant reads:

    "(1) The Special Immigration Appeals Commission on an appeal to it under this Act - (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. (2) Where an appeal is allowed, the Commission shall give such directions for giving effect to the determination as it thinks requisite, and may also make recommendations with respect to any other action which it considers should be taken in the case under the Immigration Act 1971; and it shall be the duty of the Secretary of State and of any officer to whom directions are given under this subsection to comply with them."

In the light of the observations of the European Court of Human Rights in Chahal v United Kingdom (1996) 23 EHRR 413 Parliament has provided for a high-powered Commission, consisting of a member who holds or has held high judicial office, an immigration judge, and a third member, who will apparently be someone with experience of national security matters: see section 1 of and Schedule 1 to the 1997 Act and per Lord Woolf MR [2000] 3 WLR 1240, 1245, 1246, paras 11 and 17. Lord Woolf observed, at p 1254, para 42, that the Commission were correct to regard it as their responsibility to determine questions of fact and law. He added:

    "The fact that Parliament has given SIAC responsibility of reviewing the manner in which the Secretary of State has exercised his discretion inevitably leads to this conclusion. Without statutory intervention, this is not a role which a court readily adopts. But SIAC's membership meant that it was more appropriate for SIAC to perform this role."

I respectfully agree. Not only the make-up of the Commission but also the procedures of the Commission serve to protect the interests of national security: Special Immigration Appeals Act Commission (Procedure) Rules 1998; see also the discussion of the new procedure in INLP, Vol. 12, No. 2, 1998 67-69.

    31. Moreover the expression "in accordance with the law" in section 4 of the 1997 Act comprehends also since 2 October 2000 Convention rights under the Human Rights Act 1998. Thus article 8 (right of respect for family life), article 10 (freedom of expression) and article 11 (freedom of assembly and association) all permit such derogations as are prescribed by law and are necessary in a democratic society in the interests of national security. While a national court must accord appropriate deference to the executive, it may have to address the questions: Does the interference serve a legitimate objective? Is it necessary in a democratic society? In Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249 the European Court of Human Rights had to consider public interest immunity certificates involving national security considerations issued by the Secretary of State in discrimination proceedings. The court observed, at p 290, para 77:

    "the conclusive nature of the section 42 [Fair Employment (Northern Ireland) Act 1976] certificates had the effect of preventing a judicial determination on the merits of the applicants' complaints that they were victims of unlawful discrimination. The court would observe that such a complaint can properly be submitted for an independent judicial determination even if national security considerations are present and constitute a highly material aspect of the case. The right guaranteed to an applicant under article 6(1) of the Convention to submit a dispute to a court or tribunal in order to have a determination on questions of both fact and law cannot be displaced by the ipse dixit of the executive."

    It is well established in the case law that issues of national security do not fall beyond the competence of the courts: see, for example, Johnston v Chief Constable of the Royal Ulster Constabulary (Case 222/84) [1987] QB 129; R v Secretary of State for the Home Department, Ex p McQuillan [1995] 4 All ER 400; R v Ministry of Defence, Ex p Smith [1996] QB 517 and Smith and Grady v United Kingdom (2000) 29 EHRR 493; compare also the extensive review of the jurisprudence on expulsion and deportation in P Van Dijk and G J H Van Hoof, The Theory and Practice of the European Convention on Human Rights 1998, 515-521. It is, however, self-evidently right that national courts must give great weight to the views of the executive on matters of national security. But not all the observations in Chandler v Director of Public Prosecutions [1964] AC 763 can be regarded as authoritative in respect of the new statutory system.

    32. For the reasons given by Lord Woolf, the reasons given by Lord Slynn of Hadley, and my brief reasons, I would dismiss the appeal.

LORD HOFFMANN

My Lords,

The decision to deport

    33. Mr Shafiq Ur Rehman is a Pakistani national. He came to this country in 1993 and was given limited leave to enter and to work as a minister of religion. In 1997 he applied for indefinite leave to remain. On 9 December 1998 the Home Secretary refused the application. His letter said that he was satisfied, on the basis of information from confidential sources, that Mr Rehman was involved with an Islamic terrorist organisation called Markaz Dawa Al Irshad ("MDI") and that his continued presence in this country was a danger to national security. The Home Secretary also gave notice of his intention to make a deportation order under section 3(5)(b) of the Immigration Act 1971 on the ground that for the same reasons his deportation would be conducive to the public good.

    The right of appeal

    34. Until 1998 Mr Rehman would have had no right of appeal against the Home Secretary's decision to deport him. Ordinarily there is a right of appeal to an immigration adjudicator against a decision of the Secretary of State to make a deportation order under section 3(5): see section 15(1). The adjudicator hearing the appeal is required by section 19(1) to allow the appeal if he considers that the decision was "not in accordance with the law or with any immigration rules applicable to the case" or, where the decision involved the exercise of a discretion by the Secretary of State, "that the discretion should have been exercised differently". Otherwise, the appeal must be dismissed.

    35. But this general right of appeal is excluded by section 15(3) if the ground of the decision to make the deportation order

    "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."

Parliament took the view that the need to preserve the confidentiality of the material taken into account by the Home Secretary in making a deportation order on one or other of these grounds made it impossible to allow an effective right of appeal. All that could be permitted was the right to make representations to an extra-statutory panel appointed by the Home Secretary to advise him.

    36. In Chahal v United Kingdom(1996) 23 EHRR 413 the European Court of Human Rights decided that this procedure was inadequate to safeguard two of the deportee's Convention rights. First, he was entitled under article 13 to an effective remedy from an independent tribunal to protect his right under article 3 not to be deported to a country where there was a serious risk that he would suffer torture or inhuman or degrading treatment. Secondly, if he was detained pending deportation, he was entitled under article 5(4) to the determination of an independent tribunal as to whether his detention was lawful. The European court rejected the United Kingdom Government's argument that considerations of national security or international relations made it impossible to accord such a right of appeal. The court, at p 469, para 131, commended the procedure established by the Canadian Immigration Act 1976, under which the confidentiality of secret sources could be maintained by disclosing it only to a special security-cleared advocate appointed to represent the deportee who could cross-examine witnesses in the absence of the appellant (p 472, para 144).

    37. The European Court also considered the argument that decisions on national security were essentially a matter for the executive and that it would contrary to principle to allow an independent tribunal to substitute its own decision on such matters for that of the responsible minister. It acknowledged, at p 468, para 127, that article 5(4) :

    "does not guarantee a right to judicial review of such breadth as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the 'lawful' detention of a person according to article 5(1)."

The term "question of expediency" is regularly used by the European Court to describe what English lawyers would call a question of policy: see the discussion of the European cases in the recent case of R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389.

    38. This was the background to the passing of the Special Immigration Appeals Commission Act 1997, under which Mr Rehman was able to appeal. The Act was intended to enable the United Kingdom to comply with the European Convention as interpreted by the court in Chahal's case. It established a Special Immigration Appeals Commission ("the Commission") with jurisdiction to hear various categories of appeals, including (under section 2(1)(c)) those excluded from the jurisdiction of the adjudicator by section 15(3) of the 1971 Act. Section 4(1) gave the Commission power to deal with such appeals in the same terms as the power conferred upon the adjudicator by section 19(1) of the 1971 Act. The 1997 Act enabled the Lord Chancellor to make procedural rules for the Commission and pursuant to this power he made the Special Immigration Appeals Commission (Procedure) Rules 1998. This follows the Canadian model in allowing part of the proceedings to be conducted at a private hearing from which the appellant may be excluded but represented by a special advocate.

The Home Secretary's reasons

    39. Pursuant to rule 10(1)(a), the Home Secretary provided the Commission with a summary of the facts relating to his decision and the reasons for the decision. It said that Mr Rehman was the United Kingdom point of contact for MDI, an "extremist organisation" whose mujahidin fighters were known as Lashkar Tayyaba ("LT"). Mr Rehman was said to have been involved on MDI's behalf in the recruitment of British Muslims to undergo military training and in fund raising for LT. He was a personal contact of Mohammed Saeed, the worldwide leader of MDI and LT. The Security Service assessed that his activities directly supported a terrorist organisation.

    40. The grounds upon which these activities were seen as a threat to national security was that, while Mr Rehman and his followers were unlikely to carry out acts of violence in the United Kingdom, his activities directly supported terrorism in the Indian subcontinent. Mr Peter Wrench, head of the Home Office Terrorism and Protection Unit, told the Commission that the defence of Uunited Kingdom national security against terrorist groups depended upon international reciprocity and co-operation. It was therefore in the security interests of the United Kingdom to co-operate with other nations, including India, to repress terrorism anywhere in the world.

    41. An additional reason was that Mr Rehman had been responsible for an increase in the number of Muslims in the United Kingdom who had undergone some form of militant training and that the presence of returned trainees in the United Kingdom might encourage the radicalisation of the British Muslim community.

    The Commission's decision

    42. The Commission said that the appeal raised two issues. The first was whether Mr Rehman was engaged in the activities alleged by the Home Secretary. The second was whether his activities, so far as the Commission found them proved, were against the interests of the security of the United Kingdom. The view taken by the Commission was that the Home Secretary's allegations had to be established "to a high civil balance of probabilities". The Commission went through each of the principal allegations: (1) involvement in recruitment of British Muslims to go to Pakistan for terrorist training; (2) fund raising for LT; (3) sponsorship of individuals for militant training camps; and (4) creation of a group of returnees who had been given weapons training or been indoctrinated with extremist beliefs so as to create a threat to the security of the United Kingdom. In each case it said that it was not satisfied to the necessary standard of proof that the allegation had been made out.

    43. On the question of whether Mr Rehman's activities, so far as proved, constituted a threat to national security, the Commission rejected the argument that the question of what could constitute a threat to national security was a matter for the Home Secretary to decide. It said that the definition of national security was a question of law which it had jurisdiction to decide. It examined various authorities and came to the conclusion 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". It included within this definition activities against 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".

    44. Finally, the Commission said that the various grounds of decision which section 15(3) of the 1971 Act excluded from the jurisdiction of the adjudicator (and which consequently fell within the jurisdiction of the Commission) were to be read disjunctively:

    "Once the Secretary of State identified 'the public good' as being 'the interests of national security' as the basis of his decision, he cannot broaden his grounds to avoid difficulties which he may encounter in proving his case."

    The Court of Appeal's decision

    45. The Secretary of State appealed to the Court of Appeal [2000] 2 WLR 1240 under section 7 of the 1997 Act on the ground that the Commission had erred in law. The court (Lord Woolf MR, Laws LJ and Harrison J) allowed the appeal and remitted the appeal to the Commission for reconsideration in accordance with its judgment. Against that decision Mr Rehman appeals to your Lordships' House.

    46. The Court of Appeal identified three errors of law. First, it considered that the Commission had given too narrow an interpretation to the concept of national security. It did not think that a threat to national security had to be "targeted" against this country and it accepted Mr Wrench's evidence of the need for international co-operation against terrorism as a legitimate point of view. It was sufficient that there was a real possibility of adverse repercussions on the security of the United Kingdom, its system of government or its people.

    47. Secondly, the Commission should not have treated national security, international relations and other political reasons as separate compartments. Conduct which adversely affected international relations, for example, could thereby have adverse repercussions on security.

    48. Thirdly, it was wrong to treat the Home Secretary's reasons as counts in an indictment and to ask whether each had been established to an appropriate standard of proof. The question was not simply what the appellant had done but whether the Home Secretary was entitled to consider, on the basis of the case against him as a whole, that his presence in the United Kingdom was a danger to national security. When one is concerned simply with a fact-finding exercise concerning past conduct such as might be undertaken by a jury, the notion of a standard of proof is appropriate. But the Home Secretary and the Commission do not only have to form a view about what the appellant has been doing. The final decision is evaluative, looking at the evidence as a whole, and predictive, looking to future danger. As Lord Woolf MR said, at p 1254, para 44:

    "[T]he 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."

    49. My Lords, I will say at once that I think that on each of these points the Court of Appeal were right. In my opinion the fundamental flaw in the reasoning of the Commission was that although they correctly said that section 4(1) gave them full jurisdiction to decide questions of fact and law, they did not make sufficient allowance for certain inherent limitations, first, in the powers of the judicial branch of government and secondly, within the judicial function, in the appellate process. First, the limitations on the judicial power. These arise from the principle of the separation of powers. The Commission is a court, a member of the judicial branch of government. It was created as such to comply with article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmnd 8969). However broad the jurisdiction of a court or tribunal, whether at first instance or on appeal, it is exercising a judicial function and the exercise of that function must recognise the constitutional boundaries between judicial, executive and legislative power. Secondly, the limitations on the appellate process. They arise from the need, in matters of judgment and evaluation of evidence, to show proper deference to the primary decision-maker.

    The separation of powers

    50. I shall deal first with the separation of powers. Section 15(3) of the 1971 Act specifies "the interests of national security" as a ground on which the Home Secretary of State may consider a deportation conducive to the public good. What is meant by "national security" is a question of construction and therefore a question of law within the jurisdiction of the Commission, subject to appeal. But there is no difficulty about what "national security" means. It is the security of the United Kingdom and its people. On the other hand, the question of whether something is "in the interests" of national security is not a question of law. It is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.

    51. In Chandler v Director of Public Prosecutions [1964] AC 763 the appellants, campaigners for nuclear disarmament, had been convicted of conspiring to commit an offence under section 1 of the Official Secrets Act 1911, namely, for a purpose prejudicial to the safety or interests of the state to have entered a R.A.F. station at Wethersfield.

    They claimed that their purpose was to prevent nuclear bombers from taking off and wanted the judge or jury to decide that stopping the bombers was not at all prejudicial to the safety or interests of the state. They said that, on the contrary, the state would be much safer without them. But the House ruled that whether having nuclear bombers was conducive to the safety of the state was a matter for the decision of the executive. A court could not question it.

    52. Mr Kadri QC, who appeared for Mr Rehman, emphasised that section 4(1) of the 1997 Act gave the Commission the same full appellate jurisdiction as adjudicators had under the 1971 Act. But the question is not the extent of the Commission's appellate jurisdiction. It is whether the particular issue can properly be decided by a judicial tribunal at all. The criminal and appellate courts in Chandler v Director of Public Prosecutions had full jurisdiction over questions of fact and law in the same way as the Commission. The refusal of the House to re-examine the executive's decision that having nuclear bombers was conducive to the safety of the state was based purely upon the separation of powers. Viscount Radcliffe said, at p 798:

    "[W]e are dealing with a matter of the defence of the realm and with an Act designed to protect state secrets and the instruments of the state's defence. If the methods of arming the defence forces and the disposition of those forces are at the decision of Her Majesty's ministers for the time being, as we know that they are, it is not within the competence of a court of law to try the issue whether it would be better for the country that that armament or those dispositions should be different."

    53. Accordingly it seems to me that the Commission is not entitled to differ from the opinion of the Secretary of State on the question of whether, for example, the promotion of terrorism in a foreign country by a United Kingdom resident would be contrary to the interests of national security. Mr Kadri rightly said that one man's terrorist was another man's freedom fighter. The decision as to whether support for a particular movement in a foreign country would be prejudicial to our national security may involve delicate questions of foreign policy. And, as I shall later explain, I agree with the Court of Appeal that it is artificial to try to segregate national security from foreign policy. They are all within the competence of responsible ministers and not the courts. The Commission was intended to act judicially and not, as the European Court recognised in Chahal v United Kingdom 23 EHRR 413, to substitute its own opinion for that of the decision maker on "questions of pure expediency".

    54. This does not mean that the whole decision on whether deportation would be in the interests of national security is surrendered to the Home Secretary, so as to "defeat the purpose for which the Commission was set up": see the Commission's decision. It is important neither to blur nor to exaggerate the area of responsibility entrusted to the executive. The precise boundaries were analysed by Lord Scarman, by reference to Chandler's case in his speech in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 406. His analysis shows that the Commission serves at least three important functions which were shown to be necessary by the decision in Chahal. First, the factual basis for the executive's opinion that deportation would be in the interests of national security must be established by evidence. It is therefore open to the Commission to say that there was no factual basis for the Home Secretary's opinion that Mr Rehman was actively supporting terrorism in Kashmir. In this respect the Commission's ability to differ from the Home Secretary's evaluation may be limited, as I shall explain, by considerations inherent in an appellate process but not by the principle of the separation of powers. The effect of the latter principle is only, subject to the next point, to prevent the Commission from saying that although the Home Secretary's opinion that Mr Rehman was actively supporting terrorism in Kashmir had a proper factual basis, it does not accept that this was contrary to the interests of national security. Secondly, the Commission may reject the Home Secretary's opinion on the ground that it was "one which no reasonable minister advising the Crown could in the circumstances reasonably have held". Thirdly, an appeal to the Commission may turn upon issues which at no point lie within the exclusive province of the executive. A good example is the question, which arose in Chahal itself, as to whether deporting someone would infringe his rights under article 3 of the Convention because there was a substantial risk that he would suffer torture or inhuman or degrading treatment. The European jurisprudence makes it clear that whether deportation is in the interests of national security is irrelevant to rights under article 3. If there is a danger of torture, the Government must find some other way of dealing with a threat to national security. Whether a sufficient risk exists is a question of evaluation and prediction based on evidence. In answering such a question, the executive enjoys no constitutional prerogative.

 
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