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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for the Home Department v Rehman [2000] EWCA Civ 168 (23 May 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/168.html
Cite as: [2000] EWCA Civ 168
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Case No: 1999/1268/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL
IMMIGRATION APPEAL COMMISSION
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 23 May 2000
MASTER OF THE ROLLS
LORD JUSTICE LAWS
and
MR JUSTICE HARRISON
- - - - - - - - - - - - - - - - - - - - -
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Appellant | |
- and - |
||
SHAFIQ UR REHMAN |
Respondent |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr Philip Sales and Mr Robin Tam (instructed by the Treasury Solicitors, London, SW1H 9JS, appeared for the Appellant)
Mr Sibghat Kadri QC and Mr Arthur Blake (instructed by Messrs Bhatti & Co, Manchester M13 0RX, appeared for the Respondent)
Mr Nicholas Blake QC (who appeared as Special Advocate for SIAC)
Mr Ian Macdonald QC (appeared as Amicus Curiae)
As Approved by the Court
Crown Copyright ©
LORD WOOLF MR :
1. This is a judgment of the court on the first appeal from a decision of the
Special Immigration Appeals Commission ("SIAC"). SIAC was established by the
Special Immigration Appeals Commission Act 1997. The decision of SIAC was
given on 7 September 1999. The SIAC allowed an appeal by Mr Shafiq Ur Rehman
against the decision of the Secretary of State for the Home Department to
refuse his application for indefinite leave to remain in the United Kingdom and
to make a deportation order. In a letter of 9 December 1998, the Secretary of
State wrote to the respondent giving his decision in these terms:
"Application for Indefinite Leave to Remain
I am writing with reference to your application for indefinite leave to remain
in the United Kingdom on the basis that you have spent a continuous period of
four years in the United Kingdom as a Minister of Religion.
The Secretary of State is satisfied that you have completed the requisite
period in permit free employment and has therefore gone on to consider your
application in the light of all the known circumstances. I must therefore
inform you that 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 Rishad (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).
Notice of intention to make a Deportation Order
The Secretary of State has decided that your 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.
Accordingly, he has decided to make a deportation order against you by virtue
of Section 3(5)(b) of the Immigration Act 1971, requiring you to leave the
United Kingdom and prohibiting you from returning while the order remains in
force. He proposes to give directions for your removal to Pakistan, the
country of which you are a national or which most recently provided you with a
travel document.
By virtue of Section 2(1)(c) of the Special Immigration Appeals Commission Act
1997 you are entitled to appeal against the decision to make a deportation
order against you on the grounds that your presence in this country is not
conducive to the public good in the interests of national security. At any
such appeal hearing the Special Immigration Appeals Commission would be
provided with details of the security case against you."
2. By letter of 17 February 1999 the Secretary of State corrected his previous
letter. In that letter he indicated that he had been in error in informing the
respondent that he had a right of appeal in relation to the refusal of his
application for indefinite leave to remain because the application was out of
time and subsequently withdrawn when the respondent travelled out of the United
Kingdom in October 1997. The Secretary of State did however reiterate that the
respondent had a right of appeal against his decision that the respondent be
deported.
3. The respondent appealled the decision to deport and it was in respect of
that appeal that SIAC gave its decision which gives rise to the appeal to this
court.
The Legislation
4. In order to understand the role of SIAC, it is necessary initially to start
with the Immigration Act 1971 ("the 1971 Act"). S.3 of the 1971 Act contains
the general provisions for regulation and control of immigration. S.3(5)
identifies who is liable to deportation. There are three categories of
individuals who can be liable for deportation. The power which is relevant is
contained in s.3(5)(b). The provision reads :
"(5) A person who is not [a British Citizen] shall be liable to deportation
from the United Kingdom ...
(b) if the Secretary of State deems his deportation to be conducive to the
public good; or ...."
5. If the Secretary of State is proposing to make a deportation order, the
first step is to make a decision to deport. The decision to deport is one in
relation to which there is normally an appeal under s.15 of the 1971 Act.
S.15(1)(a) states:
"(1) Subject to the provisions of this Part of this Act, a person may appeal
to an adjudicator against -
(a) a decision of the Secretary of State to make a deportation order against
him by virtue of section.3(5) above; or ..."
6. S.15(2) prevents a deportation order being made against the person by virtue
of S.3(5) so long as an appeal is being brought against the decision to make
it. This underlines the two-stage process. First the decision to make a
deportation order and then, if there is no successful appeal, the deportation
order. Once a deportation order has been made, there can be an appeal against
a refusal to revoke the deportation. There are however limitations both with
regard to who is entitled to appeal against a decision to make a deportation
order and who can appeal against a decision to refuse to revoke a deportation
order.
7. Here we are concerned with a decision to make a deportation order. The
limitation on such an appeal is expressed in these terms :
"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."
8. Although s.15(3) refers to three specific grounds why deportation can be
conducive to the public good, s.3(5) does not refer to those grounds. S.3(5)
is silent as to the circumstances which need to exist to make a deportation
because it is conducive to the public good to do so. The Secretary of State is
however required to give his reasons why he considers deportation to be
conducive to the public good and if he relies on "interests of national
security" etc. he brings into play s.15(3).
9. Although there was no appeal under the Immigration Act 1971 in s.15(3)
cases, there was a non-statutory advisory procedure which enabled those to whom
the section applied to appear before "the Three Advisors" and then make
representations to them. They then advised the Secretary of State as to
whether he should adhere to his decision. The question of whether this
non-statutory protection complied with the standards of the European Convention
on Human Rights was considered by the European Court of Human Rights in
Chahal v The UK [1997] 23 EHRR 413. In that case it was held that the
procedures did not do so as the advisory panel was not a "court" within the
meaning of Article 5 (4) ECHR and judicial review, where national security was
involved, did not provide an "effective remedy" within the meaning of Article
13. The court however recognised that the use of confidential material may be
unavoidable where national security is at stake and the European Court of Human
Rights was impressed by the fact that in Canada a more effective form of
judicial control had been developed for cases of this type.
10. The response of the government was to introduce the Special Immigration
Appeals Commission Act 1997 ("the 1997 Act"). The Act was clearly designed to
bring the United Kingdom into a position where it complied with its obligations
under the European Convention and to provide greater protection for individuals
who it is intending to deport on national security grounds.
11. S.1 of the 1997 Act establishes the Commission. Its membership is of
significance. One member has to have held high judicial office. One is or
has to have been the Chief Adjudicator or a legally qualified member of the
Immigration Appeal Tribunal. While there is no statutory restriction as to who
is to be the third member, in fact it has been indicated that the third person
will be someone who has experience of national security matters.
12. S.2 deals with the jurisdiction of the Commission. One situation in which
the jurisdiction exists is where a person would have been entitled to appeal
but for s.15(3). SIAC's task in relation to determining appeals is set out in
s.4(1) and (2) of the 1997 Act. S.4 so far as relevant provides :
"(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."
13. There are virtually identical provisions to the provisions of s.4(1) in
S.19(1) of the Immigration Act 1971. S.19 of the 1971 Act deals with appeals
to adjudicators, inter alia, in those cases where s.15(3) does not apply. S.19
of the 1971 Act differs from s.4 of the 1997 Act in that the former expressly
sets out the powers of an adjudicator on an appeal under the 1971 Act to
review a question of fact and deals with cases where the Secretary of State is
asked to depart from the rules. This is not reproduced in s.4. This
difference is of no relevance here. However, it is not in issue that SIAC can
review questions of fact.
14. S.5 of the 1997 Act gives the Lord Chancellor wide powers to make rules for
regulating the exercise of the rights of appeal. The rule making power enables
the Lord Chancellor to make the most satisfactory arrangements practical to
deal with the tension which will inevitably arise in cases involving national
security between the rights of the individual and the need to maintain the
confidentiality of security information. The 1997 Act provides for the
appointment of a special advocate in accordance with s.6. He is able to
represent the appellant before SIAC during those parts of the proceedings from
which the appellant and his legal representatives are excluded. In order to
perform this purpose, the special advocate will usually be present during the
entire proceedings and not only the closed sessions. This means that in
practice an appellant will have two sets of legal representatives. Those of
his own choice can represent him during open sessions and in private sessions,
that is sessions during which the public are excluded but not the appellant,
and the special advocate in closed sessions, where the information is of a
category which it is necessary to keep confidential from the appellant, and the
appellant is not present.
15. S.7 of the 1997 Act gives "any party" the right to bring a
further appeal "on any question of law material" to SIAC's
determination. The appeal is either with the leave of SIAC or the Court
of Appeal. In the case of the present appeal SIAC refused leave to appeal and
Sir Anthony McCowan gave leave.
16. The rules which it was anticipated by the 1997 Act would be made have been
made. They are the Special Immigration Appeals Commission (Procedure) Rules
1998 ("the Rules"). It is not necessary to refer to any of the provisions of
the Rules. It is, however, Rule 7 which places restriction upon what the
Special Advocate can communicate to an appellant who is appealing to SIAC.
The Decision of SIAC
17. Mr Shafiq Ur Rehman's appeal was heard by Mr Justice Potts, His Honour
Judge Pearl and Sir Brian Barder KCMG. The members of SIAC who heard the
appeal were singularly well-qualified to do so. Potts J is a judge of very
broad experience. Judge Pearl until fairly recently was the Chief Immigration
Adjudicator. Sir Brian has considerable experience of security matters.
The Facts
18. The factual background of this appeal is succinctly summarised by SIAC in
its ruling and I gratefully adopt this account.
"The Appellant is a Pakistani national, born on 2 June 1971 in Mian Channu,
Pakistan. He is married to Hashmad Bibi by whom he has two children both born
in the United Kingdom. The Appellant's father and mother came to the United
Kingdom in 1988; both hold British citizenship. His father is a Minister of
Religion at the Halifax Mosque, Halifax, Yorkshire.
Other members of his immediate family all live in the United Kingdom. The
Appellant matriculated from Rawalpindi Board in Pakistan in 1988. He studied
at the Jamiah Salsiah, Islamabad, Pakistan until March 1992, when he was
awarded a Masters Degree in Islamic Studies. Thereafter he taught at Jamiah
Salsiah until January 1993. The Appellant originally applied to come to the
United Kingdom in 1990 as a dependant of his father. However, as he was over
the age of 18, his entry clearance application was refused. He was
subsequently issued with an entry clearance on 17 January 1993 to enable him to
work as a Minister of Religion with the Jamait Ahele-e-Hadith (JAH) in Oldham.
He arrived in the United Kingdom on the 9 February 1993. He was subsequently
granted further leave to remain until 9 February 1997 in order to complete four
years as a Minister. On 3 March 1997, the Appellant made an out-of-time
application for indefinite leave to remain in the United Kingdom. In October
1997, the Appellant was granted leave to remain until 7 January 1998 to enable
him and his family to travel to Pakistan on holiday. On his return to the
United Kingdom on 4 December 1997 at Manchester Airport he was detained and was
interviewed by Special Branch Officers and seen by an Officer of the Security
Service.
By letter dated 9 December 1998 the Appellant's application for indefinite
leave to remain in the United Kingdom was refused."
19. The appellant gave notice of appeal on 10 December 1998.
20. For the purpose of the appeal the Secretary of State made an "open"
statement of his case in accordance with rule 10(1) of the Rules. I refer to
the relevant parts of that statement as amended by counsel for SIAC at the
conclusion of the evidence. It alleged that Shafiq Ur Rehman is the United
Kingdom point of contact of "Markaz Dawa Al Irshad" ("MDI"). MDI is an Islamic
extremist organisation whose mujahidin fighters are known as the "Lashkar
Taiyyaba" ("LT"). On MDI's behalf, Ur Rehman has been involved in the
recruitment of British Muslims to undergo military training and in fund-raising
for LT. Ur Rehman is a personal contact of Mohammad Saeed, the world-wide
leader of MDI and LT. It was the security service assessment that Ur Reham's
activities directly support a terrorist organisation. The statement continued
:
"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 only been partly
responsible for an increase in the number of Muslims in the United Kingdom who
have undergone some form of military training, including indoctrination into
extremist beliefs and at least some basic weapons handling. The Security
Service is concerned that the presence of returned jihad trainees in the UK may
encourage the radicalisation of the British Muslim community. His activities
in the United Kingdom are intended to further the cause of 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 UK on the grounds that his presence here is not conducive to
the public good for reasons of national security."
21. By his grounds of appeal the Appellant denies that JAH, by whom he is
employed as a Minister of Religion, is in any way linked to LT. Further he
contends:
"3. The Secretary of State is wrong to assert that the Appellant is the leader
of MDI in the United Kingdom. The Appellant did attend the MDI conference in
Pakistan and he spoke about the welfare, educational and religious work done by
him and the organisation which employs him in the United Kingdom (JAH).
4. The Secretary of State is wrong to assert that the Appellant has raised
funds for the Mujahiden or recruited any British Muslims to undergo any
militant training in the Indian sub-continent. The only funds that he has
raised were for the purpose of supporting educational and welfare projects in
Pakistan. The Appellant is not aware that these funds were used for military
operations in the Jihad.
5. The Appellant's activities in the United Kingdom do not support terrorism
in the Indian sub-continent. He had never been involved in any weapons
handling. Neither he nor, to his knowledge, any of his supporters have ever
been involved in any weapons training or handling....
7. The Appellant supports the cause of the people of Kashmir but does not and
never has supported any terrorist organisation which relies on violence to
achieve its aims.
8. The Secretary of State has misconstrued his powers of deportation on the
basis of national security. This should be construed strictly and narrowly.
9. The Appellant submits that the power to deport is limited to activities
which have a direct bearing on the national security of the United Kingdom and
not of any foreign government."
The Hearing Before SIAC
22. Part of the hearing before SIAC was open to the public in the normal way.
Part was held in private and part was held in closed session. During the
hearings in public and in private, Mr Shafiq Ur Rehman was represented by Mr
Kadri QC. During the closed session Mr Nicholas Blake QC was the special
advocate. SIAC held two hearings of the appeal. At the first the Secretary of
State was represented by Mr Philip Sales. At the second the Secretary of State
was represented by Miss Sharpston QC and Mr Tam. In their submissions to SIAC
there was a difference in emphasis between Miss Sharpston and Mr Sales.
23. Miss Sharpston's submissions were influenced by the traditional approach of
the courts to issues as to national security. She with justification submitted
that it was well established that the courts have always accepted that what
constitutes a danger to national security is a matter for the Government and
not a matter in relation to which the courts would intervene. She submitted
that it was "quintessentially not a matter for SIAC". SIAC like the courts
"may examine the types of activity which the Secretary of State regards as
constituting a threat to national security in order to satisfy itself that the
policy which has been adopted is not unlawful in the Wednesbury sense" but that
is the limit to SIAC's role. The 1997 Act permitted SIAC to review the factual
allegations which were made but not the policy aspects of national security
with which it was wholly inapt to deal.
24. On the other hand Mr Sales accepted before SIAC, that SIAC was entitled to
substitute its own view for that of the Secretary of State, but that "in
assessing a risk to national security the views of the Executive (based as they
are on detailed expert knowledge of terrorism, derived from study of the
problem over many years) are entitled to considerable weight.
25. Both Mr Kadri and Mr Blake submitted that the three reasons for deeming a
person's deportation to be conducive to the public good under s.15(3) are
mutually exclusive and should be read disjunctively. The Secretary of State
had relied solely upon the ground of national security and he could not
therefore justify his decision basing himself upon damage which might be done
to relations between this country and any other country. Nor had any other
reasons of a political nature been asserted. Mr Blake also submitted that no
case had been advanced or even argued that MDI :
"(i) threatens the economic well being of the State;
(ii) threatens to undermine Parliamentary democracy in the UK by any means;
(iii) is itself a foreign power intent on occupation, invasion, espionage, or
attack on British interests here or abroad;
(iv) ... even if MDI is terrorist there is no terrorism directed at the realm
that encompasses the physical safety of all residents of the UK, their
property, and their safety and interests abroad;
(v) the concept of threat, danger, defence of the realm all require actions to
be targeted at the United Kingdom its government and its people, and that
expulsion of the appellant would protect against this threat."
26. SIAC rejected the approach of Miss Sharpston. They regarded it as their
responsibility to construe the expression national security. They considered
that it would defeat the purpose for which SIAC was set up if it was not able
to decide both the issues of law and fact which were before them. They also
accepted Mr Kadri and Mr Blake's submission that s.15(3) of the 1971 Act should
be read disjunctively. They considered that "national security" should be
construed narrowly and not in the way contended for by the Secretary of State.
They derived assistance from the speech of Lord Diplock in CCSU v Minister
for the Civil Service [1985] AC 374 at p.410 A-C and the judgment of Lord
Denning MR in R v Secretary of State for Home Affairs ex parte Hosenball
[1977] 1 WLR 766 at p.778 D-H and p.783 F-H. They also "noted" a statement
which they recognised was obiter, by Lord Justice Staughton in Chahal v
Secretary of State for the Home Department [1995] 1 WLR 526 at p.531 H. In
his judgment Lord Justice Staughton expressed doubt as to whether supporting
terrorism in India could affect the national security of this country.
27. SIAC found a passage in a book by Professor Gtahl-Madsen in his book "The
Refugee in International Law" (1966), "particularly helpful". The passage is
in the following terms :
"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."
28. SIAC concluded :
"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." (emphasis added)
29. SIAC indicated that as to issues of fact, their approach was as follows
:
"... 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."
30. Applying the standard of a "high civil balance of probabilities" SIAC
reached the following conclusion on the issues of fact :
"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 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.
As to the Appellant's activities in sponsoring Pakistanis to enter the United
Kingdom by assisting them to make visa applications, we would say only that
nothing the Appellant has been proved to have done in this respect could be
said to constitute a threat to national security as defined. As for the
Respondent's assertion that the Appellant's future behaviour, if he is not
deported, is likely to threaten national security, we have heard and seen no
evidence that supports such a prediction. Indeed, if anything, the balance of
the evidence has been to the opposite effect. In any case, in view of our
findings the Appellant has not been proved to have acted in the past in such a
way as to cause a threat or damage to national security. We are not satisfied
on the evidence that his future behaviour is likely to constitute such a threat
or to cause such damage.
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 Pakistan 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."
The Secretary of State's Appeal
31. Mr Philip Sales and Mr Robin Tam appeared on behalf of the Secretary of
State on this appeal. Mr Kadri appeared on behalf of Mr Shafiq Ur Rehman. As
it was possible that part of the hearing would have to be in closed session, Mr
Blake appeared at the request of the court. The 1997 Act makes no provision
for a special advocate on an appeal. However, it seemed to us that, if it was
necessary for the court in order to dispose justly of the appeal to hear
submissions in the absence of Mr Shafiq Ur Rehman and his counsel, under the
inherent jurisdiction of the court, counsel instructed by the Treasury
Solicitor, with the agreement of the Attorney General, would be able to perform
a similar role to a special advocate without the advantage of statutory backing
for this being done. A court will only hear submissions on a substantive
appeal in the absence of a party in the most extreme circumstances. However,
considerations of national security can create situations where this is
necessary. If this happens, the court should use its inherent power to reduce
the risk of prejudice to the absent party so far as possible and by analogy
with the 1997 Act, Mr Blake could certainly then have provided assistance.
32. The court also was initially of the opinion that it would be appropriate
for Mr Blake to act as an Amicus. Accordingly the Attorney General was invited
to appoint him in that capacity. However, for understandable reasons the
Attorney General did not feel this would be appropriate because a special
advocate is not neutral but intended to advance the case of the absent party.
The Attorney General therefore instructed Mr Ian Macdonald QC to appear as
Amicus and we are grateful to the Attorney General for enabling both Mr Blake
and Mr Macdonald to appear. We were greatly assisted by Mr Macdonald's
argument. In the event we were able to conduct the appeal in public in the
ordinary way and so it was not necessary for Mr Blake to address us. We did
however have the advantage of his written submissions. Mr Sales arguments
before us on behalf of the Secretary of State can be considered under four
heads which we will deal with in turn.
National Security
33. The correctness of SIAC's approach as to what is capable of being regarded
as a threat to national security is the most important issue on this appeal.
SIAC acknowledged they were adopting a narrow interpretation. They were
influenced in doing so by the alternative grounds set out in s.15(3) of the
1971 Act. The use by SIAC of the word "targeted" clearly indicates that SIAC
considered the conduct relied on had to be directed against the United Kingdom.
Mr Macdonald initially in his skeleton argument was minded to accept the
correctness of SIAC's approach. However, in the course of this hearing and in
his oral submissions he accepted that the approach which SIAC adopted was too
restrictive.
34. It cannot be the case that if a course of conduct would adversely reflect
on the security of this country, it is not open to the Secretary of State to
regard the person's presence in this country as not being conducive to the
public good because the target for the conduct is another country. 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. The evidence
before SIAC, by Mr Wrench, a senior civil servant in the Home Office and head
of the terrorism and protection unit, in the form of a note, makes the position
clear. I refer by way of illustration to three paragraphs of his note in
support of what I regard as a justification for a wider approach than that
adopted by SIAC :
"2. Successive Governments in this country have consistently condemned
terrorism in all its forms, wherever, whenever and for whatever motive it is
committed. The United Kingdom works in a wide range of international fora -
including the United Nations, the G8 and the European Union - to encourage
collective condemnation of terrorism and effective practical action against it.
The direct threat from international terrorism to the United Kingdom, and to
British interests in other countries, including the millions of British
citizens travelling or working abroad, is one reason for that policy. British
citizens have been attacked, taken hostage and murdered by terrorists overseas.
The objectives of such terrorists may or may not be to damage the national
security of the United Kingdom, but the effect is to harm individuals for whom
Her Majesty's Government has a worldwide consular responsibility....
4. An important part of the Government's strategy to protect the UK and UK
citizens and interests abroad from the terrorist threat is to foster
co-operation between states in combating terrorist groups whatever their
objectives. The UK can only expect other states to take measures to combat
terrorists who target the UK or UK citizens if the UK, for its part,
reciprocates by combating terrorists who target states other than the UK. It
cannot be predicted when such ties of reciprocity may prove to be critical to
protecting national security from, eg, a terrorist bombing campaign. It is
therefore essential in the interests of national security that the UK fosters
such ties with as many states as possible now, against the day when any of them
may be able to act directly to safeguard the UK's security interests (whether
by taking measures against terrorists in their own territory, or by providing
the UK with intelligence about proposed terrorist activity).
5. In Lord Lloyd's report on the future need for counter-terrorist legislation
published in October 1996 (Cm 3420) he said :
"A country which seeks to protect itself against international terrorism will
not succeed if its defences are confined to its own soil. The activities of
international terrorists abroad, whether or not British interests are directly
affected, are of concern to the Government because Government's policy must be,
and is, that the UK should take an active part in securing international
co-operation in fighting terrorism." (para. 2.4)
35. Mr Sales correctly submitted that "national security" is a protean concept,
"designed to encompass the many, varied and (it may be) unpredictable ways in
which the security of the nation may best be promoted."
36. Although not binding upon us, we would adopt the approach of Auld LJ on a
renewed application for judicial review in Raghbit Singh [1996] Imm AR
507 at p.511 when he said :
"As to "national security", as Laws J pointed out in his judgment, all sorts
of consequences may flow from the very existence of terrorist conspiracies or
organisations here, whether or not their outcome is intended to occur abroad.
Who knows what equally violent response here this sort of conduct may
provoke?"
37. We would also refer to a short passage in a speech of Lord Mustill in T
v The Home Secretary [1996] AC 742 761 F-H where he said :
"Not all refugees were worthy of compassion and support. As Article 1F of the
Convention recognised, war criminals and offenders against the laws of nations
could properly be sent home to answer for their crimes. ..... Another, and
rather different, impulse was also opposed to the universal reception of
refugees; namely the acknowledgement that terror as a means of gaining what
might loosely be described as political ends posed a danger not only to
individual states but also to the community of nations."
38. At the conclusion of the argument we invited counsel to submit a definition
of national security. Mr Macdonald provided the following definition :
"In alleged terrorist cases, a person may be said to be a danger to the United
Kingdom's national security if he or she engages in, promotes or encourages
violent activity which has, or is likely to have, adverse repercussions on the
security of the United Kingdom, its system of government or its people."
39. We regard this as being a generally helpful approach but it is not
conclusive or exhaustive. It first of all recognises that what can be regarded
as affecting national security can vary according to the danger being
considered. Mr Macdonald wisely confined his definition to cases involving
terrorism. We also approve the reference which is made in the definition to
there having to be adverse repercussions on the security of this country. The
repercussions can be direct or indirect. Mr Macdonald indicated that he
considered that the adverse repercussions had to be "likely". We consider that
it is sufficient if the adverse repercussions are of a kind which create a risk
of adverse repercussions. As long as there is a real possibility of adverse
repercussions, then the degree of likelihood only becomes important when the
Secretary of State has to weigh up against the risk of adverse repercussions
the adverse effect of deportation on the immigrant.
40. As to the three situations referred to in s.15(3) of the 1971 Act, while it
is correct that they are alternatives, there is clearly room for there to be an
overlap. Here if there were terrorist activities to which Mr Shafiq Ur Rehman
was giving encouragement, which were directed against India's links with
Kashmir, then the involvement of individuals coming from this country could
damage relations between this country and India. However, the fact that the
conduct could have an adverse affect on our relationship with a friendly state
does not mean that the activities could not also have national security
consequences. The promotion of terrorism against any state is capable of being
a threat to our own national security. 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.
41. It follows that the approach of SIAC was flawed in so far as it required
the conduct relied on by the Secretary of State to be targeted on this country
or its citizens.
Standard of Proof
42. SIAC were, however, correct to regard it as being their responsibility to
determine questions of fact and law. 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.
43. The fact that SIAC is entitled to determine for itself issues of fact, does
not assist as to the standard of proof which it should apply when doing so.
SIAC accepted that the views of the Secretary of State as to what was conducive
to the public good for reasons of national security should be given
considerable weight. It was right to do so because questions of policy in this
area must primarily be for the Secretary of State. The Executive is bound to
be in a better position to determine what should be the policy to adopt on
national security than any tribunal no matter how eminent. However, having
acknowledged that the Executive's assessment is entitled "to considerable
weight", SIAC then identified five specific allegations made by the Secretary
of State and came to the conclusion, applying a high civil balance of
probabilities, they were not satisfied that the case against Mr Shafiq Ur
Rehman had been made out. On one approach to the issue which was before them,
the standard applied by SIAC was perfectly appropriate. In so far as the
Secretary of State was relying on specific allegations of serious misconduct by
Mr Shafiq Ur Rehman, then SIAC was entitled to say the allegations had not been
proved.
44. 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. 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. There are statements made by SIAC in its
decision indicating that even if they had accepted the Secretary of State's
submissions as to the correct approach they would have come to the same
conclusion, However SIAC's approach in general was so different from that of
the Secretary of State and different from that which we have indicated is the
correct approach, again we come to the conclusion that SIAC's decision has to
be regarded as flawed.
The Reasons
45. Rule 23(1) of the SIAC rules reads :
"23(1) The Commission must record its determination and, if and to the extent
it is possible to do so without disclosing information contrary to the public
interest, the reasons for it."
46. The Secretary of State submits that as a matter of law and as a matter of
good sense, SIAC should give full reasons why an appeal fails, subject to a
reduction in the version given to the appellant to take account of the need to
protect sensitive sources of information.
47. Mindful of the need to protect sensitive information, SIAC did not in its
reasoning analyse the factual evidence. It considered, however, that it was
fairer and more sensible to produce only one version of its decision, a version
which could be appropriately shown to Mr Shafiq Ur Rehman. There are obvious
disadvantages in having two versions in existence of the decision and having
regard to the Rules, we regard the course which was adopted by SIAC as being
wholly appropriate. In this case SIAC was able to give a reasoned decision
which did not offend Rule 23(1) and which fully explained the basis of the
decision. No more was required.
Conduct of the Hearing before SIAC
48. A full consideration of this issue on the appeal would at least have
required the Court of Appeal to go into closed session. This would not have
been desirable. In any event it is doubtful whether an issue of this sort
falls within s.7(1) of the 1997 Act as a question of law material to the
determination.
49. Mr Sales, in view of the reluctance of the court to go into private
session, did not press this ground of appeal. That was appropriate. While we
are not in a position to express any view as to how the case was conducted
before SIAC, we do point out the obvious need for counsel appearing before SIAC
to be extremely careful, consistent with their duty to their client, not to ask
any questions during parts of the hearing which are open to the public which
could directly or indirectly reveal sensitive information. Unless the
advocates behave in that way, more of the hearing will either have to be held
in private or in closed session than would otherwise be the case and this is
not in the interest of justice. Before leaving this subject it is right that
we should make clear that we understand from Mr Kadri that SIAC rejected any
criticism of the manner in which he conducted the case.
50. For reasons we have indicated, the appeal will be allowed and remitted to
SIAC for re-determination applying the approach indicated in our judgment.
(1)
(2)
(3)
(4)
(Order does not form part of the approved judgment)