House of Lords
|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
ON 11 OCTOBER 2001
 UKHL 47
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 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:
2. The appeal was heard both in open and in closed sessions. The Commission in its decision of 20 August 1999 held:
3. They then considered the allegations of fact and they said:
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:
5. They added:
6. The Secretary of State appealed. The Court of Appeal  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)
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:
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:
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  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:
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:
(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:
16. I accept as far as it goes a statement by Professor Grahl-Madsen in The Status of Refugees in International Law (1966):
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  3 WLR 1240, 1254, para 44 said:
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 discretionspecific 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  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.