D8 v Secretary of State for the Home Department

Hearing dates: 9 & 10 December 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 22 January 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

This is an appeal by the Secretary of State against the decision of the Special Immigration Appeals Commission (‘SIAC’) that her revocation of the respondent's refugee status and refusal of a further application for refugee status on the ground of national security were unlawful. The basis of SIAC's decision was that, even though the Secretary of State had determined that the respondent is a danger to national security, she had failed to balance the degree of such danger against the cost, practicability and feasibility of any measures that might be taken to ameliorate the risk and had failed to demonstrate that revocation of refugee status was a measure of last resort.

The Secretary of State submits on this appeal that there is no requirement that she carry out such an exercise, which I shall call ‘the balancing exercise’. Once she has concluded that a refugee is a danger to national security, she is entitled to revoke his refugee status.

I accept that submission and would therefore allow the appeal.

This is an OPEN judgment. SIAC produced both OPEN and CLOSED judgments. We have not been shown the CLOSED judgment or the CLOSED material on which it was based. Neither party suggested that it was necessary for us to see this in order to decide the question of law raised by this appeal.

The facts

A detailed factual account is set out in SIAC's OPEN judgment. For the purpose of this appeal the following short summary will suffice.

The respondent (‘D8’), now in his 30s, is an Iranian national of Kurdish ethnicity. He is a Sunni Muslim. In January 2016 he left Iran and travelled to the United Kingdom via Turkey, arriving here clandestinely in a lorry on 17 ^th February 2016. He claimed asylum. His application was refused, but on 30 ^th March 2017 an appeal to the First Tier Tribunal succeeded. The FTT did not believe D8's account of the circumstances in which he had left Iran, and concluded that his posting of anti-Iranian material on his Facebook account and attendance at pro-Kurdish rallies in this country was ‘opportunistic’, but nevertheless decided that D8 would be at real risk of persecution if returned to Iran.

The Secretary of State did not appeal this decision and, on 23 ^rd April 2017, granted D8 five years' leave to remain as a refugee. He was provided with a travel document valid until 22 ^nd April 2022.

In February 2020 D8 travelled to the Kurdish region of Iraq. What he did next was in dispute before SIAC, and was the subject of CLOSED material, but SIAC's OPEN finding was that D8 was in Iran between (at the latest) 5 ^th March 2020 and late April or early May 2020.

On 2 ^nd April 2020 the Secretary of State personally directed that D8 be excluded from the United Kingdom on the basis that his presence was not conducive to the public good for reasons of national security. This was based on a national security assessment by the Security Service and was because of D8's Islamist mindset and support for the Islamic State. On 24 ^th April 2020 D8 was sent a letter notifying him of the Secretary of State's intention to revoke his refugee status and his leave to remain was cancelled. As he was not present in the United Kingdom, there was at this time no question of any decision to return ( refoule) him to Iran.

D8's refugee status was formally revoked on 15 ^th October 2020. This is the first decision which D8 challenged before SIAC with which we are concerned.

On 23 ^rd March 2021 D8 returned illegally to the United Kingdom on a small boat from France and was detained. He claimed asylum. This claim was refused on 8 ^th July 2022 on national security grounds. This is the second decision with which we are concerned. On this occasion, because D8 was present in the United Kingdom and because the Secretary of State's position was that he had returned voluntarily and openly to Iran in 2020 without adverse consequences, and had thereby re-availed himself of the protection of Iran, the Secretary of State decided that he should be returned to Iran. However, at the hearing before SIAC the Secretary of State conceded that if she failed to prove that D8 had returned openly to Iran, it would not be safe to return him there. There was considerable CLOSED evidence about this, but having considered that evidence, SIAC found that the Secretary of State had failed to prove that D8 returned openly to Iran. That finding has not been challenged on this appeal. Accordingly, this issue no longer arises.

Indeed, as SIAC found that D8 would face at least a real risk of torture if returned, contrary to Article 3 ECHR, and even the risk of a violation of his right to life under Article 2 ECHR, there is now no question of him being returned. Thus, whatever the outcome of this appeal, the Secretary of State accepts that some form of leave to remain will have to be granted to D8.

The legal framework

In order to understand how the issue arises it is necessary to travel through a variety of legislative and judicial decisions.

The Refugee Convention

The 1951 Geneva Convention relating to the Status of Refugees as amended by the 1967 New York Protocol defines a refugee as a person who is outside the country of his nationality and who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is unwilling to avail himself of the protection of the country of his nationality. Article 33 of the Convention provides as follows:

‘ PROHIBITION OF EXPULSION OR RETURN (“ REFOULEMENT”)

1. No Contracting State shall expel or return (“ refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.’

The principle of non-refoulement in Article 33(1) is described by the United Nations High Commissioner for Refugees as ‘the cornerstone of the international refugee protection regime’ which (it says 1) is binding on all states as a matter of customary international law, including those which are not parties to the Convention (UNHCR Guidance Note of April 2008, para 8). However, the principle is subject to Article 33(2), which contemplates that a refugee may be refouled, despite what is ex hypothesi his well-founded fear of persecution, if there are reasonable grounds for regarding him as a danger to national security. What this means is explained in the UNHCR Guidance Note:

‘14. The application of this provision requires an individualized determination by the country of asylum that the following criteria in relation to the exceptions to the principle of non-refoulement are met:

(i) For the “security of the country” exception to apply, it must be established that the refugee poses a current or future danger to the host country. The danger must be very serious, rather than of a lesser order, and must constitute a threat to the national security of the host country. …’

Footnote 15, referring to the discussions in the drafting of the Convention, adds that:

‘Generally speaking, the “security of the country” exception may be invoked against acts of a rather serious nature, endangering directly or indirectly the constitution, government, the territorial integrity, the independence, or the external peace of the country concerned.’

Although this footnote refers to ‘acts’, it is clear that the concept of ‘danger to the security of the country’ includes the risk of future acts as well as those which have already been committed.

The 2008 Guidance also states that:

‘15. As exceptions to the non-refoulement protection of the 1951 Convention, a restrictive application requires that there be a rational connection between the removal of the refugee and the elimination of the danger resulting from his or her presence for the security or community of the host country. A restrictive application also means that refoulement should be the last

possible resort for eliminating the danger to the security or community of the host country. Additionally, the danger for the host country must outweigh the risk of harm to the wanted person as a result of refoulement.

16. The provisions of Article 33(2) of the 1951 Convention do not however affect the requested State's non-refoulement obligations under international human rights law, which permit no exceptions …’

Footnote 17 adds that:

‘If less serious measures would be sufficient to remove the threat posed by the refugee to the security or the community of the host country, refoulement cannot be justified under Article 33(2) of the 1951 Convention.’

Further Guidance...