Secretary of State for the Home Department v Rehman

JurisdictionUK Non-devolved
JudgeLORD SLYNN,LORD STEYN,LORD HOFFMANN,LORD CLYDE,LORD HUTTON
Judgment Date11 October 2001
Neutral Citation[2001] UKHL 47
CourtHouse of Lords
Date11 October 2001
Secretary of State for the Home Department
(Respondent)
and
Rehman (AP)
(Appellant)

[2001] UKHL 47

Lord Slynn of Hadley

Lord Steyn

Lord Hoffmann

Lord Cyde

Lord Hutton

HOUSE OF LORDS

LORD SLYNN

My Lords,

1

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

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

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

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

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

2

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

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

3

They then considered the allegations of fact and they said:

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

4

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

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

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

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

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

5

They added:

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

6

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

7

The Court of Appeal in its judgement has fully analysed in detail the provisions of the Immigration Act 1971, the 1997 Act and the 1998 Rules. I adopt what the court has said and can accordingly...

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