Secretary of State for the Home Department v Rehman
| Jurisdiction | England & Wales |
| Judgment Date | 23 May 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0523-14 |
| Docket Number | Case No: 1999/1268/C |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 2000 |
[2000] EWCA Civ J0523-14
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
Master Of The Rolls
Lord Justice Laws and
Mr Justice Harrison
Case No: 1999/1268/C
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)
LORD WOOLF MR :
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."
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.
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
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 …."
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 …"
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.
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."
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).
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.
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.
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.
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...
To continue reading
Request your trial
-
R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No. 2)
...... In the light of the US Department of Justice memoranda issued between 2002 and 2005 and released on April 16, 2009, which set out ......
-
Bank Mellat v HM Treasury
...required to do, by very close analogy, by the observations of the House of Lords in relation to national security in Secretary of State for the Home Department v Rehman [2003] 1 AC 153. By analogy with the margin of appreciation afforded by the Strasbourg courts to national political author......
- Kalman v Information Commissioner and another
-
Serious Organised Crime Agency v Gale and another
...manner. But the question is always whether the tribunal thinks it more probable than not'” (para 9, quoting Secretary of State for the Home Department –v- Rehman [2003] 1 AC 153 para 55, per Lord Hoffmann). 31 Although that appears an impeccable summary of the law on the basis of the argume......
-
The Anti–Terrorism, Crime and Security Act 2001: A Proportionate Response to 11 September?
...ex parte Kebeline [1999] 3 WLR 372; Secretary of State for the Home Dept ex parteRehman [2001] 3 WLR 877.98 [2001] 3 WLR 877, HL; [2000] 3 All ER 778, CA; [1999] INLR 517 (SIAC).99 As the Opinion for JUSTICE pointed out, the fact that a state of emergency could be viewed ascurrently in bein......