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	England and Wales Court of Appeal (Civil Division) Decisions
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

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.