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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> D8 v Secretary of State for the Home Department [2025] EWCA Civ 33 (22 January 2025) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2025/33.html Cite as: [2025] WLR(D) 41, [2025] EWCA Civ 33 |
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ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
Mr Justice Jay, Upper Tribunal Judge Lindsley & Sir Stewart Eldon
[2023] UKSIAC 1
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE PHILLIPS
and
LADY JUSTICE ELISABETH LAING
____________________
D8 |
Respondent |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Appellant |
____________________
Hugh Southey KC and Alex Burrett (instructed by JD Spicer Zeb Solicitors) for the Respondent
Hearing dates: 9 & 10 December 2024
____________________
Crown Copyright ©
LORD JUSTICE MALES:
The facts
The legal framework
The Refugee Convention
'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.'
'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. …'
'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.'
'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 …'
'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.'
'For the "security of the country" exception to the principle of non-refoulement to apply, there must be an individualized finding 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 it must be a threat to the national security of the host country. Generally speaking, the "security of the country" exception may be invoked against acts of a serious nature, which endanger directly or indirectly the constitution (Government), the territorial integrity, independence or the external peace of the country concerned. The finding of dangerousness must be based on reasonable grounds and therefore supported by credible and reliable evidence.'
'The Application of Article 33(2) Must Be Necessary and Proportionate
The application of the exception in Article 33(2) to States' non-refoulement obligations, like any exception to human rights guarantees, must be interpreted restrictively and with full respect to the principle of proportionality. The removal of a refugee in application of one of the exceptions provided for in Article 33(2) is lawful only if it is necessary and proportionate. This means that:
i) there must 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;
ii) refoulement must be the last possible resort for eliminating the danger to the security or community of the host country – if less serious measures, including, for example, expulsion to a third country where there is no risk of persecution, 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; and
iii) the danger for the host country must outweigh the risk of harm to the wanted person as a result of refoulement.'
'Nothing in the immigration rules (within the meaning of the [Immigration Act 1971]) shall lay down any practice which would be contrary to the [Refugee] Convention.'
'(1) Articles 1(F) and 33(2) of the Refugee Convention (exclusions: war criminals national security, &c.) shall not be taken to require consideration of the gravity of—
(a) events or fear by virtue of which Article 1(A) would or might apply to a person if Article 1(F) did not apply, or
(b) a threat by reason of which Article 33(1) would or might apply to a person if Article 33(2) did not apply.'
'(1) No State Party shall expel, return ("refouler") or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.'
The Qualification Directive
'Article 13
Granting of refugee status
Member States shall grant refugee status to a third country national or a stateless person, who qualifies as a refugee in accordance with Chapters II and III.
Article 14
Revocation of, ending of or refusal to renew refugee status
…
4. Member States may revoke, end or refuse to renew the status granted to a refugee by a governmental, administrative, judicial or quasi-judicial body, when:
(a) there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present;
(b) he or she, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that Member State.
5. In situations described in paragraph 4, Member States may decide not to grant status to a refugee, where such a decision has not yet been taken.
6. Persons to whom paragraphs 4 or 5 apply are entitled to rights set out in or similar to those set out in Articles 3, 4, 16, 22, 31 and 32 and 33 of the Geneva Convention insofar as they are present in the Member State.'
'Article 21
Protection from refoulement
1. Member States shall respect the principle of non-refoulement in accordance with their international obligations.
2. When not prohibited by the international obligations mentioned in paragraph 1, Member States may refoule a refugee, whether formally recognised or not, when:
(a) there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present;
(b) he or she, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that Member State.
3. Member states may revoke, and will refuse to renew or to grant the residence permit of (or to) a refugee to whom paragraph 2 applies.
'Article 24
Residence permits
1. As soon as possible after their status has been granted, Member States shall issue to beneficiaries of refugee status a residence permit which must be valid for at least three years and renewable unless compelling reasons of national security or public order otherwise require, and without prejudice to Article 21(3). …'
'68. Articles 21(2) and 24(1) of [the Qualification] Directive constitute in that regard the implementation in positive law of the rights conferred on every person by EU law with a view to ensuring lasting protection for him or her against persecution. Those two provisions are, however, part of Chapter VII of the same Directive, entitled "Content of international protection", the purpose of which is to define the benefits which candidates for refugee or subsidiary protection status, whose claims have been upheld, may enjoy.
69. Even though, as has been found in para 50 above, there is more than a little overlap between article 21(2) and (3) of Directive 2004/83 and article 24(1) of that Directive, since both provisions concern the possibility offered to member states to refuse to grant a residence permit, to revoke it, to end it or to refuse to renew it, but also complementarity between them, it is nevertheless settled that those provisions have distinct scopes and pertain to different legal regimes.
70. Article 21(1) of Directive 2004/83 lays down the principle that refugees are normally protected from refoulement. However, article 21(2) of that directive provides a derogation from that principle, by permitting refoulement of a refugee, whether formally recognised or not, either, pursuant to article 21(2)(a) of that Directive, where there are reasonable grounds for considering him or her to be a danger to the security of the member state in which he or she is present, or, pursuant to article 21(2)(b) of that Directive, where, he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that member state.
71. The refoulement of a refugee, while in principle authorised by the derogating provision article 21(2) of Directive 2004/83, is only the last resort a member state may use where no other measure is possible or is sufficient for dealing with the threat that that refugee poses to the security or to the public of that member state. In the event that a member state, pursuant to article 14(4) of that Directive, revokes, ends or refuses to renew the refugee statues granted to a person, that person is entitled, in accordance with article 14(6) of that Directive, to rights set out inter alia in articles 32 and 33 of the Geneva Convention.
72. The consequences for the refugee concerned of applying the derogation provided for in article 21(2) of Directive 2004/83 are potentially very drastic, as Advocate General Sharpston noted in point 81 of her opinion, since he might be returned to a country where he is at risk. It is for that reason that that provision subjects the practice of refoulment to rigorous conditions, since, in particular, only a refugee who has been convicted by a final judgment of a "particularly serious crime" may be regarded as constituting a "danger to the community of that member state" within the meaning of that provision. Moreover, even where those conditions are satisfied, refoulement of the refugee concerned constitutes only one option at the discretion of the member states, the latter being free to opt for other, less rigorous, options.
73. However, article 24(1) of Directive 2004/83, whose wording is more abstract than that of article 21(2) of that Directive, pertains only to the refusal to issue a residence permit to a refugee and to the revocation of that residence permit, and not to the refoulement of that refugee. That provision therefore concerns only situations where the threat posed by that refugee to national security, public order or public of the member state in question cannot justify loss of refugee status, let alone the refoulement of that refugee. That is why implementation of the derogation provided for in article 24(1) of Directive 2004/83 does not presuppose the existence of a particularly serious crime.
74. The consequences, for the refugee, of revoking his residence permit pursuant to article 24(1) of Directive 2004/83 are therefore less onerous, in so far as that measure cannot lead to the revocation of his refugee status and, even less, to his refoulement with the meaning of article 21(2) of that Directive.
75. It follows that the concept of "compelling reasons" contained in article 24(1) of Directive 2004/83 has a broader scope than the concept of "serious reasons"[2] contained in article 21(2) of that Directive, and that certain circumstances which do not exhibit the degree of seriousness authorising a member state to use the derogation provided for in article 21(2) of that Directive and to take a refoulement decision can nevertheless permit that member state, on the basis of article 24(1) of the same Directive, to deny the refugee concerned his residence permit.'
The Immigration Rules
'This paragraph applies where the Secretary of State is satisfied that:
(i) there are reasonable grounds for regarding the person as a danger to the security of the United Kingdom; or
(ii) having been convicted by a final judgment of a particularly serious crime, the person constitutes a danger to the community of the United Kingdom.'
'(iii) there are no reasonable grounds for regarding them as a danger to the security of the United Kingdom in accordance with Article 33(2) …'
SIAC's OPEN judgment
'187. In any event, the scope of section 34(1)(b) must be strictly confined. All that this provision precludes is a proportionality exercise which balances the level of danger to national security against the level of danger to the individual if refouled. The subsection does not prohibit a proportionality exercise which measures the level of danger to national security against the practicability of surveillance and other measures in the context of a provision of last resort.
188. As the Commission pointed out in Shamima Begum (at para 30), referencing Lord Hoffmann in Rehman (para 56), the evaluative assessment that is required in all cases of this nature, whatever the context, must take into account the degree of prejudice to national security and also the importance of the security interest at stake. …'
'190. Of more difficulty for Mr Kinnear [counsel for the Secretary of State] is the judgment of the CJEU in T that Article 33(2) is a measure of last resort and should only be applied where no other measure is possible or sufficient for dealing with the threat (para 71). That analysis, if correct, is not precluded by section 34(1)(b) of the ATCS 2001. It is a different sort of proportionality analysis which requires that some consideration be given to the level of the danger to national security on the one hand (see para 75 of T and the reference to "degree of seriousness") and the measures that could be taken to reduce it to an acceptable level. Furthermore, the CJEU was not, we think, notionally inserting an epithet into Article 21(2) (i.e. "serious" before "danger"). Rather, the CJEU was saying that "danger" is a matter of fact and degree.
191. Reduced to its essentials, and stripping away those aspects of it that we cannot accept, Ms Knights' [counsel for D8] submission was that the relevant Immigration Rules, construed in the light of Article 33(2) of the Refugee Convention, Article 21(2) of the Qualification Directive and, in particular, T in the CJEU, impose on the Secretary of State a more onerous standard in relation to national security than would apply in, for example, a section 2B appeal where asylum issues are not at stake.'
'194. It follows that the Secretary of State must balance the degree of danger to national security (assuming that it is possible to assess it in the circumstances of an individual case,[4] and particularly so if it has been assessed) against the cost, practicability and feasibility of any measures that may be taken to ameliorate the risk; and must demonstrate that she has regarded the Article 33(2) exclusion as a measure of last resort. …'
'286. The Commission has concluded that D8 did not voluntarily re-avail himself of the protection of Iran and that it has not been demonstrated, applying the legal analysis we have set forth at length in this judgment, that D8 is a danger to national security. It follows that the revocation appeal must be allowed.'
The submissions on appeal
Retained EU law
Danger to national security
45. We adopt essentially the test stated by the Supreme Court of Canada in Suresh, a test close to that stated by the Court of Appeal and not really disputed before us: to come within art 33.2, the person in question must be thought on reasonable grounds to pose a serious threat to the security of New Zealand; the threat must be based on objectively reasonable grounds and the threatened harm must be substantial.'
'62. Finally, Lord Hoffmann explained at para 62 that a further reason for SIAC to respect the assessment of the Secretary of State was the importance of democratic accountability for decisions on matters of national security:
"It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove."
These points have been reiterated in later cases, including A v Secretary of State for the Home Department [2005] 2 AC 68 ("A") and R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2015] AC 945.'
Is there a requirement to carry out a balancing exercise?
'25. Article 33, in its plain terms, first places an obligation on the states parties not to expel a refugee whose life or freedom might be threatened in certain circumstances but, secondly, notwithstanding that prohibition, empowers them to expel a refugee for certain reasons including the endangering of national security. The two considerations are stated distinctly in each paragraph. According to their ordinary meaning, the two provisions operate in sequence. They are not related in any proportionate or balancing way. The second, if satisfied in its own terms, defeats the prohibition in the first. That is so although, as we have said at paras [19] and [20], the second operates and must be interpreted in the context of the serious consequences of return to persecution contemplated in the first.
26. The dual purpose of the article is plain enough. The prohibition on exit in para 1 of article 33 mirrors the entry definition in art 1A set out at para [28] but, as with art 1 and its exceptions, the prohibition on exit is not absolute. Those who prepared the Convention were, and the 142 states party to it and the 1967 protocol now are, willing to allow the entry of refugees and to protect them against deportation to persecution, but that willingness had and has its limits.
27. That distinct sequential reading, based as it is on the ordinary meaning of the terms of the two paragraphs of art 33 and their purpose, is supported by a consideration of what the proportionality or sliding scale proposition would require. The decision-maker would have to measure against one another two matters which are very difficult to relate: the level of threat to the life or liberty of an individual, on the one side, and, on the other, the level of reasonably perceived danger to the security of the state. While the law may sometimes appear to require such weighing, such an interpretation is to be avoided unless it is plainly called for.'
The UNHCR Guidance
T
'72. … Moreover, even where those conditions are satisfied, refoulement of the refugee concerned constitutes only one option at the discretion of the member states, the latter being free to opt for other, less rigorous, options.'
Conclusions
Retained EU law revisited
'anything which, on or after IP completion day[5], continues to be, or forms part of, domestic law by virtue of section 2, 3 or 4 or subsection (3) or (6) above (as that body of law is added to or otherwise modified by or under this Act or by other domestic law from time to time)'.
'(1) EU-derived domestic legislation, as it has effect in domestic law immediately before IP completion day, continues to have effect in domestic law on and after IP completion day.'
'any enactment so far as—
(a) made under section 2(2) of, or paragraph 1A of Schedule 2 to, the European Communities Act 1972,
(b) passed or made, or operating, for a purpose mentioned in section 2(2)(a) or (b) of that Act,
(c) relating to—
(i) anything which falls within paragraph (a) or (b), or
(ii) any rights, powers, liabilities, obligations, restrictions, remedies or procedures which are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972, or
(d) relating otherwise to the EU or the EEA,
but does not include any enactment contained in the European Communities Act 1972 or any enactment contained in this Act or the European Union (Withdrawal Agreement) Act 2020 or in regulations made under this Act or the Act of 2020.'
'(1) any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before IP completion day
(a) are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972, and
(b) are enforced, allowed and followed accordingly,
continue on and after IP completion day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly). …'
'In this Act—
"retained case law" means—
(a) retained domestic case law, and
(b) retained EU case law; …
"retained EU case law" means any principles laid down by, and any decisions of, the European Court, as they have effect in EU law immediately before IP completion day and so far as they—
(a) relate to anything to which section 2, 3 or 4 applies, and
(b) are not excluded by section 5 or Schedule1,
(as those principles and decisions are modified by or under this Act or by other domestic law from time to time) …'
'(3) Any question as to the validity, meaning or effect of any retained EU law is to be decided, so far as that law is unmodified on or after IP completion day and so far as they are relevant to it—
(a) in accordance with any retained case law and any retained general principles of EU law, and
(b) having regard (among other things) to the limits, immediately before IP completion day, of EU competences.'
'(1) Any other EU-derived rights, powers, liabilities, restrictions, remedies and procedures ceased to be recognised and available in domestic law so far as—
(a) they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts (including, and as amended by, this Act) or
(b) they are otherwise capable of affecting the exercise of functions in connection with immigration.'
'(2) The references in sub-paragraph (1) to any other EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures is a reference to any rights, powers, liabilities, obligations, restrictions, remedies and procedures which—
(a) continue to be recognised and available in domestic law by virtue of section 4 of the European Union (Withdrawal) Act 2018 (including as they are modified by domestic law from time to time) …'
Disposal
LORD JUSTICE PHILLIPS:
LADY JUSTICE ELISABETH LAING:
Note 1 The Supreme Court of the United Kingdom has only gone as far as saying that the principle ‘may be’ part of customary international law: R (AAA) (Syria) v Secretary of State for the Home Department [2023] UKSC 42, [2023] 1 WLR 4433 at [25]. [Back]
Note 2 The expression ‘serious reasons’ is an English translation of the French words ‘raisons sérieuses’ in the French language version of Articles 14(4) and 21(2) of the Directive. In the English language version the term ‘reasonable grounds’ is used. It may be that the French language version better captures the demanding nature of the test. [Back]
Note 3 Strictly, ‘retained EU law’ until 31st December 2023 and ‘assimilated law’ thereafter: see section 5 of the Retained EU Law (Revocation and Reform) Act 2023. [Back]
Note 4 I would comment that it seems odd to express a conclusion as subject to an assumption when the validity of that assumption has not been established. Nowhere in its decision does SIAC say that it would be possible to balance the degree of danger to national security posed by D8 against the cost, practicability and feasibility of any measures to ameliorate the risk. Any attempt to undertake such a balance strikes me as, at best, a somewhat artificial exercise, even assuming that it can be done at all. [Back]