N v Secretary of State for the Home Department [2006] EWCA Civ 299

[2006] EWCA Civ 299

Case No C1/2005/0972

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION

MR JUSTICE NEWMAN

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 28 March 2006

Before

LORD JUSTICE PILL

LORD JUSTICE SEDLEY

SIR PETER GIBSON

Between

NAppellant

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

MS S HARRISON (instructed by the Immigration Advisory Service) and MR K BEAL (appointed as Special Advocate by the Attorney-General) for Appellant

MR C GREENWOOD QC & MR T EICKE (instructed by The Treasury Solicitor) for Respondent

Hearing Hearing date : 26 January 2006

Judgment

[1]This is an application for permission to appeal against a judgment of the Special Immigration Appeals Commission (‘SIAC’) dated 18 February 2005. N (‘the appellant’) appealed to SIAC against a decision of the Secretary of State for the Home Department (‘the Secretary of State’) of 5 November 2002 whereby he refused to revoke a deportation order which had become effective in July 1996. It is a renewed application, Laws LJ having refused permission on a consideration of the papers.

[2]The applicant is 50 years old and a national of Pakistan. He arrived in the United Kingdom in June 1975 and was employed at the Pakistan High Commission. In 1990, he was granted indefinite leave to remain in the United Kingdom. He applied for naturalisation at a British Citizen. Following prolonged enquiry, which included interviews of N by the Security Services, notice of intention to deport was given on 12 February 1996 in the following circumstances.

[3]By letter of 9 February 1996, the Secretary of State stated:

“For reasons of national security, namely activities connected with the proliferation of weapons of mass destruction, your continued presence in the United Kingdom would not be conducive to the public good.”

The Secretary of State stated that, in making the decision:

“… [he had] very carefully considered all the circumstances of [the case] as available to him in relation to paragraph 364 of the Immigration Rules. These include your domestic circumstances, your ties to the United Kingdom, and the length of time you have lived in this country.”

The Secretary of State concluded that the interests of national security outweighed the personal considerations touching the appellant. Following an unsuccessful reference to the Advisory Panel, mentioned later, the applicant thereupon left the United Kingdom and the appeal to SIAC in 2003 was an out of country appeal.

[4]On 4 March 2003, N requested revocation of the deportation order and appealed to SIAC against the refusal to revoke. Giving the judgment of SIAC dismissing the appeal, Newman J considered the circumstances in which the deportation order has been made in 1996. He stated:

“2. The Secretary of State’s open case against the appellant was first set out in the Home Office Statement attached to the letter of the 9th February 1996. This was: (a) The appellant was a covert representative of the Khan Research Laboratories (KRL) which is involved in research, development and covert procurement of sensitive equipment which can have nuclear weapons applications; (b) Since 1991 the appellant had been conducting covert nuclear procurement activities in Britain on behalf of KRL, including one seeking to procure equipment for KRL from UK companies; (c) Administering KRL’s sponsored students in the United Kingdom; (d) Arranging and overseeing KRL’s letters of credit in the United Kingdom; (e) Acquiring scientific literature for KRL; (f) Organising the visits of KRL’s staff to the United Kingdom; and (g) Acting as KRL’s agent with the UK Patent Office. 3. The Secretary of State concluded that these activities were in clear contravention of HMG’s non-proliferation policy and international treaty commitments and the Secretary of State concluded that it was appropriate to make the deportation order against the appellant. 4. In response to the decision to make the deportation order, the appellant appealed against that decision to the “Three Advisors”

. His grounds of appeal denied that: (a) he was a representative of KRL (covert or overt); (b) he was conducting covert nuclear procurement activities in the United Kingdom; (c) he, at any time, sought to procure equipment for KRL from UK companies; (d) he administered KRL’s sponsored students as alleged or at all; (e) he acquired scientific literature or arranged visits of KRL’s staff. He asserted that, in the circumstances, it was unlikely that a person recruited locally and performing a relatively humble position at a low salary with the Pakistan High Commission would be engaged in the sort of activities alleged by the Secretary of State. The appellant believed that he must be the subject of mistaken identity and that he had been deported for something he had not done. 5. On 4th April 1996 the Three Advisors [The Advisory Panel], presided over by Lord Lloyd of Berwick, having heard the appellant’s evidence and having reviewed the evidence (both open and closed) in support of the Secretary of State’s decision, upheld the Secretary of State’s decision as being justified on all the evidence.”

[5]Section 5(2) of the Immigration Act 1971 provides that: ‘A deportation order against a person may at any time be revoked by further order’.

[6]SIAC’s judgment set out, at paragraph 7, the rules applicable to the revocation of a deportation order, 390 to 392 of the Immigration Rules. They provide:

“390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following: (i) the grounds on which the order was made; (ii) any representations made in support of revocation; (iii) the interests of the community, including the maintenance of an effective immigration control; (v) the interests of the applicant, including any compassionate circumstances. 391. In the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the court which made the recommendation or the appellate authorities of the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order. However, save in the most exceptional circumstances, the Secretary of State will not revoke the order unless the person has been absent from the United Kingdom for a period of at least 3 years since it was made. 392. Revocation of a deportation order does not entitle the person concerned to re-enter the United Kingdom; it renders him eligible to apply for admission under the Immigration Rules.”

[7]The applicant relied, at the open hearing before SIAC, on the passage of time since he was deported, on his claim that he was not a threat to national security either in 2002 or in 2005, and to the requirement in Rule 390 that an application for revocation is to be considered in the light of all the circumstances including “the grounds on which the order was made”. SIAC was also invited to have regard to the compassionate circumstances of the case.

[8]SIAC’s general conclusion was stated at paragraph 39:

“We are satisfied on all the open material before the Commission that the Secretary of State properly considered the weight and factors set out in paragraphs 390-392 of the Immigration Rules and that he was entitled to come to the conclusion that the deportation order should not be revoked. The appellant did not provide any evidence to support his case that there had been a change of circumstances sufficient to warrant the revocation of the deportation order. Having regard to the risk which was originally found, the Secretary of State was entitled to conclude that the return of the appellant to the United Kingdom, albeit not as an employee of the Pakistan High Commission, was, by reason of his familiarity with the United Kingdom, his contacts within the United Kingdom and his past history, including in particular his close contact with KRL and its senior personnel and the extent of his activities for KRL, sufficient to make him a risk to national security and to give rise to a real risk that he would become engaged in activities in connection with nuclear procurement and proliferation should he return.”

[9]At paragraph 40, SIAC added:

“For completeness, we should state that there is nothing in the closed material which the Commission has reviewed which supports the appellant’s case in any way or which in any way undermines the Secretary of State ’s decision.”

[10]In this application, four points are taken by Miss Harrison, on behalf of N, supported by Mr Beal, special advocate, who also made submissions at the open hearing. First, SIAC erred in law in limiting its consideration to the facts at the date of the Secretary of State’s decision, that is 20 November 2002.

[11]At paragraphs 14 and 15 of the judgment, SIAC stated:

“14. The Secretary of State refused to revoke the deportation order in November 2002 because he was satisfied that there had been no material change of circumstances which demonstrated that the appellant had ceased to present a threat to national security. Given that his conclusion was that the appellant posed a continuing threat, it obviously involved an assessment of how, if the appellant re-entered, he could threaten national security. In one sense therefore the overall decision involved an assessment of future risk, but the core of the decision turned upon the attributes and disposition of the appellant and his purpose in seeking to re-enter. Save in the limited sense we have indicated, this is not a prediction case. In any event, no facts have been relied upon to illuminate the decision to refuse to revoke the order. 15. We have concluded that the jurisdiction of the Commission is limited to an examination of the facts as they were at the date of the decision. The Immigration Rules, and in particular the need for regard to be paid to the passage of time, cannot be taken as extending the statutory jurisdiction of the Commission.”

[12]Section 4, since repealed, of the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”) provided that SIAC, on an appeal under the 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. 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

[13]Section 4 provided the broadest of jurisdictions, it is submitted, and, unlike other similar provisions, did not contain express provision as to what evidence could be taken into account. A broad and flexible approach should be adopted. When analysing section 4 in Rehman v Secretary of State for the Home Department

[2003] 1 AC 153

, Lord Slynn of Hadley stated, at paragraph 11:

“It seems to me that on this language and in accordance with the purpose of the legislation to ensure an “effective remedy” within the meaning of article 13 of the European Convention, that the Commission was empowered to review the Secretary of State’s decision on the law and also to review his findings of facts. It was also given the power to review the question whether the discretion should have been exercised differently. Whether the discretion should have been exercised differently will normally depend on whether on the facts found the steps taken by the Secretary of State were disproportionate to the need to protect national security.”

[14]The assessment made by SIAC is an assessment of future risk and events occurring after the date of the decision may, it is submitted, affect that assessment. Failure to take such material into account during the appeal process would, it is submitted, cause delay in making an appropriate decision when circumstances change, with potential prejudice to both parties. The passage of time is itself a relevant factor. Moreover, human rights considerations are involved and, as with the determination of refugee status, flexibility is required, it is submitted. It would be illogical if SIAC applied a different test in a national security case from that applied in other contexts. While it does not assist her case, Miss Harrison submits, and the submission remains uncontradicted, that, under provisions which have replaced section 4 of the 1997 Act, SIAC may have regard to evidence concerning a matter arising after the date of the decision.

[15]Reference is made to the willingness of SIAC, by consent, to take into account post-decision material in other cases. It is also submitted that the reasoning in paragraph 14 of the judgment is erroneous and unclear. An element of prediction is inevitably involved in an assessment of risk.

[16]Miss Harrison submits that both with respect to the applicant and to the objective facts, circumstances had changed between November 2002 and the date of SIAC’s decision, over two years later. The time had passed without further evidence of the applicant’s involvement with KRL. There had also been significant changes in international relations between Pakistan and the United States and her allies and also changes in relations with other potential nuclear states, for example, Libya.

[17]The second submission is that SIAC misdirected itself in concluding that the original deportation order and the facts underlying it could not be challenged on the hearing of the appeal. At paragraphs 22 and 23, SIAC stated:

“Rule 390 requires an application for revocation to be considered in the light of all the circumstances including “the grounds on which the order was made”

. The requirement to consider the original grounds does not mean that the facts giving rise to the grounds must be re-opened and reviewed, save where, for example, fresh material has come to light to cast doubt upon the factual basis for the original deportation order. It is not open to an appellant to seek to persuade the Secretary of State (or this Commission on appeal) that the original deportation order should not have been made. Nor where the original order has been appealed, to seek to re-open the facts in further proceedings. In this case there was a review by an Advisory Panel, a challenge in the Administrative Court and an application to the European Court of Human Rights in Strasbourg. The principle of finality which applies to litigation precludes the appellant pursuing submissions (1) and (2) in paragraph 20 above [denial of, or inadvertence in, conduct which led to the 1996 decision]. In our judgment the deportation order is not open to challenge. Its legality cannot be questioned and, there being no fresh evidence, the facts cannot be challenged. It follows that it is open to the appellant to submit that he was not a risk to national security in November 2002, because there had been a change in circumstances and/or due consideration of the grounds upon which he was deported and the passage of time since his deportation should have led the Secretary of State to conclude that he was no longer a risk to national security.”

[18]Paragraph 390 of the Immigration Rules requires consideration of “all the circumstances” and these are expressly stated to include “the grounds of which the order was made”. Further, SIAC ought to have taken into account that, until the introduction of special procedures under the 1997 Act, the process for challenging deportation on national security grounds did not meet the standards required by the European Convention on Human Rights (Chahal v UK

[1997] 23 EHRR 413

). The fact that a review by the Advisory Panel was conducted in 1996 should not preclude consideration of the original decision to deport, it is submitted. It is also submitted that SIAC ought not, as it did at paragraph 35, conclude that attempts to contest the facts which gave rise to the original deportation cast doubt upon the appellant’s credibility in 2002.

[19]By issue 3, it is submitted that in making its assessment, SIAC have had insufficient regard to the standard of proof imposed on the Secretary of State in present circumstances (Rehman v Secretary of State for the Home Department

[2003] 1 AC 153

). There is no adequate factual basis for the assessment of current risk adverse to the applicant made in 2002. It is based only on “possibilities and on what is likely”.

[20]By issue 4, it is submitted that SIAC had insufficient regard to the interests of the applicant, based on his long residence in the United Kingdom, his family relationships here and his health problems. No sufficient balancing exercise was conducted.

[21]In my judgment issues of fact were sufficiently considered and reasoned. At first sight, there is force in Miss Harrison’s submission that SIAC’s statement, in paragraph 28, that the applicant’s attempt to contest the facts which gave rise to the earlier deportation adversely affect is credibility, is unsound. However, SIAC go on to refer, in paragraph 28, to “facts that have been established”. SIAC clearly conducted a fact-finding exercise in paragraph 31 to 36, culminating in the conclusion at paragraph 39 already cited. The denial of what SIAC has found to be established facts about past conduct may be relevant to a consideration of the risk now presented by the applicant, and it is in that context that the comments complained of were made.

[22]For the proposed respondent, Mr Greenwood’s submission on the first point is that the meaning of Section 4(a) of the 1997 Act is clear. It is the decision of the Secretary of State which is under consideration and that can be considered only on the basis of the evidence available at the time the decision was made. The wording accords with the purpose of the Act which makes the Secretary of State the primary decision maker, though his decision is subject to scrutiny by SIAC. I accept Mr Greenwood’s submission as to meaning of Section 4(a) and that the meaning of the sub-section is clear.

[23]Mr Greenwood concedes that there is “an element of opacity” in paragraph 14 of the SIAC judgment, but that opacity, he submits, does not invalidate SIAC’s conclusion that the re-entry into the United Kingdom would “give rise to a real risk”. I have difficulty with SIAC’s statement that “this is not a prediction case”, because any assessment of whether the applicant is “a continuing threat” involves a prediction of what he would or might do if he were present in the United Kingdom. I have considered SIAC’s approach to the submissions of the parties and SIAC’s conclusion, and whatever that statement of SIAC was intended to mean, have no doubt that they applied the correct test when assessing the current threat to national security.

[24]On the second issue, Mr Greenwood submits that SIAC were correct, at paragraph 23, to conclude that the deportation order itself was not open to challenge. However, he concedes that, having regard to the wording of Rule 390, SIAC must consider the grounds on which the order was made. An analysis of an alleged change of circumstances inevitably involves a consideration of the grounds on which the order was made. That analysis was conducted, it is submitted. The grounds on which the order was made are set out in paragraph 2 of SIAC’s decision, recited earlier in this judgment. The alleged changes in circumstances, including the lapse of time, are considered and a conclusion clearly stated at paragraph 39.

[25]I reject the applicant’s submission, as presented to the Court, on this issue. The risk, as perceived in 1996, is described by SIAC, the situation in 2002 analysed, and a conclusion reached that the applicant remains a risk to national security.

[26]I add that I do not accept the applicant’s submission, as made to SIAC, on the construction of Rule 392. It cannot be read as an indication that, unless a serious violent or sexual offence has been committed, deportation orders should normally be revoked after three years. A risk to national security may present a greater risk to the public even than the risk of violent or sexual offences. Nor does the fact that revocation of a deportation order does no more than render the applicant eligible to apply for admission (Rule 392) affect the test to be applied under the Rules when considering revocation.

[27]I see no merit in the third of the submissions made. An assessment of a current risk to national security inevitably involves, on the basis of the information available, a judgment as to what is likely and what are real possibilities. SIAC conducted a detailed examination and reached a clear conclusion.

[28]As to issue 4, SIAC, as required, considered the circumstances of the applicant, including compassionate circumstances. They were satisfied that relevant matters had been considered by the Secretary of State and expressed their own judgment that those matters were “insufficient, in all the circumstances to render unjustifiable the continuation of the deportation order”. There is no error of law in that conclusion.

[29]It follows that, in my judgment, the submissions on behalf of the applicant do not raise an arguable case that SIAC has erred in law. On those submissions, I would refuse the application for permission. However, by reason of a submission made at the closed hearing which followed the open hearing, I would grant permission to appeal, though on that submission alone.

[30]I agree.

Sir Peter Gibson:

[31]I also agree.