Secretary of State For The Home Department v. Rehman

The House of Lords held that the Secretary of State’s assessment that an individual’s presence is "not conducive to the public good" on grounds of national security is entitled to significant deference. The court concluded that "national security" is not confined to threats directly targeted at the United Kingdom and may include activities directed at foreign states or international targets if there is a real possibility of adverse repercussions for the United Kingdom. The House rejected the Special Immigration Appeals Commission’s approach that each allegation must be proved to a "high civil balance of probabilities"; instead the executive may form a preventive or precautionary judgment based on an evaluation of the whole material where the question is predictive of future danger. The court confirmed that the Commission has jurisdiction to review questions of fact and law under section 4 of the Special Immigration Appeals Commission Act 1997 and may allow an appeal if the Secretary of State’s decision was not in accordance with the law or immigration rules or if the discretion should have been exercised differently, but must give due weight to executive assessments on national security and respect constitutional limits on judicial intervention (separation of powers).

Background and facts:

Mr Shafiq Ur Rehman, a Pakistani national admitted to the United Kingdom as a minister of religion, applied for indefinite leave to remain. The Secretary of State refused and stated, on the basis of confidential security material, that Mr Rehman was associated with an Islamic terrorist organisation (Markaz Dawa Al Irshad) and that his presence was a danger to national security; a deportation order under section 3(5)(b) of the Immigration Act 1971 was indicated. Mr Rehman appealed to the Special Immigration Appeals Commission which heard both open and closed evidence and concluded that the allegations were not proved to the necessary standard and allowed the appeal. The Secretary of State appealed to the Court of Appeal which allowed the appeal and remitted the matter to the Commission for redetermination. The matter came to the House of Lords on Mr Rehman’s appeal from the Court of Appeal.

Nature of the claim/application:

• Mr Rehman sought to challenge the Secretary of State's refusal of indefinite leave and the proposed deportation on national security grounds, seeking to overturn the Secretary of State's decision and to resist deportation.

Issues framed by the court:

• What is the proper legal meaning and scope of "national security" for the purposes of section 15(3) of the Immigration Act 1971?
• What standard or approach should the Special Immigration Appeals Commission adopt in reviewing the Secretary of State’s assessment — must each allegation be proved to a "high civil balance of probabilities"?
• What is the appropriate relationship between the Commission’s judicial review function and the executive’s assessment on national security (separation of powers and deference)?

Court’s reasoning and disposition:

The House held that national security is not limited to threats directly targeted at the United Kingdom: it may encompass conduct directed at foreign states or international targets when there is a real possibility of adverse repercussions for the United Kingdom or its citizens. The court emphasised that the Secretary of State is entitled to take a preventative or precautionary approach and to evaluate the likelihood of future harm by considering all material in his possession; where the question is evaluative and predictive (whether an individual is a danger to national security), it is not appropriate to treat each allegation as a discrete count requiring proof to a heightened civil standard. The Commission retains jurisdiction to review both law and fact under the 1997 Act and to quash or vary the Secretary of State’s decision where it was not in accordance with law or immigration rules or where the discretion should have been exercised differently, but judicial decision-makers must give due weight to executive assessments in national security matters and respect constitutional limits under separation of powers. For these reasons the House dismissed Mr Rehman’s appeal and remitted the case to the Commission for redetermination in accordance with the principles stated.

The appeal by Mr Rehman was dismissed. The House held that "national security" has a broader scope than merely direct threats to the United Kingdom and may include conduct abroad with realistic adverse repercussions for the United Kingdom; the Secretary of State is entitled to form a precautionary, evaluative judgment about future risk without requiring each allegation to be proved to a heightened civil standard; the Commission retains full jurisdiction to review law and fact under the Special Immigration Appeals Commission Act 1997 but must give due weight to executive assessments and respect separation of powers. The matter was remitted to the Commission for redetermination in accordance with these principles.

Appeal from the Special Immigration Appeals Commission (SIAC) decision of 20 August 1999 (SIAC allowed Mr Rehman's appeal). The Secretary of State appealed to the Court of Appeal, which allowed the Secretary of State's appeal and remitted the matter to SIAC for redetermination ([2000] 3 WLR 1240). Mr Rehman then appealed to the House of Lords which dismissed his appeal ([2001] UKHL 47).