Secretary of State for the Home Department v. Rehman

Deportation in the interests of national security does not require a direct or immediate threat targeted at the United Kingdom. Support for terrorism abroad may suffice where it creates a real possibility of adverse effects on the United Kingdom, its people or institutions.

Specific past acts must be proved to the civil standard. The ultimate assessment is nevertheless evaluative and predictive. It considers the evidence cumulatively, the probability and gravity of future harm, and the consequences of deportation. The Special Immigration Appeals Commission may review fact, law and discretion, but must give due weight to the executive’s expertise, responsibilities and policy judgment in national security matters.

The Secretary of State refused Mr Rehman indefinite leave to remain and proposed his deportation under the Immigration Act 1971. He considered that Mr Rehman’s alleged support for an organisation engaged in terrorism abroad made his presence contrary to the public good in the interests of national security.

The Special Immigration Appeals Commission allowed Mr Rehman’s appeal. It adopted a narrow meaning of national security and held that the allegations had not been proved to a high civil balance of probabilities. The Court of Appeal, in [2000] 3 WLR 1240, allowed the Secretary of State’s appeal and remitted the case.

The issues before the House were the scope of national security, the proper treatment of proof and future risk, the relationship between the statutory grounds in section 15(3), and the Commission’s proper reviewing role.

1. Appeal dismissed unanimously. Lord Slynn delivered a leading speech with which Lord Steyn agreed. Lord Hoffmann gave concurring reasons, adopted by Lord Clyde. Lord Hutton agreed with the two grounds decisive of the appeal. The Court of Appeal had correctly remitted the matter to the Commission for redetermination.

2. Per Lord Slynn, Lord Steyn, Lord Hoffmann and Lord Hutton, national security means the security of the United Kingdom and its people, but the relevant threat need not be direct, immediate or targeted at the United Kingdom. Support for terrorism against another state may create a real possibility of adverse repercussions here. International co-operation against terrorism may itself promote national security.

3. Per Lord Slynn, Lord Steyn, Lord Hoffmann and Lord Hutton, the grounds in section 15(3) of the Immigration Act 1971 may overlap. National security, foreign relations and other political reasons are not watertight compartments. Lord Hoffmann described them as a composite class. Fair notice of the reasons and supporting facts remained necessary.

4. Per Lord Slynn, Lord Steyn, Lord Hoffmann and Lord Hutton, specific past acts must be established to the civil standard. The ultimate question, however, concerns future danger and cannot be resolved by treating each allegation as a count in an indictment. The decision-maker must evaluate the evidence cumulatively. Relevant matters include the degree of probability, the importance of the threatened security interest and the serious consequences of deportation.

5. Per Lord Slynn and Lord Steyn, consistently with Lord Hoffmann’s reasoning adopted by Lord Clyde, the Commission may review questions of fact and law and decide whether the Secretary of State’s discretion should have been exercised differently under section 4 of the Special Immigration Appeals Commission Act 1997. That inquiry includes whether the response was proportionate to the need to protect national security.

6. Per Lord Slynn and Lord Steyn, and Lord Hoffmann with Lord Clyde, the Commission must give substantial weight to the Secretary of State’s assessment, expertise and responsibility for national security policy. Lord Hoffmann reasoned that the executive determines policy questions about what lies in the interests of national security. The Commission may examine the evidential basis, irrationality and issues outside the executive’s exclusive province, but should ordinarily respect a risk assessment reasonably open to the Secretary of State.

1. House of Lords: Dismissed Mr Rehman’s appeal unanimously and upheld the remittal to the Special Immigration Appeals Commission.
2. Court of Appeal: In [2000] 3 WLR 1240, allowed the Secretary of State’s appeal. It held that the Commission had construed national security too narrowly and had used the wrong approach to proof and risk. It remitted the case for redetermination.
3. Special Immigration Appeals Commission: Allowed Mr Rehman’s appeal. It confined national security to specified threats targeted at the United Kingdom or its people and found that the Secretary of State’s allegations had not been proved to a high civil balance of probabilities.