N v Secretary of State for the Home Department

On an appeal from a refusal to revoke a deportation order, the reviewing jurisdiction is directed to the Secretary of State’s decision and the evidence available when it was made. The original order cannot be reopened as if it were a fresh appeal, but the grounds on which it was made must be considered when assessing whether circumstances have materially changed. An assessment of continuing national-security risk necessarily involves predictive judgment about what the person might do on return. The passage of time and compassionate circumstances remain relevant, but they do not create a presumption that revocation should follow after three years. Permission to appeal was granted on a point raised at the closed hearing.

N, a Pakistani national who had lived in the United Kingdom since 1975 and held indefinite leave to remain, was made subject to a deportation order in 1996 on national-security grounds connected with alleged activities for the Khan Research Laboratories. An Advisory Panel upheld the decision, and the deportation order became effective in July 1996.

In 2002 the Secretary of State refused N’s application to revoke the order. SIAC dismissed his appeal on 18 February 2005, holding that there had been no material change sufficient to warrant revocation and that his return would present a continuing national-security risk. N sought permission to appeal, arguing that SIAC had used the wrong temporal scope, failed properly to reconsider the original grounds, applied an insufficient standard of proof, and inadequately balanced his personal circumstances.

1. Permission and jurisdiction. The open-hearing submissions disclosed no arguable error of law, but permission to appeal was granted on a point raised at the subsequent closed hearing.
2. Section 4 of the Special Immigration Appeals Commission Act 1997 made the Secretary of State’s decision the subject of review. SIAC was entitled to examine that decision on the evidence available when it was made. The court accepted that statutory meaning as clear.
3. Although SIAC described the matter as not being a prediction case, the relevant question whether N remained a continuing threat necessarily involved predicting what he might do if present in the United Kingdom. The court nevertheless concluded that SIAC had applied the correct test and had assessed the current national-security risk lawfully.
4. Rule 390 of the Immigration Rules required consideration of all the circumstances, including the grounds on which the deportation order was made. That did not permit the original order to be reopened or its established factual basis relitigated without fresh material casting doubt on it. The grounds had to be considered in analysing alleged changes of circumstance, including the passage of time.
5. Rule 391 did not establish a normal three-year route to revocation in cases lacking a serious violent or sexual offence. National-security risk could present an equal or greater public danger. Rule 392’s provision that revocation merely made a person eligible to apply for admission did not alter the revocation test.
6. SIAC had considered the alleged current risk, the applicant’s compassionate circumstances and the relevant personal matters. Its conclusion that those matters did not make continuation of the deportation order unjustifiable disclosed no error of law.

• Court of Appeal (Civil Division): Permission to appeal was sought from SIAC’s judgment dated 18 February 2005. The open-hearing grounds were held not to disclose an arguable error of law; permission was granted on a separate submission made at the closed hearing.
• Special Immigration Appeals Commission: Appeal against the Secretary of State’s refusal to revoke the deportation order was dismissed.
• Secretary of State for the Home Department: Refusal to revoke the deportation order dated 5 November 2002.