D8 v Secretary of State for the Home Department

The Court of Appeal allowed the Secretary of State's appeal against SIAC's decision that revocation of refugee status and refusal of refugee status on national security grounds were unlawful. The court held that, once the Secretary of State has reasonably concluded that a refugee is a danger to national security within the meaning of Article 33(2) of the 1951 Refugee Convention (and the equivalent domestic / Qualification Directive provisions), there is no separate legal requirement to carry out a further balancing exercise weighing the degree of danger against the cost, practicability or feasibility of measures to ameliorate the risk, or to demonstrate that revocation is a measure of last resort.

The court rejected SIAC's reliance on UNHCR guidance to impose an additional proportionality requirement and concluded that the CJEU decision in T v Land Baden-Wurttemberg forms part of retained EU law but does not require the balancing exercise SIAC imposed. The court emphasised the Secretary of State's constitutional role and the limited circumstances in which courts or SIAC may depart from her assessment of danger to national security. The court noted that, because return to Iran would breach Article 3 (and possibly Article 2) ECHR, some form of leave to remain must nevertheless be granted to D8, but that did not alter the legal conclusion on the obligation to carry out the balancing exercise.

This is an appeal from the Special Immigration Appeals Commission ([2023] UKSIAC 1) in which SIAC quashed decisions by the Secretary of State to revoke D8's refugee status (15 October 2020) and to refuse a subsequent asylum claim on national security grounds (8 July 2022). The Secretary of State had concluded, on security service assessment, that D8 posed a danger to national security due to an Islamist mindset and support for Islamic State. SIAC accepted the Secretary of State's factual assessment of dangerousness in closed material but held that she had not performed a further balancing exercise against the practicability, cost and feasibility of measures to ameliorate risk and had not shown revocation to be a measure of last resort.

Nature of the proceedings: appeal against SIAC's legal conclusion that revocation/refusal requires a balancing/proportionality exercise akin to that described by UNHCR guidance and (it had been held) indicated by the CJEU in T.

Issues before the court:

• Whether the Secretary of State is required, as a matter of law, to balance the degree of danger a refugee poses to national security against the cost, practicability and feasibility of measures to reduce that risk before revoking refugee status or refusing refugee status;
• What weight (if any) UNHCR guidance and the CJEU decision in T v Land Baden-Wurttemberg should have in interpreting Article 33(2) of the Refugee Convention, the Qualification Directive and the Immigration Rules; and
• Whether the CJEU decision in T forms part of retained EU law and, if so, whether it requires the balancing exercise SIAC imposed.

Court's reasoning and outcome: The court held that the concept of a "danger to national security" already imports seriousness and requires reasonable grounds. The Refugee Convention's Article 33(2) and the parallel provisions in the Qualification Directive and Immigration Rules embody a calibrated international-state balance and do not themselves require a further proportionality exercise comparing the state's practicability/cost of mitigation measures with the degree of danger. Section 34(1)(b) of the Anti-terrorism, Crime and Security Act 2001 was noted as evidencing Parliament's intention to preclude balancing the danger to national security against the gravity of harm the refugee would suffer if returned. The court accepted that UNHCR guidance is persuasive in explaining the content of terms but rejected those parts that add an extra balancing requirement beyond the Convention text. The court held that the CJEU decision in T is retained EU case law and therefore part of retained law, but that T does not themselves mandate the balancing exercise SIAC required. The court allowed the appeal and restored the Secretary of State's approach that, having reasonably concluded that the person is a danger to national security, she is entitled to revoke refugee status or refuse refugee status without the separate balancing exercise SIAC imposed. The court recorded that, because return to Iran would breach Article 3 (and might engage Article 2), the Secretary of State accepts some form of leave must be granted to D8; that issue was not decided by the court.

Appeal allowed. The Court of Appeal held that once the Secretary of State has reasonably concluded a refugee is a danger to national security she is entitled to revoke refugee status or refuse to grant it without performing a further balancing exercise weighing the degree of danger against the cost, practicability or feasibility of measures to ameliorate the risk. The court rejected SIAC's imposition of an additional proportionality requirement derived from UNHCR guidance and concluded that the CJEU decision in T, while part of retained EU law, does not require the balancing exercise SIAC imposed. The Secretary of State's assessment of dangerousness attracts constitutional deference and SIAC erred in law by imposing the additional requirement.

Appeal from the Special Immigration Appeals Commission (Mr Justice Jay, Upper Tribunal Judge Lindsley & Sir Stewart Eldon) [2023] UKSIAC 1 to the Court of Appeal, neutral citation [2025] EWCA Civ 33.