D8 v Secretary of State for the Home Department

Where a refugee is reasonably regarded as a danger to national security, the danger must be real and serious. The Refugee Convention, the materially corresponding provisions of the Qualification Directive and the Immigration Rules do not require a further proportionality exercise comparing that danger with the cost, practicability or feasibility of measures to reduce it. Article 33(2) operates as a sequential exception to non-refoulement, subject to other international and domestic obligations, including Articles 2 and 3 of the European Convention on Human Rights. UNHCR guidance is entitled to weight but cannot add a requirement absent from the Convention. The decision in T does not impose a mandatory last-resort balancing test. National-security assessments are primarily for the Secretary of State, subject to limited judicial intervention.

The Secretary of State revoked D8’s refugee status in 2020 and refused his later asylum application on national-security grounds. SIAC held both decisions unlawful, finding that the Secretary of State had to balance the danger against the cost, practicability and feasibility of measures to reduce it and demonstrate that revocation was a last resort: [2023] UKSIAC 1. SIAC also found that D8 could not safely be returned to Iran, a finding not challenged on appeal.

The appeal concerned whether that balancing exercise was required for revocation or refusal of refugee status, whether the equivalent refoulement provisions required the same approach, and what effect the CJEU decision in T, [2016] 1 WLR 109, had after EU withdrawal.

The appeal was allowed. Lord Justice Males gave the leading judgment, with Lord Justice Phillips agreeing. Lady Justice Elisabeth Laing agreed subject to a qualification concerning the absence of full argument on the precise statutory status of the Immigration Rules.

1. Danger to national security. The expression inherently denotes a real and serious danger. A minor, trivial or non-serious danger cannot qualify. The Secretary of State is constitutionally responsible for assessing national-security danger. Courts and SIAC must respect that assessment because of executive expertise and democratic accountability, subject to limited grounds of intervention such as irrationality. No such challenge was advanced.
2. No further balancing exercise. Article 33 of the Refugee Convention is a carefully calibrated scheme. Article 33(2) creates a sequential exception to the prohibition on refoulement in Article 33(1). Once reasonable grounds exist to regard a refugee as a danger to national security, no additional exercise balancing that danger against the cost, practicability or feasibility of risk-reduction measures is required. The same conclusion applies to Articles 14(4) and 21(2) of the Qualification Directive and the corresponding Immigration Rules. Section 34(1)(b) of the Anti-terrorism, Crime and Security Act 2001 reinforces the conclusion that no further gloss should be added.
3. Limits on return. Other international and domestic obligations remain applicable. Articles 2 and 3 of the European Convention on Human Rights, Article 3 of the Torture Convention and customary international law prohibit return where it would expose a person to death or torture. Those obligations did not, however, require the proposed resource-based balancing exercise.
4. UNHCR guidance and T. UNHCR guidance is non-binding and may assist interpretation, but its additional proportionality requirement goes beyond the Convention’s language. T concerned residence permits under Article 24(1), not the precise application of Article 21(2). Its reference to refoulement as a last resort recognised that it was the most drastic available measure and that states could choose lesser measures; it did not make refoulement unlawful unless no lesser measure could reduce the risk.
5. Retained EU law and disposal. T formed part of retained EU case law because the relevant Immigration Rules were EU-derived domestic legislation under section 2 of the European Union (Withdrawal) Act 2018. Paragraph 6 of Schedule 1 to the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 applied only to rights retained through section 4 and did not alter that conclusion. Although D8 could not be returned to Iran, the Secretary of State was entitled to revoke his refugee status and refuse his further claim for refugee status.

• Court of Appeal (Civil Division) — allowed the Secretary of State’s appeal and held that no further balancing exercise was required: [2025] EWCA Civ 33.
• Special Immigration Appeals Commission — allowed D8’s revocation appeal, holding that the Secretary of State had failed to balance the national-security danger against possible ameliorative measures and failed to show that revocation was a measure of last resort: [2023] UKSIAC 1.