Immigration law

Terrorism - indefinite leave to remain in UKShafiq Ur Rehman v Secretary of State for the Home Department [2001] UKHL 47 11 October HLThis was an appeal under section 2(1)(b) and (c) of the Special Immigration Appeals Commission Act 1997 against a decision of the Secretary of State for the Home Department to refuse the appellant indefinite leave to remain in the UK and a deportation order made under section 3(5)(b) of the Immigration Act 1971.

An out-of-time application for indefinite leave to remain in the UK was refused in December 1998 on the grounds that there was information that the appellant was allegedly involved with what the government asserted to be an Islamic terrorist organisation, the Markaz Dawa Al Irshad (MDI), and as such was considered a danger to national security.

It was asserted that the appellant was the point of contact for the MDI in the UK and that he was involved in fund-raising, recruitment and training for the organisation.

It was accepted that acts of violence associated with the MDI were unlikely to be carried out in the UK but it was believed that the appellant's activities in the UK directly supported terrorism in India.

The secretary of state had made his initial decision based on the issue of national security.

The Special Immigration Appeals Commission had found that the secretary of state had defined the meaning of national security too widely and found that it should be construed narrowly.The appeals commission found that a person could be said to have offended against national security if he had engaged in, promoted, or encouraged violent activity that was targeted at the UK, its system or government or its people.

That definition of national security included activities directed at a foreign government if that foreign government was likely to make reprisals against the UK, which affected the security of the UK or its nationals.

National security also extended to situations where UK citizens were targeted wherever they were.

The appeals commission then concluded that the secretary of state had not made out that the respondent was a threat to national security.The secretary of state appealed to the Court of Appeal, which held on 23 May 2000:l That if a course of conduct by a person would adversely reflect on the security of the UK, then it could not be correct to regard that person's presence in the UK as conducive to the public good because the target for the conduct was another country.

The security of one country depended upon the security of other countries, which justified a wider approach to the meaning of national security than the narrow approach that the appeals commission had given; l What could be regarded as affecting national security could vary according to the danger being considered.

An approach which was suggested by the amicus curiae was: 'In alleged terrorist cases, a person may be said to be a danger to the UK's national security if he or she engages in, promotes or encourages violent activity which has, or is likely to have, adverse repercussions on the security of the UK, its system of government or its people'.Although the Court of Appeal found that approach generally helpful it was not conclusive or exhaustive.

It was correct that there had to be adverse repercussions on the security of the UK, either directly or indirectly.

It was sufficient that the dangers were of a kind that created a risk of adverse repercussions.

As long as there was a real possibility of adverse repercussions, then the degree of likelihood only became important when the secretary of state had to weigh up against the risk of adverse repercussions the effect of deportation on the person in question.

The promotion of terrorism against any state was capable of being a threat to the UK's national security.

In that respect the government was entitled to treat any undermining of its policy to protect the UK from international terrorism as being contrary to the security interests of the UK.

l The secretary of state was entitled to make a decision to deport not only on the basis that the individual had endangered national security but also because the individual was a continuing risk to national security.

The case needed to be looked at as a whole, and it was not necessary to prove to a high civil degree of probability that the person in question had performed any individual act which would justify the conclusion that he was a danger to national security.

The Court of Appeal remitted the case for redetermination to the appeals commission.

The appellant was granted leave to appeal to the House of Lords on 4 October 2000 and the case was heard on 16 January 2001.

The Lords held: l A risk to national security did not have to represent a direct threat to the UK, nor were the interests of national security limited to actions that could be said to be targeted at the UK.

National security was threatened if the state targeted by the individual in question, by illegal means or a coup, would in consequence threaten the UK; l There was a large amount of public policy in this area, which was a matter for the secretary of state; l The secretary of state was entitled to consider precautionary and preventative principles when assessing whether an individual should remain in the UK without having to wait until a harmful action had occurred.

The establishment of a high degree of probability was not relevant to the process of reaching a conclusion on whether there should be a deportation for the public good; l Although the appeals commission had powers of review of fact and law, it had to give 'proper deference to the primary decision maker' - that is to say, the secretary of state - because he was undoubtedly in the best position to judge what national security required.In the light of events since this case was heard and determined, there has been substantial legislation on international terrorism and article 5 of the European Convention on Human Rights.

The consequences of the legislation, together with this case, mean that those clients facing international terrorism or national security allegations will almost certainly spend long periods in detention and the broad reach of the allegations that can be made will render preparation of cases very complex.

By Jane Coker, Coker Vis Partnership, London