Chahal v. Secretary of State for the Home Department

CHAHAL v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1995] 1 ALL ER 658, [1995] 1 WLR 526, [1994] Imm AR 107

Hearing Date: 22 October 1993

22 October 1993

Index Terms:

Deportation -- conducive to the public good -- in the interests of national security -- appellant claimed asylum -- application rejected by Secretary of State -- whether that decision perverse -- whether in considering deportation in the interests of national security the Secretary of State was obliged to balance the interests of national security against an applicant's interests as a refugee -- whether the Secretary of State had done so. Immigration Act 1971 (as amended) ss 3(5), 15(3): HC 251 paras 157, 161, 162, 164, 167, 173: United Nations Convention relating to the status of refugees (1951), Protocol (1967) arts 32, 33: International Covenant on civil and political rights (1966) art 7: United Nations Convention against torture (1987) art 3: European Convention on human rights (1950) arts 3, 13.

Held:

Appeal from the judgment of Potts J in which he had dismissed the application for judicial review by Karamjit Singh Chahal of the decision of the Secretary of State to deport him to India: the decision was taken on the ground that his deportation was conducive to the public good and in the interests of national security, it being the conclusion of the Secretary of State that the appellant had engaged in terrorist activities, internationally and in the United Kingdom. The appellant had claimed political asylum. The Secretary of State had refused that application. It was argued on behalf of the appellant that the Secretary of State's decision to refuse asylum was perverse. It was also unreasonable, in all the circumstances, to deport the appellant. For the Secretary of State, following NSH, it was argued that where a question of the interests of national security arose, it was not necessary for the Secretary of State to balance, against those interests, the interests of the individual as a refugee: however if the Secretary of State were obliged to carry out such a balancing act, the Secretary of State had done so. Held 1. Contrary to the view expressed in NSH, the Secretary of State had an obligation in considering the deportation of an individual in the interests of national security, to balance against those interests the interests of the individual as a refugee. 2. It had not been shown that the Secretary of State had failed to carry out the necessary balancing act. 3. It was not possible to say that the decision of the Secretary of State to deport the appellant was Wednesbury unreasonable.

Cases referred to in the Judgment:

R v Secretary of State for Home Affairs ex parte Hosenball [1977] 1 WLR 766: [1977] 3 All ER 452. R v Home Secretary ex parte Bugdaycay [1987] 1 AC 514: [1987] Imm AR 250. NSH v Secretary of State for the Home Department [1988] Imm AR 389. R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696: [1991] 1 All ER 720. R v Secretary of State for the Home Department ex parte Karamjit Chahal (No 1) (unreported, QBD, 2 December 1991). R v Secretary of State for the Home Department ex parte Karamjit Chahal (No 2) [1993] Imm AR 362.

Counsel:

N Blake for the appellant; The Hon M Beloff QC and R Jay for the respondent PANEL: Neill, Staughton, Nolan LJJ

Judgment One:

STAUGHTON LJ: Mr Chahal is of the Sikh religion, an Indian national and a Commonwealth citizen. His case illustrates a conflict between two rules of immigration law. First, by section 3(5)(b) of the Immigration Act 1971 he is liable to be deported if the Secretary of State deems his deportation to be conducive to the public good. Secondly, rule 173 of the Immigration Rules (HC 251 of 1990) deals with asylum and refugees, in these terms: A deportation order will not be made against a person if the only country to which he can be removed is one to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Home Secretary (or more accurately each of three successive holders of that office) maintains that the deportation of Mr Chahal to India would be conducive to the public good; Mr Chahal asserts that he is a refugee and entitled to asylum here. The history Mr Chahal first entered the United Kingdom in 1971. He did so illegally, without seeking leave to enter from an immigration officer. But in 1974 he applied to the Home Office and was granted indefinite leave to remain, under the terms of an amnesty for illegal entrants who arrived before 1 January 1973. (Unfortunately for Mr Chahal, this was too late for him to be exempt from deportation under section 7 of the Act, as a Commonwealth citizen). Mr Chahal's wife has been settled in this country since September 1975. Their two children are British nationals, and were born here in 1977 and 1978. From 1 January to 27 May 1984 Mr Chahal was in India. Whilst there he met Sant Bhindranwale, a prominent Sikh religious and political leader. Also whilst there, he was detained by the security forces for 21 days from 30 March and tortured. He was then released without charge. Since then he has not returned to India, but has himself taken a prominent part in Sikh affairs in the United Kingdom, which are divided by faction. He has been an adherent of the International Sikh Youth Federation, which supports independence for the Punjab and the creation of the state of Khalistan. On 11 May 1987 Mr Chahal was convicted at Snaresbrook Crown Court on charges of affray and assault at the East Ham Gurdwara (a Sikh temple). He was sentenced to nine months' imprisonment, and released after serving that sentence on 9 October 1987. Much later, on 27 July 1992, his conviction was quashed on appeal. Meanwhile in December 1987 he and his wife had applied for British nationality. In his case the application was refused, but his wife's application has not yet been determined. The deportation procedure began in August 1990, when the Secretary of State issued a notice to Mr Chahal in these terms: "The Secretary of State has decided that for reasons of national security and other reasons of a political nature, namely the international fight against terrorism, your continued presence in the United Kingdom would not be conducive to the public good. Accordingly, he has decided to make a deportation order against you . . ." Mr Chahal was detained pending any representations which he might wish to make against the order. He has remained in detention ever since. By section 15(3) of the Immigration Act, the remedies of an appeal to an adjudicator and to the Immigration Appeal Tribunal are not available where the decision to make a deportation order is made on the ground that deportation, "is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature." The Secretary of State told Mr Chahal that this rule applied to him, but that he could if he wished make representations to an independent advisory panel. That is a non-statutory procedure set up in 1971. Mr Chahal promptly claimed asylum, on the ground that if returned to India he was likely to be killed because of his strong religious and political beliefs. There followed an extensive and lengthy correspondence between Mr Chahal's solicitors and the Home Office over a period of nearly two years, the solicitors asserting that Mr Chahal was a refugee and entitled to asylum whilst the Home Office maintained that he was not. That correspondence was concerned for the most part with the issue of asylum, and not with the question whether the deportation of Mr Chahal would be conducive to the public good. The latter topic gave rise to representations made by Mr Chahal to the advisory panel on 10 July 1991. Lloyd LJ, as chairman of the panel, ruled that it had no jurisdiction to allow legal representation. At one time that ruling was said to be a misdirection, but the challenge to it has not been pursued. We do not know what Mr Chahal said to the panel, or what other information it received, or what advice it gave to the Secretary of State. On 25 July 1991 he signed a deportation order against Mr Chahal. There was an application for leave to apply for judicial review, in order to quash (i) the decision to make a deportation order, (ii) the refusal of Mr Chahal's claim for asylum, and (iii) the deportation order itself. Leave was granted, and the substantive application came before Popplewell J on 2 December 1991. In the course of the argument it was agreed on behalf of the Secretary of State that, if the asylum decision was held to be flawed, he would reconsider the case. He was thus not insisting at that stage that grounds of national security could override a genuine claim for asylum; and Popplewell J declined to rule on that point. In the event Popplewell J held that the asylum decision could not stand. His ground for reaching that conclusion was plainly that the reasoning of the Secretary of State was inadequate; he said so in those very words, and that the Secretary of State must reconsider the matter in the light of the judgment. In particular, he criticized the decision because it did not say whether the Secretary of State accepted a report of Amnesty International on persecution of Sikhs in India, and if so, why he considered it irrelevant. The correspondence between the Home Office and Mr Chahal's solicitors continued, and on 1 June 1992 the Secretary of State again rejected the claim for asylum. On 2 July he declined to withdraw the deportation proceedings. Those two decisions, together with the decision to continue to hold Mr Chahal in custody were then challenged in a second application for judicial review. Rose J granted leave to apply on 16 July, but on a subsequent application bail was refused. After an application for discovery the substantive hearing began in January 1993 before Potts J. It was argued on behalf of the Secretary of State that once he reached the conclusion that deportation was conducive to the public good, it did not matter whether Mr Chahal was a refugee and entitled to asylum; a deportation order could still be made. The judge rejected that argument. He held that having identified grounds for regarding the applicant as a danger to the security of the country, the Secretary of State was and is required to balance his interests as identified in the Convention relating to refugees and the rules against those of national security. However, the judge held that the Secretary of State had undertaken that task, his decision was not irrational, and it could not be impugned. Consequently the application failed. Mr Chahal appeals. The issues (1) There is a challenge to the decision that the deportation of Mr Chahal would be conducive to the public good for reasons of national security. (2) The Secretary of State by a respondent's notice renews the argument that, if national security is relied on to justify a decision to deport, there is no need to balance the interests of Mr Chahal as a refugee against the interests of national security. (3) The decision to refuse asylum, including the effect of that balancing exercise, is challenged on behalf of Mr Chahal as irrational and therefore perverse. The decision that deportation would be conducive to the public good As already mentioned, the Secretary of State in August 1990 referred to "reasons of national security and other reasons of a political nature, namely the international fight against terrorism". There is some amplification of those reasons in the papers. For example, it is said that Mr Chahal has been a member of the United Kingdom branch of the International Sikh Youth Federation since its inception in 1984; that the group's stated aims are to provide support for the pro-Khalistan movement in the Punjab through propaganda and fund-raising for, among other things, terrorist purposes; and that Mr Chahal is a leading adherent of the more extreme London based facton of the ISYF which has close links with Sikh terrorists in the Punjab. Furthermore, the Home Office is in possession of other information of a confidential nature concerning Chahal. This relates to his activities in the faction of ISYF in which he has played a leading role; and shows him to have been centrally involved in the organisation, planning and financing of terrorism. It is also said: Chahal has been involved in planning and directing terrorist attacks in India, the UK and elsewhere. Of particular importance has been Chahal's role in attempting to direct terrorist activities within the Indian sub-continent. Chahal has been involved in planning parallel activity within the United Kingdom. And later: Mr Chahal has been actively involved in terrorism in the United Kingdom and India. He has been the central figure in the International Sikh Youth Federation's (Southern faction) support for terrorism and has played a leading role in this faction's programme of intimidation directed against other groups within the United Kingdom Sikh community. He has also been involved in supplying funds and equipment to terrorists in the Punjab since 1985. The Secretary of State is also satisfied that there is good reason to believe that the equipment supplied by Mr Chahal has been for use in actual terrorist operations. Mr Chahal has also been involved in planning and directing terrorist attacks in India and the United Kingdom. All that is denied by Mr Chahal. But we cannot determine whether the Secretary of State was right, after considering the report of the advisory panel, to reach those conclusions. Nor can we review the evidence. That was explained by Dillon LJ in NSH v Secretary of State for the Home Department [1988] Imm AR 389 at p 395, and by Geoffrey Lane LJ in R v Home Secretary ex parte Hosenball [1977] 1 WLR 766 at p 783. We have to accept that the evidence justified those conclusions. There were nevertheless two points taken on behalf of Mr Chahal. First it is said that the Home Office attached importance to his "public history of violent involvement in Sikh terrorism", as shown by his 1987 conviction. Mr Wrench in an affidavit sworn on 14 January 1993, after the conviction had been quashed, said that it had not been regarded as evidence of Mr Chahal's involvement in terrorism. I have some doubt about that. But Mr Wrench goes on to say that the Secretary of State had personally reconsidered the case in the light of the Court of Appeal's judgment, and was satisfied that Mr Chahal continued to represent a substantial risk to the national security of the United Kingdom. Secondly it is said that the Home Office was mainly concerned about terrorism in India. Support for that in England might well be a political reason for deportation: a country which harbours terrorists who are promoting attacks in another friendly state is likely to incur odium. But it would not be a threat to the national security of the United Kingdom. I can see some force in that argument. But the Home Office does expressly refer to planning and directing terrorist attacks in both India and the United Kingdom. In my judgment it is impossible for us to say that this decision of the Secretary of State, that the deportation of Mr Chahal would be conducive to the public good for reasons of national security, was irrational, or perverse, or based on any misdirection. Is a balancing exercise nevertheless required? The United Kingdom is a party to the 1951 Convention on the status of refugees, which contains the following provisions: "Article 32 Expulsion 1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority. Article 33 Prohibition of expulsion or return (refoulement) 1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country." For the time being at any rate, English domestic law requires the implementation of those provisions by virtue of rule 161 of the immigration rules: "Where a person is a refugee full account is to be taken of the provisions of the Convention and protocol relating to the Status of Refugees. Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments." Mr Blake, who appeared for Mr Chahal, submitted that compelling reasons of national security (required if the procedure in article 32(2) is not to be followed) must be more than mere "reasonable grounds" in article 33(2). Stuart-Smith LJ was of that opinion in the Divisional Court case of Re H (which became NSH in the Court of Appeal), and I agree with him. But it may not make much difference in practical terms, and does not in this case. If the Home Secretary was entitled to conclude, on the basis of confidential information from informers and such like, that Mr Chahal was actively engaged in terrorism, then there are both reasonable grounds and also compelling reasons. Or at any rate it would not be irrational of the Secretary of State to reach that conclusion. The major issue is whether the threat to life or freedom in article 33(1) has to be balanced against the danger to the security of the country in article 33(2). Mr Beloff, for the Secretary of State, argues that on the plain wording of the article a refugee may be expelled or returned even to a country where his life or freedom would be threatened, and that no balancing exercise is necessary; expulsion or return is permitted even where the threat to life or freedom is much more serious than the danger to the security of the country. International writers take a different view. Thus Nehemiah Robinson's Commentary on the Convention relating to the status of refugees (1953) p 164 refers to the travaux preparatoires, which showed that there might be cases where the danger to a refugee outweighed the menace to public security. Goodwin-Gill's The refugee in international law p 96 says that "the application of article 33(2) ought always to involve the question of proportionality". Dr Plender's International migration law (2nd edn, 1988) says: "the principle of proportionality operates". I do not find it at all surprising that international lawyers consider the doctrine of proportionality relevant. Despite the literal meaning of article 33, it would seem to me quite wrong that some trivial danger to national security should allow expulsion or return in a case where there was a present threat to the life of the refugee if that took place. In our domestic law the immigration rules seem to me to lead to the same conclusion. Rule 167 deals with deportation where the Secretary of State deems it to be conducive to the public good. In such a case he is required to consider "the relevant circumstances . . . including those listed in paragraph 164". Similarly rule 162 provides: "In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case." And rule 164 likewise lists "compassionate circumstances" among those that are to be taken into account. It follows that I do not agree with the dictum of Neill LJ in the NSH case at p 399: "It may be that in many cases, particularly where a case is near the borderline, the Secretary of State will weigh in the balance all the compassionate circumstances, including the fact that the person is a refugee. But where national security is concerned I do not see that there is any legal requirement to take this course. Indeed article 33.2 of the Convention provides that a refugee cannot claim the benefit of article 33.1 where there are reasonable grounds for regarding him "as a danger to the security of the country in which he is". That is not, with respect, a view that I share. In support of the balancing exercise Mr Blake also referred us to three other international agreements, and what I think he described as international common law. The United Nations Convention against torture and other cruel inhuman or degrading treatment or punishment deals in article 3 with expulsion or return of a person to a state where he would be in danger of torture. Article 7 of the International Covenant on civil and political rights prohibits torture; and article 13 contains provisions similar to article 32(2) of the Convention on the status of refugees. Similar provisions are also found in articles 3 and 13 of the European Convention on human rights. None of those instruments has been incorporated into English domestic law. Where their effect is the same as that of the Convention on the status of refugees, incorporation is unnecessary. If their effect is different from that convention, incorporation might give rise to difficulty. For the present it is enough to say that the Convention on the status of refugees, incorporated by the immigration rules, is all that Mr Blake needs to rely on. The combined effect of that Convention and those rules is in my judgment to show that a balancing exercise is necessary. There is also no need in the present case to rely on an important passage in the speech of Lord Bridge of Harwich in R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696 at p 748: "But I do not accept that this conclusion means that the courts are powerless to prevent the exercise by the executive of administrative discretions, even when conferred, as in the instant case, in terms which are on their face unlimited, in a way which infringes fundamental human rights . . . The primary judgment as to whether the particular competing public interest justifies the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make that primary judgment." Whether that principle on its own would justify us in quashing the decision in this case for want of a balancing exercise is a point on which I need express no opinion. In an extradition case this country would be reluctant to send back someone who was likely to face death on arrival, without charge or trial. Consideration should in my view be given to such circumstances even in a case of deportation, and weighed against any risk to national security if the person remains here. The decision to refuse asylum, and the effect of the balancing exercise Although it has been argued on behalf of the Secretary of State, both here and below, that he is not obliged to carry out a balancing exercise, it is submitted that he has in fact done so. Thus in the letter of 1 June 1992 the Home Office wrote: "The Secretary of State does not consider that Mr Chahal has established a claim for asylum in the United Kingdom under the terms of the UN Refugee Convention. He notes in addition, that in view of the substantial risk which Mr Chahal poses to the national security in the United Kingdom, he would not benefit from the protection of Articles 32(1) and 33 of the UN Convention even if he were to satisfy the Secretary of State as to his claim to refugee status." That passage perhaps suggests to some degree that a balancing exercise has been carried out. In addition there is the affidavit of Mr Nicholas Sanderson of the Home Office sworn on 15 September 1992. This states: "The present Secretary of State likewise considers that there are compelling reasons of national security which require implementation of the deportation order, whatever the position may be in relation to the 1951 Convention." That is repeated in the affidavit of Mr Wrench sworn on 14 January 1993: "I should reiterate that even if the Applicant had been able to satisfy the Secretary of State as to his refugee status it is the Secretary of State's view that the Applicant does not benefit from Articles 32(1) and 33 of the Convention because of the risk he poses to national security . . ." I conclude that the Secretary of State has carried out a balancing exercise; or at least it is not shown that he failed to do so. It is hardly possible for this court to consider whether, after that exercise, the Secretary of State's decision was irrational or perverse. Whilst we have massive evidence as to whether Mr Chahal's life or freedom would be threatened if he were returned to India, we do not have the evidence on which the Secretary of State considers him a risk to national security, for the reasons already indicated. So we cannot balance the threat on the one hand against the risk on the other. What we can do, and have been invited to do at some length by Mr Blake, is to consider the evidence of the threat to Mr Chahal's life or freedom and whether the Secretary of State's assessment of that risk was irrational or perverse. Even that is a difficult enough task, for two reasons. First, we are concerned with what is likely or liable to happen in the future. Evidence as to events that have occurred in the past is only relevant to the extent that it shows what may happen if Mr Chahal is returned to India. Secondly, much of the evidence of persecution and torture in the past is second-hand or even more remote, and can in part be said to be evidence of impression rather than fact. I do not criticize the evidence on that ground. In the nature of things there is unlikely to be direct evidence of the fate of a person who is thought to have disappeared in police custody. But that makes it the more difficult to discover the truth. We have the evidence of Mr Chahal himself that he was detained and tortured in India in 1984. That is supported by medical evidence. There is also evidence that a number of his relatives, some close and some distant, have been tortured and in some cases killed in India between 1982 and 1989. Amnesty International, in a number of reports, speak of many instances of torture in India, of killings by the security forces when it is said that the victim was attempting to escape, and of persons who disappeared while in custody. There is a statement from a Mr Khaira, who visited India in 1989. Whilst there he was detained and tortured, by police officers who "were mostly interested in Mr Chahal . . . They wanted to know about Mr Chahal and kept saying that the Indian government wanted him and that he was a terrorist". I need not go into more detail. The papers even in this court extend to 330 pages, and were nearly three times as much before the judge. Clearly there is a case to consider, that Mr Chahal has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, in terms of article 1 of the 1951 Convention. It does nothing to destroy that case that some members of the Sikh community in India have been guilty of terrorist acts. Thus a Home Office document of January 1992 states as follows: "13. The Indian government face a serious challenge from terrorist violence in Punjab. According to Indian Government figures, nearly 5,000 people, including some 3,000 civilians and members of the security forces and 1,800 terrorists, were killed in Punjab in 1991 alone. Acts of appalling savagery have been perpetrated by Sikh extremists. Trains and buses have been held up and innocent passengers gunned down. Relatives of police officers in Punjab, including women and children, have been singled out for attack; up to 100 have been murdered in 1991. The terrorists have also extended their campaign beyond Punjab, targeting among others, Hindus worshipping at a temple in Uttar Pradesh. 14. Against this grim background, the Government of India has adopted exceptional measures (eg the Terrorist and Disruptive Activities (Prevention) Act 1987) to protect the majority from those who threaten the fabric of the State. Among those the authorities have sought to protect are the majority of ordinary law-abiding and responsible Sikhs, many of whom are frightened to express their views for fear of retribution against themselves or their families from an extremist minority who would never be able to achieve their goals by democratic means. The actions of this minority have in the past helped to sabotage attempts by the central government and moderate Sikh politicians to reach a solution, notably the settlement negotiated in July 1985 by the then Indian Prime Minister Rajiv Gandhi, and the Akali Dal leader, Sant Longowal, in which a number of Sikhs demands were met. Longowal was assassinated by Sikh militants shortly afterwards. 15. The date for fresh parliamentary and state-level elections in Punjab had to be postponed twice in 1991 due to the violence in which over 25 candidates were murdered." In such a situation it is perhaps not surprising (but not excusable) if police officers resort to violence, torture and killings. But it may still give rise to a wellfounded fear of persecution. The Secretary of State observes that India has a constitution which guarantees freedom of religious belief, and an independent judiciary, such that Mr Chahal would only come to harm if he were convicted of crime by due process and in accordance with the law. There is also a letter from the Indian High Commissioner in the United Kingdom to the Parliamentary Under-Secretary for Foreign & Commonwealth Affairs dated 29 June 1992. This reads: "2. We have noted your request to have a formal assurance to the effect that, if Mr Chahal were deported to India, he would enjoy the same legal protection as any other Indian citizen, and that he would have no reason to expect to suffer mistreatment of any kind at the hands of the Indian authorities. 3. I have the honour to confirm the above." I can see no ground for doubting that assurance in any way, still less for concluding that the Home Secretary was irrational to rely on it. But it leaves open the possibility that unauthorized ill-treatment would be suffered by Mr Chahal at the hands of the security forces. Having reconsidered all the evidence before him a second time following the order of Popplewell J, the Secretary of State concluded on 1 June 1992 that Mr Chahal's claim for asylum under the United Nations Refugee Convention was not made out. And the letter of 2 July 1992 said: "The Secretary of State therefore remains of the view that Mr Chahal would be safe from ill-treatment if taken into custody by the Indian authorities wherever he might be held in custody." We can only interfere if this decision was irrational or perverse or otherwise unlawful. In my judgment it is not shown to be any of those things, still less if one weighs against any threat of persecution the risk which Mr Chahal poses to the national security of this country. I would dismiss this appeal.

Judgment Two:

NOLAN LJ: I fully agree with the conclusions reached in the judgments which have been given. I wish, however, to add a judgment of my own because of the importance of the principles involved, and because of the circumstances surrounding this particular case. I take first the appellant's complaint against the decision of the Secretary of State given on 1 June 1992, refusing to grant asylum to the appellant. This letter marked the culmination of correspondence and representations which had been going on ever since the appellant first claimed asylum in August 1990. It begins by stating that in the light of Popplewell J's judgment of 2 December 1991 the Secretary of State has reconsidered all aspects of the case. It explains why the Secretary of State remains unpersuaded by the evidence and representations put forward by Amnesty International and others. It concludes with a lengthy statement of the reasons why, in the opinion of the Secretary of State, the appellant has not established his claim for asylum in the United Kingdom. I think it is worth quoting at least the latter part of the reasons given by the Secretary of State for his decision. They read as follows:- "The Secretary of State has considered what might happen to Mr Chahal on his return to India. Although no request for Mr Chahal's extradition has been made by the Indian Government, the Secretary of State is satisfied -- as was made clear in the information given to Mr Chahal for his appearance before the Secretary of State's Advisory panel that -- Mr Chahal has been actively involved in terrorism in the United Kingdom and India. He has been the central figure in the International Sikn Youth Federation's (Southern faction) support for terrorism and has played a leading role in this faction's programme of intimidation directed against other groups within the United Kingdom Sikh community. He has also been involved in supplying funds and equipment to terrorists in the Punjab since 1985. The Secretary of State is also satisfied there is good reason to believe that the equipment supplied by Mr Chahal has been for use in actual terrorist operations. Mr Chahal has also been involved in planning and directing terrorist attacks in India and the United Kingdom. As stated in Mr Swann's letter of 27 March 1991, the Secretary of State is not aware of any outstanding charges against Mr Chahal in India. But he accepts that, in view in particular of Mr Chahal's admitted involvement in an extremist faction of the ISYF, Mr Chahal might be arrested and charged with terrorist offences on his return to India, under the TADA or other provisions of Indian Criminal Law. Were he to be charged, the Secretary of State believes that Mr Chahal would be subject to prosecution for alleged criminal activities not for his political beliefs or expressions. If Mr Chahal were so charged, the Secretary of State is satisfied that he would receive full protection by the Indian Government from mistreatment while held in custody. The Secretary of State has also considered what might happen to Mr Chahal if he were not arrested by the Indian authorities, but remained at liberty in India. The Secretary of State accepts that Mr Chahal or any other person visiting or living in the Punjab faces some risk of violence both from being caught up in a terrorist outrage or from the activities of members of the security forces acting outside the law, but for reasons earlier explained does not regard this as persecution within the meaning of the 1951 UN Convention on the Status of Refugees. In addressing the risk of returning Mr Chahal to India, however, the Secretary of State has had regard to the risks which might be faced by Mr Chahal in India as a whole, particularly major urban centres such as Delhi and Bombay. The Secretary of State notes that Sikhs live safely in most parts of India outside the Punjab. Mr Chahal would be returned to any international airport of his choice within India and would have no obligation to go to the Punjab if he did not wish to do so. The Secretary of State notes that Mr Chahal left the Punjab twenty years ago and, subject to any further representations which he might wish to make on this matter, the Secretary of State does not consider it unreasonable that Mr Chahal should continue to remain outside the Punjab if he fears to return there, should he be returned to India. For these and the other reasons advanced in this letter and in the letters of 31 January and 27 March 1991 the Secretary of State does not consider that Mr Chahal has established a claim for asylum in the United Kingdom under the terms of the UN Refugee Convention." Under our law, the responsibility for that decision lies with the Secretary of State alone. It is plain from the arguments which have been addressed to us that those who support the appellant's cause believe the Secretary of State's decision to be profoundly mistaken. It cannot, however, be described as irrational. There is no ground upon which it can be set aside as a matter of law. The claim for asylum was thus rejected before the Secretary of State gave his final decision upon the deportation issue, on 2 July 1992. It was not therefore strictly necessary for the Secretary of State to argue, as he has done before Potts J, and us, that he would have been entitled to make the deportation order even if the claim for asylum had been upheld. The argument has been raised, however, and is of considerable general importance. I agree that it should be rejected. The proposition that, in deciding whether the deportation of an individual would be conducive to the public good, the Secretary of State should wholly ignore the fact that the individual has established a well-founded fear of persecution in the country to which he is to be sent seems to me to be surprising and unacceptable. Of course there may very well be occasions when the individual poses such a threat to this country and its inhabitants that considerations of his personal safety and well being become virtually irrelevant. Nonetheless one would expect the Secretary of State would balance the risks to this country against the risks to the individual, albeit that the scales might properly be weighted in favour of the former. This expectation appears to me to be fully justified by the provisions of rules 164 and 167 of the immigration rules. These rules make it clear that, when considering whether to deport a person on the ground that he deems it to be conducive to the public good, the Secretary of State will consider each case carefully in the light of the relevant circumstances known to him, including the personal history, character and conduct of the individual, any compassionate circumstances, and any representations received on the individual's behalf. The obligations thus imposed upon or assumed by the Secretary of State cannot in my judgment be said to have been displaced by the provisions of articles 32 and 33 of the 1951 Convention on the status of refugees relating to decisions taken on grounds of national security. Counsel for the Secretary of State tells us that in any event the Secretary of State did carry out a balancing exercise when reaching the decision to deport which was contained in the letter of 2 July 1992. This appears to me to be borne out by the terms of that letter. Again, I think it is worth quoting it in part. The third paragraph reads:- "The Secretary of State has considered -- in the context of the Amnesty International report and the other incidents referred to in your letter -- the suggestion that, if arrested, Mr Chahal might be liable to be tortured or otherwise mistreated while in prison. In my letter of 1 June, I stated that the Secretary of State was satisfied that Mr Chahal would receive full protection by the Indian Government from mistreatment if held in custody. Furthermore, the Secretary of State has subsequently sought and received assurances from the Indian Government a copy of which is attached and which further satisfies him as to this matter. The Secretary of State therefore remains with the view that Mr Chahal would be safe from ill treatment if taken into custody by the Indian authorities wherever he might be held in custody". The fifth paragraph begins:- "for the reasons stated above the Secretary of State does not accept that your further representations are grounds for Mr Chahal being granted asylum in the UK nor for withdrawing deportation proceedings against him". The letter to which the Secretary of State refers was written by the High Commissioner for India on 29 June 1992, it reads:- "2. We have noted your request to have a formal assurance to the effect that, if Mr Chahal were to be deported to India, he would enjoy the same legal protection as any other Indian citizen, and that he would have no reason to expect to suffer mistreatment of any kind at the hands of the Indian authorities. 3. I have the honour to confirm the above". We were told that such governmental assurances are seldom sought, or given. In the light of that public assurance, and of the other reasons given by the Secretary of State in his letters of 1 June and 2 July 1992, it seems to me impossible for the appellant to maintain that the Secretary of State, when confirming the decision to make the deportation order, had failed to take proper account of the fears expressed for the appellant's safety and well-being. I, too, would therefore dismiss the appeal.

Judgment Three:

NEILL LJ: I have had an opportunity of reading in draft the judgment of Staughton LJ and I am grateful to adopt his account of the relevant facts. The appellant seeks an order of certiorari to quash the Secretary of State's decision to reject the appellant's claim to be recognised as a refugee and his decision to continue with deportation proceedings against the appellant. I shall consider first the appellant's claim to refugee status. The appellant's claim to refugee status The Convention relating to the status of refugees was adopted on 28 July 1951 and entered into force on 21 April 1954. The 1951 Convention, however, was limited to events which had occurred before 1 January 1951. As time went by it was realised that it was desirable to extend the provisions of the 1951 Convention to new refugees. As a result, a Protocol relating to the status of refugees was prepared. This Protocol entered into force on 4 October 1967. The United Kingdom is a party to both the 1951 Convention and the 1967 Protocol. Chapter V of the 1951 Convention contains a number of administrative measures including measures relating to the expulsion and return (refoulement) of refugees. I should set out the terms of articles 32 and 33: "32. Expulsion. 1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority. 3. The Contracting States shall allow a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary. 33. Prohibition of Expulsion or Return (Refoulement) 1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime constitutes a danger to the community of that country." In order to come within the protection of the 1951 Convention and the 1967 Protocol a person has to establish that he is outside the country of his nationality owing to a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion." The burden of proof is on the person claiming the status of a refugee and he has to show the likelihood of his suffering persecution as an individual if he returns to the country of his nationality. The appellant put forward a very substantial body of evidence in support of his application that he should be treated as a refugee. This evidence included: (a) His own evidence that he was detained and tortured in India in 1984. Mr Chahal's evidence was supported by medical evidence. (b) The evidence of a number of relatives of Mr Chahal who had been tortured, or in some cases killed, between 1982 and 1989. (c) The evidence of Mr Khaira, who visited India in 1989 and who was then detained and subjected to torture. The particular relevance of his evidence was that he said that the police officers who had tortured him appeared to be particularly interested in Mr Chahal and indicated that the Indian Government wanted him and regarded him as a terrorist. (d) The reports prepared by Amnesty International containing detailed accounts of torture in India and of persons who had disappeared while in custody or who had been killed while attempting to escape. This evidence clearly required the most careful scrutiny by the Secretary of State. Furthermore, the court too must examine the matter with particular care: see R v Home Secretary ex parte Bugdaycay [1987] 1 AC 514 at 531 per Lord Bridge. Like the judge I have found this a most anxious case. Nevertheless I find it impossible to regard the Secretary of State's decision as perverse or irrational. The Secretary of State has now explained how he viewed the material supplied by Amnesty International. It is clear that the Secretary of State is uncertain about the objectivity of some of Amnesty's sources of information. Furthermore we have before us a letter from the Indian High Commissioner in the United Kingdom which contained a formal assurance to the effect that if Mr Chahal were deported to India "he would have no reason to expect to suffer mistreatment of any kind at the hands of the Indian authorities". In these circumstances it seems to me that the appellant's challenge to the decision of the Secretary of State to refuse him the status of a refugee is bound to fail. I turn therefore to the Secretary of State's decision to continue the deportation proceedings. The decision to deport Mr Chahal The power to make a deportation order is contained in section 3(5) and (6) of the Immigration Act 1971. It is sufficient to refer to section 3(5) which is in these terms: "A person who is not a British citizen shall be liable for deportation from the United Kingdom -- (a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; or (b) if the Secretary of State deems his deportation to be conducive to the public good; or (c) if another person to whose family he belongs is or has been ordered to be deported." In the present case the relevant power is that contained in section 3(5)(b). Section 15 of the 1971 Act (as amended by section 5 of the Immigration Act 1988) contains provisions relating to appeals in respect of deportation orders. Section 15(3), however, provides as follows: "A person shall not be entitled to appeal against a decision to make a deportation order against him if the ground of the decision was that his deportation is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature." It will be seen therefore that if a decision to make a deportation order is made under section 3(5)(b) for one or more of the reasons identified in section 15(3) no appeal will lie under the 1971 Act. Nevertheless, as Staughton LJ has explained, Mr Chahal was able to take advantage of the extra-statutory procedure whereby representations can be made to an independent advisory panel. In the present proceedings the appellant seeks to challenge the Secretary of State's decision to deport him on two principal grounds which can be summarised as follows: (a) That the decision that the appellant represented a threat to national security was perverse and unsupported by any evidence; (b) That the decision to deport was additionally flawed because the Secretary of State had not balanced any possible risk to national security against the real risk that he might be persecuted if he were returned to India. I shall consider first the question of national security. On 5 April 1991 the Home Office produced a statement relating to Mr Chahal for the purposes of the hearing before the Advisory Panel. In paragraph 3 of this statement it was said: "Chahal has a public history of violent involvement in Sikh terrorism. In 1986 he was involved in disturbances at the East Ham Gurdwara and was convicted of assault and causing an affray -- he received concurrent prison sentences of six and nine months. While on remand for these offences he was involved in further disturbances at the Belvedere Gurdwara; he was later acquitted of charges in this connection. These disturbances were related to the aim of gaining control of the Gurdwara's funds in order to finance support and assistance for terrorist actions in the Punjab." The statement continued: "4. The Home Office is in possession of other information of a confidential nature concerning Chahal. This relates to his activities in the faction of ISYF in which he has played a leading role; and shows him to have been centrally involved in the organisation, planning and financing of terrorism. 5. Having regard to the above facts and to the other information of a confidential nature, the Home Secretary concluded that Chahal's continued presence in the United Kingdom was not conducive to the public good for reasons of national security and other reasons of a political nature, namely the fight against international terrorism." On 22 July 1992, Mr Chahal's convictions of affray and unlawful wounding were quashed by the Court of Appeal (Criminal Division). It has therefore been argued on behalf of Mr Chahal in the present proceedings that a central plank in the Secretary of State's case that his deportation was conducive to the public good had been removed. But this argument was countered by the Secretary of State in a passage in the affidavit of Mr Wrench dated 14 January 1993 in which it was stated that following the quashing of the conviction the Secretary of State had personally reviewed the decisions to deport the applicant for reasons of national security and to refuse his application for asylum. The affidavit continued: "The applicant's conviction was only a subsidiary fact concerning his personal circumstances and background in the original decision to deport him and the Secretary of State is satisfied that the applicant continues to represent a substantial risk to the national security of the United Kingdom." On this part of the case also I have felt anxiety. But in the light of the evidence that the matter was reconsidered by the Secretary of State personally following the quashing of Mr Chahal's conviction and the evidence that there is further confidential material in the possession of the Secretary of State which is not before the court I find it impossible to conclude that the Secretary of State's decision was irrational or perverse or unsupported by the evidence before him. The court has the right to scrutinise a claim that a person should be deported in the interests of national security but in practice this scrutiny may be defective or incomplete if all the relevant facts are not before the court. I turn therefore to Mr Chahal's further argument. For the purpose of these proceedings the immigration rules relating to deportation are contained in part XII of HC 251 of 1990. We were referred to several of these rules including the following: "161. Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees. Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments. 162. In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects.

. . .

167. The Secretary of State has the power to deport a person if he deems it conducive to the public good. General rules about the circumstances in which deportation is justified on these grounds cannot be laid down, and each case will be considered carefully in the light of the relevant circumstances known to the Secretary of State including those listed in paragraph 164.

. . .

173. In accordance with the provisions of the Convention and Protocol relating to the Status of Refugees, a deportation order will not be made against the person if the only country to which he can be removed is one to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion." It was argued on behalf of Mr Chahal: (a) That rules 161 and 173 made it clear that a deportation order should not be made against a refugee. (b) That in any event rule 167 made it clear that even where deportation was on the grounds of the public good it was necessary for the Secretary of State to consider all the relevant circumstances as listed in paragraph 164. The circumstances listed in paragraph 164 included the personal history of the person concerned as well as any compassionate circumstances and any representations received on that person's behalf. (c) It was therefore necessary for the Secretary of State to balance the risks to which the appellant might be exposed if he were deported against any perceived risk to national security if he were to remain. On behalf of the Secretary of State on the other hand it was submitted in the first instance that there was no obligation on him to carry out such a balancing exercise in a case where national security was concerned. In support of this submission reliance was placed on the express terms of article 33.2 of the 1951 Convention which provides that the prohibition against the expulsion of a refugee cannot be relied upon by a refugee "whom there are reasonable grounds for regarding as a danger to the security of the country in which he is." In addition we were referred to a passage in the judgment of my own in NSH v Secretary of State for the Home Department [1988] Imm AR 389 at 399 where I said: "It may be that in many cases, particularly where a case is near the borderline, the Secretary of State will weigh in the balance all the compassionate circumstances, including the fact that the person is a refugee. But where national security is concerned I do not see that there is any legal requirement to take this course. Indeed Article 33.2 of the Convention provides that a refugee cannot claim the benefit of Article 33.1 where there are reasonable grounds for regarding him 'as a danger to the security of the country in which he is'." I have now had an opportunity to consider this matter afresh in the light of the careful arguments which were addressed to us. It seems to me that in the NSH case I went too far. It is true that the immigration rules do not have statutory force, but they set out the practice which the Secretary of State is expected to follow. Rule 162 requires the public interest to be balanced against any compassionate circumstances of the case. Furthermore rule 167, which is specifically concerned with deportation on conducive grounds requires that each such case should be considered carefully in the light of the relevant circumstances known to the Secretary of State including any compassionate circumstances. I have therefore come to the conclusion that even in a national security case there is a balancing exercise to be carried out. It was argued on behalf of the Secretary of State, however, that even if a balancing exercise was necessary it had in fact been carried out in the present case. We were referred to a passage in the affidavit of Mr Wrench dated 14 January 1993: "I should reiterate that even if the applicant had been able to satisfy the Secretary of State as to his refugee status, it is the Secretary of State's view that the applicant does not benefit from articles 32(1) and 33 of the Convention because of the risk he poses to national security . . ." It seems to me to follow that in the present case the Secretary of State did weigh the risk that Mr Chahal might be persecuted if he were deported against the perceived risk to the national interest. He decided that the interests of national security prevailed. On this part of the case I would therefore conclude as follows: (1) That the court has power to examine the grounds on which a deportation order is made even where the interests of national security are relied upon, though in practice the court's power of scrutiny may be limited. (2) That notwithstanding article 33.2 of the 1951 Convention the Secretary of State ought to balance the gravity of the risk to national security if the person concerned were to remain against all the other circumstances including any compassionate circumstances and any likely risk of persecution if that person were deported. (3) That on the facts of this case the grounds of national security relied on by the Secretary of State cannot be challenged and that there is sufficient evidence that he carried out the necessary balancing exercise. For these reasons, which are substantially the same as those set out in the judgment of Staughton LJ, I too would dismiss this appeal.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Winstanley-Burgess; Treasury Solicitor