"NSH" v. Secretary of State for the Home Department

"NSH" v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1988] Imm Ar 389

Hearing Date: 23 March 1988

23 March 1988

Index Terms:

Political asylum -- refusal of application by Secretary of State -- approach to decision on refugee status unreasonable -- whether refusal to admit appellant on grounds of national security could be challenged -- whether in the circumstances the appellant enjoyed protection under the Convention. United Nations Convention relating to the status of Refugees (1951), Protocol (1967), arts 32, 33.

Re-entry visa -- whether a person on arrival with a re-entry visa was "lawfully" in the United Kingdom -- whether he was "lawfully" in the United Kingdom after the grant of temporary admission. Immigration Act 1971 ss 3(4), 11(1): HC 169 (as amended) paras 12, 13.

National security -- the extent to which the court will enquire into the reasons which have moved the Secretary of State to conclude that a person constitutes a threat to national security.

Held:

Appeal from the Divisional Court. The appellant was a stateless person of Palestinian descent. While a student in the United Kingdom he married a British citizen. He was then granted twelve months extension of leave. His subsequent application for indefinite leave remained undecided for nearly two years. While that matter was still undecided he was granted two months' leave and a re-entry visa to allow him to travel to the Lebanon to see his sick mother. During his absence his application for indefinite leave was refused on the grounds of national security: on return to the United Kingdom he was refused leave to enter: he was returned to Sofia. A week later he arrived again at Heathrow : he was again refused leave to enter: he claimed political asylum: he was granted temporary admission and in due course his application for asylum was refused.

An application for judicial review was dismissed, although the Divisional Court expressed disquiet at certain aspects of the case and considered that the conclusion by the Secretary of State that the appellant was not a refugee per se had been taken in a way which was unreasonable on Wednesbury principles. The Divisional Court then in effect declined to enquire in detail into the decision that the appellant's exclusion was justified on grounds on national security.

Before the Court of Appeal it was argued by counsel for the appellant that being in possession of a re-entry visa he was "lawfully" in the United Kingdom when he arrived or after he had been granted temporary admission: even if he were not, according to law, he ought, in the events which had happened be deemed to be lawfully in the United Kingdom. It was further argued that there were no reasonable grounds on which the Secretary of State could have concluded that the appellant was a threat to national security.

Held:

1. A re-entry visa was equivalent, under the rules, to an entry clearance certificate: its possession did not, following in re Musisi, make the holder a person "lawfully" in the United Kingdom for the purposes of the Convention.

2. If that where the position in law, the Court had no dispensing power which would enable it to hold that the appellant should be deemed to be lawfully within the United Kingdom.

3. The Court would only go so far in looking behind a decision of the Secretary of State determining that a person was a threat to national security: in this case the Secretary of State had sufficiently particularised the grounds on which he had come to that conclusion: the appellant was outwith the protection of the Convention in that regard.

Cases referred to in the Judgment:

The Zamora [1916] 2 AC 77.

Liversidge v Anderson [1942] AC 206: [1941] 3 All ER 338. Greene v Home Secretary [1942] AC 206: [1941] 3 All ER 288. R v Secretary of State for the Home Department ex parte Hosenball [1977] 1 WLR 766: [1977] 3 All ER 452.

CSSU v Minister for the Civil Service [1985] AC 374: [1984] 3 All ER 935. In re Musisi [1987] AC 514: [1987] Imm AR 250.

In re H (unreported, DC, 31 July 1987).

Anilkumar Ravindrabhai Patel v Immigration Appeal Tribunal [1988] 1 WLR 375: [1988] Imm AR 35.

Counsel:

A Collins QC and E Cotran for the appellant; D Pannick for the respondent

PANEL: Dillon, Neill, Stocker LJJ

Judgment One:

DILLON LJ: The appellant in this case has been referred to as "H". He appeals against a decision of a Divisional Court consisting of Watkns LJ and Stuart-Smith and Mann JJ given on 31 July 1987. By that decision the court, though finding various features of this case unsatisfactory, refused to quash a decision of the Home Secretary which refused to allow H entry to this country as a refugee.

The facts are fully set out in the judgments of the Divisional Court, but to make this judgment intelligible I should sumamrise the more important facts.

H is a Palestinian and a stateless person. He was born in a refugee camp near Sidon in 1951 and is by profession a writer and journalist. He came to England on 10 November 1979, and was given leave to enter for three months as a visitor. On 25 January 1980 he was given leave to remain to study at Middlesex Polytechnic (where he was subsequently granted an MA degree). On 10 July 1981 he married an English woman, and the genuineness of the marriage has not been in question. On 25 October 1982, while his leave to remain as a student still continued, he applied for leave to remain on the basis of his marriage and on

5 July 1983 he was granted 12 months' leave to remain. That was in accordance with normal practice. Then, within the 12 months, he applied on 20 June 1984 for indefinite leave to remain on the basis of his marriage.

No decision was given on that application for nearly two years, despite considerable pressure on the Home Office including pressure from a Member of Parliament.

In April 1986 H was, it seems, told that his mother was ill in Lebanon, and he wanted to visit her there. On the application of the Member of Parliament, therefore, made on 28 April, H was on 29 April 1986 granted by the Home office two months' leave to remain in the United Kingdom, and a re-entry visa to re-enter within that period. Armed with these, he left for Lebanon, via Syria, on 10 May 1986. Four days later on 14 May, the Home Secretary, who knew H had left the United Kingdom, rejected his application for leave to remain in the United Kingdom because of his marriage and gave instructions that he was not to be re-admitted to the United Kingdom.

The rejection was on grounds of national security, and the relevant passage in the Home Office letter of 14 May 1986 to H's solicitors is as follows:

"The Home Secretary has considered information that for a number of years H has been a senior member of the Palestine Popular Struggle Front (PPSF), a Middle East organisation which supports acts of terrorism and as such has himself advocated the use of violence in Western Europe. The Home Secretary has also considered information that H has been involved in clandestine negotiations with members of the Provisional IRA known to be involved in procuring arms for that organisation.

"You will understand that the Home Secretary cannot give further details of this evidence on a matter of national security but he has concluded that H's presence in the United Kingdom is not conducive to the public good. The Home Secretary understands that H is not at present in the United Kingdom and he has instructed that H is to be refused re-admission on the grounds that his exclusion is conducive to the public good in the interests of national security. As this decision has been taken on the Home Secretary's personal direction, under section 13(5) of the Immigration Act 1971 there is no right of appeal to the immigration appellate authorities against this decision.

"In reaching his decision the Home Secretary has taken account of H's marriage to a British citizen and his period of residence in the United Kingdom since November 1979. However, the Home Secretary does not consider that these facts are such as to outweigh the serious risk to national security which he considers H presents."

When, therefore, H arrived at Heathrow on his return on 2 June 1986, he was refused admission, and although, as he asserts in his evidence which is not contradicted, he claimed refugee status, he was forced back to the aircraft which had brought him and returned in that aircraft to Sofia in Bulgaria, its last transit stop before coming to Heathrow.

He came back to Heathrow on 11 June, and was again refused entry. He again claimed refugee status and was detained in this country pending consideration of that claim by the Home Office. He at once started proceedings ex parte for judicial review, and these were adjourned pending the Home Office consideration of his claim for asylum as a refugee. His application for judicial review was supported by an affidavit of Mr Von Arnim, the representative for the United Kingdom of the United Nations High Commissioner for Refugees.

The application for asylum as a refugee was, however, rejected by the Home Office on 25 June 1986. The relevant paragraph in the letter of rejection is as follows:

"H has expressed fears of returning to the Lebanon and also to Syria and Bulgaria. The reasons given by him for those fears have been examined, but in the light of all the information available to him, the Home Secretary does not consider H has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in the Lebanon, nor in Syria or Bulgaria. In reaching this decision the Secretary of State has taken into account the terms of the affidavit of the Representative in the United Kingdom of the United Nations High Commissioner for Refugees but does not accept that H has established a claim to recognition as a refugee in the United Kingdom. Moreover, Article 33(2) of the 1951 Convention relating to the Status of Refugees provides that 'The benefit of the present provision (protection from refoulement) 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 . . .'. The Secretary of State considers that there are reasonable grounds for regarding H as a danger to the security of the country and that, even if he were a refugee, he could not, therefore, claim the benefit of Article 33(1) of the Convention. H's application is refused."

There are three factors that emerge from the foregoing history which I find disturbing, namely:

i After nealry two years' delay, the decision of 14 May 1986 to refuse him leave to remain in the United Kingdom because of his marriage was made in the short period when he was known to be out of the United Kingdom, but to have been issued with a re-entry visa. There was a similar sequence of events, involving a decision to refuse re-entry to a stateless person who was out of the United Kingdom on a temporary visit, but in possession of a re-entry visa, in the case of Anilkumar Ravindrabhai Patel which came before this court on 7 August 1987 and is now reported at [1988] 1 WLR 375. There is naturally suspicion -- even though there is no evidence -- that there are officials in the Home Office who find it convenient that the decisions in such cases should be made while the individuals concerned are temporarily out of the United Kingdom.

ii On the facts set out in H's uncontradicted evidence, his enforced removal to Sofia on 2 June after he had claimed refugee status was a serious breach of paragraph 73 of the relevant Immigration Rules, HC 169 of 1983, and possibly also of paragraph 87; and iii The Home Office decision that H was not a refugee at all -- ie that he did not satisfy the definition of article 1 of the International Convention relating to the status of Refugees -- was unreasonable in the Wednesbury sense, and that conclusion of the Divisional Court has not been disputed in this court.

Whether, however, these disquieting factors have any relevance to the outcome of this appeal is another matter. In justice to the Home Secretary it must be stressed that until 2 or 11 June -- and on analysis it does not matter which

-- neither he or any of his subordinates had any occasion to consider whether or not H was a refugee. Accordingly, the only foreseeable adverse consequence to H of making the decision on security grounds of 14 May in his absence from the United Kingdom was that H was deprived of the right to put his case to the three advisers under paragraph 150 of HC 169 of 1983. But in fact on 26 June, in response, it would seem, to a proposal of the Member of Parliament, the Home Secretary agreed to accord H a hearing before the three advisers, even if he did not qualify for it as of right. The hearing duly took place, but whatever advice the advisers tendered did not lead the Home Secretary to change his view that H should be refused readmission to the United Kingdom on the grounds that his exclusion is conducive to the public good in the interests of national security.

Against that background, each of the issues on this appeal lies in a fairly small compass. All the issues relate to H's position as a refugee and as I understand H's case they are:

1 When H was refused re-entry on 2 and 11 June, was he, as the holder of a re-entry visa currently valid, a refugee "lawfully" in the United Kingdom within the meaning of article 32(1) of the Convention on Refugees?

2 Even if he was not strictly a person "lawfully" in the United Kingdom, should the courts, on his application for judicial review, treat him as if he had been lawfully in the United Kingdom, because of the way he has been treated by the Home Office, as set out above, and in particular because of the way the long-deferred decision on his application to remain was made in his temporary absence?

3 If issue 1 or issue 2 is decided in H's favour, is he entitled to the appeal envisaged in article 32.2 of the Convention, or, at the least, should the case be referred back to the Home Secretary to consider whether there really are compelling reasons of national security which require that he should not be allowed such an appeal? and

4 In any event, has the Home Secretary made out, under article 33.2, reasonable grounds for regarding H as a danger to the security of this country, with the result that H has no right under article 33.1 to object to refoulement to the Lebanon or any other country where his life or freedom would be threatened?

The relevant provisions of articles 32 and 33 of the Convention are as follows:

"Article 32.1. 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 33.1. 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."

So far as issue 1 is concerned, article 32.1 of the Convention was construed by the House of Lords in Re Musisi, [1987] AC 514 in conjunction with section 11(1) of the Immigration Act 1971; see per Lord Bridge of Harwich at p 526. Section 11(1) provides that:

"A person arriving in the United Kingdom by ship or aircraft shall for the purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to this Act."

It was consequently held by the House of Lords that a person who, being a refugee, presented himself to the immigration authorities in the United Kingdom claiming entry, but was refused entry, or was detained or temporarily admitted pending a decision on his application for leave to enter, was not a refugee "lawfully" in this territory.

It is submitted for H that it makes all the difference that he held the re-entry visa, but, in my judgment, that is not so. When H left the United Kingdom on 10 May 1986 to go to the Lebanon, his previous leave to remain in the United Kingdom, including the two months' leave grainted on 29 April 1986, automatically lapsed under the very clear wording of section 3(4) of the 1971 Act. The re-entry visa ranked only as an entry clearance certificate if he presented himself for re-entry during the currency of the visa; that is clear from paragraph 12 of HC 169 of the 1983. The effect of the visa or entry clearance certificate is specified in paragraph 13 of HC 169 of 1983; it is that the passenger who holds an entry clearance certificate, duly issued and still current, is not to be refused leave to enter unless the immigration officer is satisfied of one or other of the matters specified in sub-paragraphs (a), (b) or (c) of paragraph 13. These matters include, however, under sub-paragraph (c) that exclusion of the passenger would be conducive to the public good, which was the ground relied on for refusing H leave to re-enter.

It follows, in my judgment, that the holder of an entry clearance certificate or re-entry visa still requires leave to enter, or re-enter. Until that leave has been granted -- and in H's case, it never was -- he cannot be regarded as "lawfully" in the territory within the meaning of article 32.1 of the Convention. H's arguments on issue 1 therefore fail.

As to issue 2, I can see no legal basis for holding that the court has any dispensing power to declare H within article 32.1 of the Convention if, on the true construction of the Convention as interpreted in the light of United Kingdom immigration law, he is not. Moreover, whatever suspicions there may have been, there is no evidence to warrant a conclusion that the decision of 14 May 1986 was deliberately made during H's absence from the United Kingdom in order to take unfair advantage of him. There is also no basis at all for suggesting that that decision was deliberately so made in order to deprive H of his right of appeal under article 32.2. I would accordingly reject the submissions for H on issue 2.

Issue 3 therefore does not arise.

As to issue 4, it is clear that if H is to be denied the protection of article 33.1 there must in fact have been reasonable grounds for the Home Secretary to have regarded H as a danger to the security of the country; it is not enough that the Secretary of State honestly thought he had reasonable grounds. But it is, because of the national security aspect, necessarily for the Home Secretary and not the court to decide on the strength of those grounds, and the cogency of the evidence he has received. The speech of Lord Atkin in Liversidge v Anderson, [1942] AC 206, is to be taken as setting out the correct approach in law; but it is to be noted that in the parallel case of Greene v The Home Secretary, [1942] AC 284, Lord Atkin was satisfied, by the matters set out with a measure of particularity at pp 240-1 in his speech in Liversidge, that the Home Secretary had shown that he had reasonable cause to believe Mr Greene to be of hostile associations etc within the meaning of Regulation 18B.

Where considerations of national security are said by the Home Secretary to arise, the courts cannot expect, and do not expect, that all details of evidence of matters concerning national security will be put before the courts in civil proceedings. The reasons why that is so have been cogently explained by Geoffrey Lane LJ in a passage in his judgment in R v Home Secretary ex parte Hosenball [1977] 1 WLR 766 from 783 H to 784 H, in which I would respectfully concur.

In the present case, the letter of 14 May 1986 sets out the substance of the information which the Home Secretary has, and which he has considered. H admits that he was for some years a member of the Palestine Popular Struggle Front, though he says that he was only involved in a very junior and part-time capacity; that he served his connection with the PPSF before he first came to the United Kingdom in 1979 and that he does not countenance terrorism. He admits also that he met senior members of Sinn Fein and the IRA, but he says that that was only in the course and for the purpose of his job as a journalist.

The Home Secretary has also said in the letter that he cannot give further details of his evidence on a matter of national security. The letter was not concerned with refugee status, as that had not by then been claimed, but in paragraph 13 of his affidavit Mr Montgomery Pott of the Home Office has testified that the Home Secretary has decided, in relation to H's application as a refugee, that there were reasonable grounds for regarding H as a danger to the security of the United Kingdom and that in consequence H could not claim the benefit of protection from refoulement provided by article 33.1 of the Convention. In adition, Mr Rawsthorne of the Home Office has testified in paragraph 10 of his affidavit that the information on which the Home Secretary's grounds for excluding H from the United Kingdom are based cannot be disclosed because of its sensitive nature.

In these circumstances, the Home Secretary has, in my judgment, sufficiently particularised the grounds on which he has, in the context of article 33.2 regarded H as a danger to the security of the country. He cannot, in view of what has been said in the letter and the affidavits, be required to produce his actual evidence, or to disclose the names of the sources of his information to the court, since that would necessarily involve disclosure to H, contrary, if the Home Secretary is right, to the national interest. It has not been suggested on H's behalf that the Home Secretary's decision can be called Wednesbury unreasonable. The Divisional Court, from which this appeal is brought, sat merely to exercise a supervisory jurisdiction by way of judicial review, not to hear an appeal from the Home Secretary's decision. The Home Secretary has in my judgment shown enough to make it clear that there was no basis on which the Divisional Court could properly quash his decision that there were reasonable grounds for regarding H as a danger to the security of the United Kingdom and that in consequence H cannot claim the benefit of protection from refoulement provided by article 33.1. H therefore, in my judgment, fails on issue 4 also.

For these reasons, which are substantially those of the Divisional Court, I would dismiss this appeal.

Judgment Two:

NEILL LJ: I agree.

There are some disturbing features about this case which Dillon LJ has already identified. I share his concern. Nevertheless, I can find no ground which would entitle the court to interfere with the decision reached by the Secretary of State.

It was submitted on behalf of the appellant that as he was in possession of a re-entry visa when he arrived at Heathrow on 2 June and 11 June 1986 he was "lawfully" in this country within the meaning of article 32.1 of the Convention relating to the status of Refugees. In the alternative it was submitted that even if he was not "lawfully" in this country within the meaning of article 32.1 he should be treated as if he were; it was said that the Home Office should not be entitled to benefit from their own unfairness.

I am unable to accept these submissions. Paragraph 12 of HC 169 (as substituted by HC 503 of 1985) provides that "entry clearances" may take the form of a visa, a letter of consent or an entry certificate and that these "are to be taken as evidence of the holder's eligibility for entry to the United Kingdom".

A person who holds an entry clearance may nevertheless be refused leave to enter because "exclusion would be conducive to the public good": (see paragraph 13 of HC 169 as amended by HC 503 of 1985). It follows, therefore, in my view that until leave to enter is given, the person holding an entry clearance is not yet lawfully in this country.

In the appellant's case leave was refused and accordingly since 2 June 1986 he has not been at any time "lawfully" in this country for the purpose of article 32.1. Moreover, I can see no legal basis for holding that the appellant has to be treated as though he were lawfully in this country because of the way in which the Home Office have dealt with his case.

It was further submitted on behalf of the appellant that the Secretary of State had not given sufficient information to support the assertion that there were reasonable grounds for regarding the appellant as a danger to the security of the country. In addition it was said that there was now powerful evidence to contradict the assertion by the Secretary of State, and that the court was not precluded from investigating a claim based on national security where there was a breach of the rules of natural justice.

It may well be that, save perhaps in most exceptional circumstances, it would not be sufficient for the Secretary of State merely to state that there were reasonable grounds for regarding a person as a danger to the security of the country without giving any information whatever as to the nature of the activities relied upon. In this context it is relevant to refer to the decision of the Privy Council in the Zamora [1916] 2 AC 77; to the speech of Lord Atkin in Liversidge v Anderson [1942] AC 206; and to the speech of Lord Roskill in CSSU v Minister for Civil Service [1985] AC 374 at pp 420 to 423.

In the present case, however, Mr Rawsthorne, in his affidavit sworn on 13 June 1986, has stated in paragraph 5:

"The grounds are that the Home Secretary considered information that for a number of years the applicant has been a senior member of the Palestine Popular Struggle Front (PPSF), a Middle East organisation which supports acts of terrorism, and as such had himself advocated the use of violence in Western Europe. The Home Secretary had also considered information that the applicant had been involved in clandestine negotiations with members of the Provisional IRA known to be involved in procuring arms for that organisation. Further details of the evidence against the applicant cannot be disclosed because of their security nature."

A little later Mr Rawsthorne added in paragraph 10:

"The applicant denies that there is truth in the grounds for excluding him from the United Kingdom. The information upon which those grounds are based cannot be disclosed because of its sensitive nature but I can state that evidence to support the grounds for refusal was presented to the Home Secretary."

In these circumstances it seems to me to be impossible to contend that the court should now require further evidence or information from the Secretary of State. The reasons why a court is reluctant to press for further information in a case such as the present were explained by Geoffrey Lane LJ in R v Home Secretary, ex parte Hosenball [1977] 1 WLR 766 at p 784 in these terms:

"In ordinary circumstances common fairness -- you can call it natural justice if you wish -- would demand that he be given particulars of the charges made against him; that he be given the names of the witnesses who are prepared to testify against him and, indeed, probably the nature of the evidence which those witnesses are prepared to give should also be delivered to him. But there are counterbalancing factors.

"Detection, whether in the realms of ordinary crime or in the realms of national security, is seldom carried out by cold analysis or brilliant deduction. Much more frequently it is done by means of information received. Courts of criminal jurisdiction have for many years indeed, if not for centuries, given protection from disclosure to sources of informaion . . .

"The reason for this protection is plain. Once a source of information is disclosed, it will cease thereafter to be a source of information. Once a potential informant thinks that his identity is going to be disclosed if he provides information, he will cease to be an informant. The life of a known informant may be made, to say the least, very unpleasant, by those who, for reasons of their own, wish to remain in obscurity. Thus, take away the protection, and you remove the means of protection; and when the security of the country is involved, there may be added difficulties. It may well be that if an alien is told with particularity what it is said he has done it will become quite obvious to him from whence that information has been received. The only person who can judge whether such result is likely is the person who has in his possession all the information available. That, in this case, is the Secretary of State himself. If he comes to the conclusion that for reasons such as those which I have just endeavoured to outline he cannot afford to give the alien more than the general charge against him, there one has the dilemma. The alien certainly has inadequate information upon which to prepare or direct his defence to the various charges made against him, and the only way that can be remedied would be to disclose information to him which might probably have an adverse effect on the national security. The choice is regrettably clear: the alien must suffer, if suffering there be, and this is so on whichever basis of argument one chooses."

It was submitted finally that the decisions of the Secretary of State could be challenged because in reaching his conclusion he had not taken into account a material consideration, namely, the fact that the appellant had the status of a refugee.

Here too I fell bound to reject the submission. 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, before reaching a final conclusion. 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 secruity of the country in which he is".

For these reasons, and for the reasons already given by Dillon LJ, with which I agree, I too would dismiss this appeal.

Judgment Three:

STOCKER LJ: I agree that this appeal should be dismissed for the reasons given by my Lords, whose draft judgments I have read.

DISPOSITION:

Appeal dismissed. Leave to appeal to the House of Lords refused

SOLICITORS:

Winstanley-Burgess, London EC1; Treasury Solicitor