R v. Secretary of State for the Home Department, Ex parte Ahmad Moamen Zadeh Jahromi

AHMAD MOAMEN ZADEH JAHROMI
(Applicant)
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Respondent)

21 June 1995 Court of Appeal: Nourse, Roch, Hutchison LJJ Deportation-on grounds of national security-wording of decision letter did not reflect precisely the wording of the Act-whether Secretary of State had applied the wrong test-whether the reasons given by the Secretary of State were adequate. Immigration Act 1971 s. 3(5)(b): Prevention of Terrorism (Temporary Provisions) Act 1989 ss. 2(1), 3, 18. Renewed application for leave to move for judicial review, following refusal by Laws J. The applicant was a citizen of Iran. The Secretary of State had decided to initiate deportation proceedings against him pursuant to section 3(5)(b) of the 1971 Act on the grounds of national security. The decision letter had stated "your continued presence in the United Kingdom would not be conducive to the public good": the 1971 Act contained the wording his deportation to be conducive to the public good". Counsel argued that the different wording used in the refusal letter suggested that the Secretary of State had applied the wrong test. The decision letter had also gone no further than to state "reasons of national security, namely the likelihood of your involvement in terrorist activities". It was submitted by counsel that even taking account of the limited requirement for reasons to be given in cases involving national security, that reason was inadequate.

Held

1. The different wording used in the decision letter from that used in the 1971 Act was of no significance: if the decision letter were, as it should be, read as a whole it was clear that the Secretary of State had applied the correct test.

2. The reason given in the decision letter was not in itself adequate. Had it stood on its own, leave to move for judicial review would have been granted. Further reasons, adequate in the circumstances, were however before the court in affidavits.

P O'Connor QC and T Gallivan for the applicant

R Singh for the respondent

Cases referred to in the judgments:

R v Secretary of State for Home Affairs ex parte Hosenball [1977] 1 WLR 766: [1977] 3 All ER 452. Bugdaycay and ors v Secretary of State for the Home Department [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 Cheblak [1991] 1 WLR 890: [1991] 2 All ER 319. R v Secretary of State for the Home Department ex parte Jahromi (unreported, QBD, 12 April 1995).

NOURSE LJ:

I will ask Roch LJ to deliver the first judgment.

ROCH LJ:

This is a renewed application for leave to move the High Court for judicial review of the Secretary of State's decision of 9 March this year to deport the applicant for reasons of national security. The application for leave to move came originally before Laws J, who refused it on 12 April this year. The applicant is a citizen of Iran. He is now 28 years of age, having been born on 21 March 1967. He first came to the United Kingdom as a student in approximately 1985 in order to study electronic engineering at Wolverhampton Polytechnic. Prior to coming to the United Kingdom an attempt had been made by the Iranian authorities to enlist the applicant in the war which was then being fought between Iran and Iraq. The applicant says that he declined to enlist and in fact attended an organised demonstration against the war. Following that he absconded to Kuwait and sought political asylum in that country, which he was subsequently granted. Shortly after receiving political refugee status in Kuwait the applicant came to the United Kingdom as a student. Throughout the time he has been in the United Kingdom the applicant claims to have been an active member of an organisation which is opposed to the present regime in Iran. The applicant has had temporary asylum in the United Kingdom for the last four years and claims to be unable to return to any other country. Since his arrival in the United Kingdom he has been involved in local politics on a religious basis and has become involved in disputes between the Sunni and Shiite Muslims. The applicant has attempted to convert persons to the Islamic faith and says that as a result of those activities he has become unpopular with many organisations, which he does not identify. The applicant maintains that as a result of this unpopularity he has been reported to the police, who have taken an active interest in him. He has on some six occasions been raided by the police on the basis that he was suspected of some form of terrorist activity. The applicant maintains that there never has been any evidence to support these allegations and on each occasion that he has been detained by the police he has been released without charge. In the application and the affidavit of the applicant's solicitor in support of the application it is said that the applicant has in his possession various books relating to nuclear physics, which have been seen by the police when the police have raided the applicant's home. Such books, it is said, are books used by him in the course of his studying electrical engineering and are possessed by him for totally innocent purposes. The applicant's present status is that he is a person who has temporary admission to the United Kingdom on the basis that he has made an application for asylum which is still pending. The applicant was arrested on 9 March of this year, the day on which the Secretary of State made his decision to deport the applicant. The applicant was notified by letter of that date of the Secretary of State's decision, which was in these terms:

"The Secretary of State has decided that for reasons of national security, namely the likelihood of your involvement in terrorist activity, 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 by virtue of Section 3(5)(b) of the Immigration Act 1971, requiring you to leave the United Kingdom and prohibiting you from returning while the order remains in force."

Prior to the matter being heard by Laws J on 12 April, an affidavit of Patricia Anne Liver, a higher executive officer in the Immigration and Nationality Department of the Home Office, was filed, that affidavit being sworn and filed on 11 April 1995. It is necessary to set out the material parts of that affidavit:

"2.The purpose of this affidavit is to explain to the court something of the background to the decision of the Secretary of State to deport the applicant.

3. On 6 March 1995 the Secretary of State personally directed that the applicant be served with notice of intention to deport under Section 3(5)(b) of the Immigration Act 1971, on the grounds that, for reasons of national security, his deportation was deemed to be conducive to the public good. That decision was conveyed to the applicant in the form of a letter dated 9 March 1995.

4. The reason for the decision was that the Secretary of State had seen material which led him to the view that the applicant had been concerned in the planning of terrorist activity within the United Kingdom and that his involvement was likely to continue. To give further reasons would be damaging to national security and incompatible with the protection of intelligence sources.

5. I understand that at the hearing on 7 April 1995 reference was made to the wording of the first sentence of the Secretary of State's letter of 9 March and the fact that the wording was not in identical terms to that contained in Section 3(5)(b). For the avoidance of doubt, the Secretary of State intended to rely on the power contained in Section 3(5)(b) and continues to do so."

Since the decision of Laws J, a further affidavit has been sworn on behalf of the Secretary of State by Richard George Riley, who is also a higher executive officer in the Immigration and Nationality Department of the Home Office. That affidavit was sworn on 19 June 1995. Paragraphs 2 and 3 of that affidavit read:

"2.I make this affidavit further to the affidavit of Patricia Anne Liver on behalf of the respondent herein, and in order to confirm that, in reaching his decision to deport the applicant under Section 3(5)(b) of the Immigration Act 1971, the Secretary of State carried out the balancing exercise required to be carried out in all deportation cases. In other words, in considering whether deportation was the right course on the merits, the Secretary of State weighed public interest against all the compassionate circumstances of the applicant's case known to him, with reference to those matters listed in paragraph 364 HC 395.

3. Quite apart from the consideration of the applicant's asylum claim, the Secretary of State will, of course, consider any further representations made on behalf of the applicant in respect of his compassionate circumstances at any stage before deportation actually takes place."

The applicant wishes to challenge that decision on two grounds. First, that the Secretary of State had misdirected himself as to the test which section 3(5)(b) of the Immigration Act 1971 requires him to apply. Second, that the Secretary of State has failed to give a reason for his decision or alternatively the reason given is inadequate. Mr. O'Connor QC for the applicant relies, in respect of his first submission, on the difference between the wording of the decision letter and the wording of section 3(5)(b). The sub-section reads:

"A person who is not a British citizen shall be liable to deportation from the United Kingdom

(b)If the Secretary of State deems his deportation to be conducive to, the public good.

The wording of the decision letter is:

"Your continued presence in the United Kingdom would not be conducive to the public good."

Mr. O'Connor suggests that the difference in the two wordings is not a mere matter of semantics and that the Secretary of State may have misdirected himself. It is the deportation that must be conducive to the public good. The Secretary of State might, if he had had that in mind, have required a higher standard of information to justify the making of a deportation order than he would require to certify passively that a state of affairs existed, namely that the applicant's continued presence in this country would not be conducive to the public good. Mr. O'Connor submits that the decision not being phrased in accordance with the statutory power indicates that the Secretary of State has applied the wrong test. Mr. O'Connor gave the example of a person who had been active in terrorist activity in the past but at the time of the Secretary of State's consideration whether to make a deportation order that person had become seriously ill and incapacitated and was in hospital. Mr. O'Connor submitted that the decision whether or not to make a deportation order in such a case would probably be different if the Secretary of State asked himself "whether the deportation of that person would be conducive to the public good?" or whether he asked himself "whether the individual's continued presence in the United Kingdom would not be conducive to the public good?" Mr. Singh on behalf of the Secretary of State submitted that if the whole of the first paragraph of the decision letter is read, it is quite clear that the Secretary of State had in mind the terms of section 3(5)(b). If there could be any doubt as to that, then that doubt was removed by the third paragraph of Miss Liver's affidavit. In any event, submitted Mr. Singh, if the applicant has indeed been involved in the planning of terrorist activity in the United Kingdom, his deportation must be conducive to the public good. Mr. Singh told us that this wording is standard in letters communicating the Secretary of State's decision to make a deportation order and that it was significant that this point had not been raised in earlier cases although counsel for the applicants in those earlier cases had been very experienced in this field of the law. Mr. Singh finally pointed out that the example given by Mr. O'Connor was not the facts of this case. It would be at the stage of deciding whether a deportation order should be implemented that the illness of the potential deportee would be considered by the Secretary of State. In my judgment there can be no room for doubting that the Secretary of State applied the right test in making this deportation order. That is quite clear from a reading of the whole of the first paragraph of the decision letter and the third paragraph of Miss Liver's affidavit which refers to the Secretary of State personally taking the decision that the applicant's deportation was conducive to the public good. On the facts of the present case in my opinion the difference between the wording of the sub-section and the wording of the first sentence of the decision letter is a matter of semantics. The involvement in terrorist activity in the United Kingdom, whether as a planner or as a committer of acts of terrorism, must mean that that person's deportation is conducive to the good of the public of this country. Mr. O'Connor conceded that if this court thought that on the facts of this case a decision to make a deportation order was inevitable then that would be a good reason for exercising the court's discretion to refuse leave to move for judicial review. In my judgment leave on this ground should be refused not as a matter of discretion but because there is no reason for thinking that the Secretary of State has misapplied the law. Mr. O'Connor's second ground is that the Secretary of State has failed to give a reason for his decision or alternatively the reason given is inadequate. Mr. O'Connor accepted that the merits of decisions concerning national security are for the executive and are not justiciable by the courts. Further, Mr. O'Connor accepted that sources of information on matters of national security should not be disclosed and as a consequence the reasons required for a decision involving national security may be legitimately restricted. Nevertheless Mr. O'Connor submitted that the fairness of the decision-making process of which the giving of reasons is a part may be susceptible to judicial review and the court can also act on grounds of irrationality in the area of national security although the scrutiny of the courts may well be limited. Mr. O'Connor's argument is that in the present case the Secretary of State in giving reasons has gone below the bare minimum beneath which the courts will not allow the Secretary of State to go even in cases involving national security. Mr. O'Connor drew our attention to earlier cases involving deportation orders such as R v Secretary of State for Home Affairs ex parte Hosenball [1977] 1 WLR 766, NSH v Secretary of State for the Home Department [1988] Imm AR 389, and R v Secretary of State for the Home Department ex parte Cheblak [1991] 1 WLR 890, in which the grounds given for the deportation orders were much fuller than the grounds given in the present case. Mr. O'Connor said that the giving of proper reasons was particularly important in the present case because if the deportation order was implemented, the probability was that the applicant would be returned to Iran where his liberty, if not his life, would be in danger because of his opposition to the present regime and his refusal to enlist in the Iranian army during the Iran/Iraq war. Mr. O'Connor reminded us of those passages in the speeches of Lord Bridge and Lord Templeman in R v Secretary of State for tile Home Department ex parte Bugdaycay [1987] AC 514 at page 531F and 537H. Moreover, suggested Mr. O'Connor, there was a strong risk of false information having been supplied to the Secretary of State, referring us to paragraphs 4 to 8 of the applicant's solicitor's affidavit. Mr. O'Connor stressed the absence of a right of appeal against the Secretary of State's decision to make a deportation order and drew our attention to the alternative procedure of the Panel of Advisers to assist the Secretary of State based upon the statement of the then Home Secretary to the House of Commons on 15 June 1971. That procedure did not allow for the applicant to be legally represented although he could have the assistance of a friend when making representations to the three advisers. Mr. O'Connor's point was that the Panel of Advisers would reach a better decision if the Secretary of State gives reasons which enable the potential deportee to identify and deal with the particular terrorist activity in which he is alleged to have been involved. Here, although the Secretary of State had gone beyond a bare assertion of reasons of national security, the words "the likelihood of your involvement in terrorist activity" were so vague that the applicant would not be able to make any meaningful representations to the Advisory Panel. The Secretary of State was not even saying that the applicant was involved in terrorist activity; he merely referred to the likelihood of the applicant being involved. On an intervention by my lord, Nourse LJ, Mr. O'Connor accepted that "likelihood" meant "probability". The submission went on that "terrorist activity" was a very general term, and Mr. O'Connor took us to the Prevention of Terrorism Act to show the wide range of acts ancillary to terrorism which are made criminal offences by sections in that Act such as section 2(1), section 3 and section 18. The submissions made on behalf of the applicant on this second ground have caused me to consider very carefully whether the refusal of leave to move was and is correct in this case. If the matters contained in the applicant's solicitor's affidavit of the applicant's opposition to the present regime in Iran and to its waging of war against Iraq are true, then the implementation of the deportation order, if it involves a return of the applicant to Iran, will no doubt have very serious consequences for him. On this aspect of the case it has to be observed that the applicant has in the past obtained political asylum in Kuwait. The reason given in the decision letter, had it stood on its own, would have led me to the conclusion that leave to move should be granted. I accept Mr. O'Connor's submission that the words "the likelihood of your involvement in terrorist activity" standing on their own hardly take the matter beyond a bare assertion that the deportation order is being made for reasons of national security, it being accepted that the Secretary of State may not simply play the national security card"; that he must give such reasons as he can to a potential deportee. The matter does not stop at that point. The affidavit of Miss Liver expands the reason given in the letter of decision by saying that the Secretary of State has seen material which led him to the view that the applicant has been concerned in the planning of terrorist activity within the United Kingdom and that his involvement was likely to continue. Then the affidavit states "to give further reasons would be damaging to national security and incompatible with the protection of intelligence sources. The law is, in my opinion, clear that unless there is evidence that the Home Secretary in asserting that the giving of further reasons would be damaging to national security and incompatible with the protection of intelligence sources is acting otherwise than in good faith, the courts must and will accept that that is the position and make no further inquiry into the Home Secretary's reasons; see ex parte Cheblak (supra) for example at page 909B where Beldam LJ said:

"In my judgment the statement in the affidavit filed on behalf of the Home Secretary that on grounds of national security the deportation of the applicant is deemed by the Home Secretary to be conducive to the public good and that to disclose further details of evidence against the applicant would pose an unacceptable risk to national security is decisive of the application for judicial review."

It has to be remembered that the applicant, although having no right of appeal against the Secretary of State's decision, is entitled to make representations to the Independent Advisory Panel, known as "The Three Advisers". The applicant may appear before them in person and may have the assistance of a friend in making representations, although he may not be legally represented. He may make such representations as he considers appropriate and call others to make representations on his behalf. The Advisory Panel are under an obligation to ensure that a person such as the applicant is able to make his points effectively. The members of the Panel will ask such questions as they can, compatible with national security and the protection of intelligence sources, as will direct the potential deportee's attention to the matters with which he should deal. The Advisory Panel sees all the material on which the Secretary of State has acted, and no doubt weighs the representations made by and on behalf of the potential deportee against that material. The president of the Advisory Panel is a senior and eminent member of the judiciary. The Advisory Panel has functioned effectively since 1971. The conclusion that I have reached on the second ground relied upon by Mr. O'Connor is that the law is settled and clear, namely that the contents of the fourth paragraph of Miss Liver's affidavit are decisive of this application, and that the application must be refused. I reach that conclusion with less misgiving in the knowledge that the applicant is still able to make representations to the Advisory Panel.

HUTCHISON LJ:

I agree.

NOURSE LJ:

I also agree.

DISPOSITION

Application dismissed

Solicitors:

Maliks, Manchester; Treasury Solicitor