R v. Secretary of State for the Home Department, Ex parte Raghbir Singh

RAGHBIR SINGH
(Applicant)
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT GOVERNOR OF WINSON GREEN PRISON
(Respondents)

Court of Appeal: Butler-Sloss, McCowan, Auld LJJ

Deportation - conducive to the public good-national security-whether decision to deport must be taken by the Secretary of State personally-whether section 3(5)(b) of the 1971 Act applied where alleged support for terrorist activities related solely to events outside the United Kingdom-whether court should enquire into "other reasons of a political nature" allegedly justifying deportation. Immigration Act 1971 ss. 3(5)(b), 15(3): HC 395 para. 364.

Renewed application for leave to move for judicial review and for writ of habeas corpus after refusal by Laws J. The applicant was a citizen of India. The Secretary of State had decided to initiate deportation proceedings against him as conducive to the public good, on grounds of national security and "other reasons of a political nature". The applicant was a leading member, it was alleged, of the International Sikh Youth Federation Northern faction.

Before the court counsel argued that it was not evident on the face of the record that, as required by law, the decision had been taken personally by the Secretary of State. Likewise it was not apparent that in coming to his decision the Secretary of State had performed the balancing act required by the rules. He further argued that section 3(5)(b) of the 1971 Act did not apply and could not apply to alleged acts of terrorism which were not directed against or carried out in the United Kingdom. He also submitted that where the Secretary of State relied on "other reasons of a political nature", the court was entitled to enquire into those reasons.

Held

1. The law required a decision under section 3(5)(b) to be "a decision of or on behalf of the Secretary of State"-but in any event it was clear from the papers that the decision had been taken personally by the Secretary of State.

2. It was inconceivable that the Secretary of State in conducting what must be a frequent exercise by him of his powers under this section, would not properly take into account all the relevant balancing factors. It would not normally be incumbent on the Secretary of State to vouch for the fact that he had undertaken that perfectly commonplace exercise.

3. The test of the public good in section 3(5)(b) was not to be circumscribed as counsel suggested: section 15(3) was not exhaustive.

4. It was well-settled that in cases relating to national security the court was not normally entitled to examine the material before the Secretary of State to determine whether his decision was correct, and that would extend to "other reasons of a political nature".

S Kadri QC and R de Mello for the applicant

R Singh for the respondent

Cases referred to in the judgments:

R v Governor of Pentonville Prison ex parte Cheng [1973] AC 931: [1973] 2 All ER 204.

Karamjit Singh Chahal v Secretary of State for the Home Department [1994] Imm AR 107.

R v Secretary of State for the Home Department ex parte Jahromi (unreported, CA, 21 June 1995).

R v Secretary of State for the Home Department ex parte Raghbir Singh [1995] Imm AR 446.

BUTLER-SLOSS LJ:

I will ask Auld LJ to give the first judgment.

AULD LJ:

This is a renewed application by Raghbir Singh for leave to apply for judicial review and for a writ of habeas corpus in respect of decisions of the Secretary of State for the Home Department on 29 March 1995 of his intention to order his deportation and, in the meanwhile to detain him, and of 11 April 1995 so ordering. The Secretary of State made the decisions under power given to him by section 3(5)(b) of the Immigration Act 1971. It provides:

"A person who is not a British Citizen shall be liable to deportation from the United Kingdom ... if the Secretary of State deems his deportation to be conducive to the public good;..."

The decision of 29 March 1995 was communicated to the applicant by a letter to him from a Mr. J Crump of the Immigration and Nationality Department of the Home Office of that date. It read, so far as material:

"The Secretary of State has decided that for reasons of national security and other reasons of a political nature, namely the fight against international 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 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."

The applicant instructed solicitors who, on 4 April, wrote to the Under Secretary of State for the Home Department asking for the Secretary of State's reasons for his decision, notifying the applicant's intention to make representations against it and, in any event, to apply for asylum. On 11 April Mr. Crump replied by letter indicating that his application for asylum would be considered and enclosing a statement of the Secretary of State's reasons for his decision. I quote the material part of that statement:

"Raghbir Singh was born on 2 February 1958 in Salempur, India. He is an Indian citizen. He first entered the United Kingdom on 1 March 1980 in order to marry Kulwinder Kaur, born 19 September 1962. The couple underwent a civil marriage on 26 April 1980 at the Walsall Registry Office ... Raghbir Singh was granted 12 months' leave to remain as a foreign spouse on 12 November 1980. He was granted indefinite leave to remain in the United Kingdom on this basis on 29 April 1982.

Raghbir Singh is the General Secretary of the International Sikh Youth Federation Northern faction ... He is in regular contact with Jasbir Singh Rode, who came to the United Kingdom in 1984 to found an ISYF branch. Rode was excluded from the United Kingdom in 1984 and is now based in Amritsar. The ISYF (N) provides support for the violent pro-Khalistan movement in Indian Punjab mainly through propaganda and fund raising, but also through more direct support for Sikh terrorists fighting for an independent state of Khalistan.

Raghbir Singh is respected and trusted by the Sikh terrorist leadership. His main contact in the Sikh leadership is Lakhbir Singh Brar, a leader of the terrorist group, Khalistan Commando Force (KCF), who is based in Pakistan. He has travelled to Pakistan several times for meetings with the Sikh terrorist leadership, most recently in December 1994.

Since at least 1993, Raghbir Singh has been in charge of a terrorist operation directed from the United Kingdom, to mount terrorist attacks in India. He has raised finance, organised weapon shipments, found recruits from the United Kingdom and elsewhere to take part in the operation and arranged for these men to receive terrorist training.

Having regard to the above facts, and to other information of a confidential nature, the Secretary of State concluded that Raghbir Singh's deportation from the United Kingdom would be conducive to the public good for reasons of national security and other reasons of a political nature, namely the international fight against terrorism."

The applicant disputes much of the facts asserted in that statement, but that is not the main basis for his challenge to the Secretary of State's decision in these proceedings. It could not be because, as Laws J observed on hearing the initial application, a court exercising its judicial review function cannot normally go behind assertions of fact made by the Secretary of State in cases of this kind. Mr. Kadri has made a number of submissions, helpfully prefaced by a useful skeleton argument. The first is that a decision to deport under section 3(5)(b) of the Act must be made personally by the Secretary of State. He claims that it is not apparent on the facts of the decision letters that the Secretary of State has made the decision here. Mr. Kadri has drawn attention to the distinction between the liability to deportation, on the one hand under section 3(5)(b) where the Secretary of State deems it to be conducive the public good, and, on the other hand under section 3(5)(a) which applies to overstayers, and 3(5)(c) which applies to relatives of deportees, where the provisions do not specify the Secretary of State as the decision-maker. Mr. Kadri suggested that the specific mention of the Secretary of State in section 3(5)(b) means that he personally has to make the decision and that a letter signed by an officer in his Department stating that he has done so is not good enough. A decision under section 3(5)(b) must be a decision of or on behalf of the Secretary of State; normally it is not necessary for there to be evidence that he personally made it. I do not see on what basis Mr. Kadri can justifiably argue that the letters from Mr. Crump indicate that the Secretary of State has not made the decision here. The passage that I have read from the first letter of 29 March 1992 began:

"The Secretary of State has decided" and later contains the words: "Accordingly he has decided to make a deportation order." The attachment to Mr. Crump's letter of 11 April, which he described as an amplification of the Secretary of State's reasons for his proposed action, re-stated his decision in paragraph five using the same formula:

"The Secretary of State concluded that Raghbir Singh's deportation from the United Kingdom would be conducive to the public good", etcetera.

On the face of the papers, this is a decision of the Secretary of State. There is nothing to suggest that it is not his, and it is not incumbent upon those appearing on behalf of the Secretary of State to vouch for that fact other than by a production of the decision letters, as they have done. There is, therefore, no arguable ground for judicial review under this head. Mr. Kadri's second submission is that the decision, whoever made it, is unlawful, irrational and unsupported by evidence. The main thrust of his argument was that the reasons given for the decision are directed to the damage the applicant is doing to India in the threat to its national security by his involvement in terrorist activities, and do not suggest that he is doing similar damage to the United Kingdom. The starting point for the consideration of that submission is the test in section 3(5)(b) whether deportation is "conducive to the public good". Standing on its own, I can see no reason to identify what is good for the public by reference only to terrorist activity here which has its immediate results here. The planning and organisation here of terrorist acts abroad are clearly capable of harming the public here, not only in the risk that they create of promoting like action in response in this country from other factions who may not be of the same mind, but also in the damage that they may do to the United Kingdom's international obligations and relations with other states. That Parliament had that consideration in mind is evident from the terms of section 15(3) of the Act, which imposes restrictions on the right of appeal against a deportation order under section 3(5). It is plain from its terms that the test of the public good in that section is not to be circumscribed in the way suggested by Mr. Kadri. It provides:

"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.

Mr. Kadri suggested that the terms "national security" and "reasons of a political nature" in that provision can only refer to what directly affects national security or national political matters. He referred us to the case of Cheng [1973] AC 931 and to passages from the speech of Lord Hodson at page 942B and from the speech of Lord Diplock, particularly at page 945F-H. That was a case of extradition. It concerned the distinction between a crime committed in a jurisdiction and its political motive. It concerned a different formula: "offence of a political character" in a different statutory context. In my view, it does not bear on the question raised by Mr. Kadri whether the expression "reasons of a political nature" refers only to matters affecting this country. In my view, there is no ambiguity about the breadth of the expression "conducive to the public good" in section 3(5)(b). Put simply, and in its applicable opposite sense here, the Secretary of State is entitled to consider whether it is bad for the country for him to remain. Section 15(3) indicates some of the factors that may bear upon that decision but does not do so exhaustively. It is merely identifying particular categories of what I might call public bad in section 3(5)(b) where there is no right of appeal. But even if section 15(3) were exhaustive in the sense of circumscribing the exercise of power in section 3(5)(b), I can see no basis for restricting its meaning as suggested by Mr. Kadri. As to "national security", as Laws J pointed out in his judgment, all sorts of consequences may flow from the very existence of terrorist conspiracies or organisations here, whether or not their outcome is intended to occur abroad. Who knows what equally violent response here this sort of conduct may provoke? As to "reasons of a political nature", it should be noted that that is only part of the formula in section 15(3). In full it is:

"... the relations between the United Kingdom and any other country or for other reasons of a political nature."

I emphasise the word "other" there. It is clear that the provision is intended to embrace both international and domestic reasons of a political nature. It is clear too that the Secretary of State had all those matters in mind from the concluding words of his reasons accompanying the letter of 11 April 1995. I re-quote part of that passage:

"… for reasons of national security and other reasons of a political nature, namely the international fight against terrorism."

As to Mr. Kadri's reliance on the passage from the judgment of Staughton LJ in Karamjit Singh Chahal v Secretary of State for the Home Department [1994] Imm AR 107, 111-112, I observe that the court in that case was not required to determine the point where the immediate results of the terrorist activity upon which the Secretary of State relied were entirely outside the United Kingdom. Accordingly, I see no ambiguity in the terms either of section 3(5)(b) or 15(3). If I am right about that, there is no need to have recourse to the European Convention on Human Rights or any other international instrument, as submitted by Mr. Kadri. Mr. Kadri's third challenge to the Secretary of State's decision is that his reference to "other reasons of a political nature" is justiciable in the sense that it may be examined and tested by this court. It is well established that the courts are not normally entitled in this type of case to examine and determine by reference to the material before the Secretary of State whether he was right. This court has so stated in a number of cases, most recently in ex parte Jahromi (unreported) 21 June 1995. Mr. Kadri also argued in his skeleton argument, although he did not seek to elaborate it today, that it is not apparent from the Secretary of State's decision that he has properly undertaken the exercise of balancing the applicant's individual circumstances against the public interest before making that decision. In the skeleton argument Mr. Kadri referred in particular to the various factors set out in paragraph 364 of HC 395, submitting that the court is entitled to examine whether he has taken them into account. There is no doubt that the Secretary of State must carry out such a balancing exercise before making a deportation order under this provision (see again ex parte Chahal, per Staughton LJ at page 113 and per Neill LJ at page 125). This argument was put to Laws J. He rejected it. He said this in doing so:

"It is not, as a matter of good sense, really conceivable that in carrying out his duties in relation to the asylum application [the Secretary of State] will not be fully appraised of and take into account such circumstances favouring the applicant as may properly be raised."

Similarly, it is inconceivable that the Secretary of State, in conducting what must be a frequent exercise by him of his powers under these provisions, would not properly take into account all the relevant balancing factors that are necessary before making his decision as to deportation. Certainly, there is no indication in the papers that he has not done so. And it would no normally be incumbent upon the Secretary of State to vouch for the fact that he has undertaken this perfectly commonplace exercise when making a decision of this sort. Accordingly, none of the grounds raised ably and concisely by Mr. Kadri have been made out as arguable. There remains the application for asylum, where the applicant can expect the individual circumstances of his case to be considered again and possibly in greater detail. For all those reasons, I would refuse this application.

MCCOWAN LJ:

I agree.

BUTLER-SLOSS LJ:

I agree too and consequently the renewed application to move for judicial review is refused.

DISPOSITION

Application dismissed

Solicitors:

Harbans Singh & Co, Birmingham; Treasury Solicitor