Secretary of State for the Home Department v Rehman [2001] UKHL 47
The House of Lords held that a threat to national security need not be directed immediately against the United Kingdom. Support for terrorism abroad could create a risk to British security. It dismissed Rehman’s appeal and upheld the return of his case to the Special Immigration Appeals Commission (SIAC) for reconsideration under the correct legal approach.
Facts and procedural history
Shafiq Ur Rehman, a Pakistani national, entered the United Kingdom in 1993 to work as a minister of religion. In December 1998, the Home Secretary refused his application for indefinite leave to remain and notified him of an intention to make a deportation order under section 3(5)(b) of the Immigration Act 1971.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
The Home Secretary alleged that Rehman was involved with Markaz Dawa Al Irshad and supported terrorism in the Indian subcontinent, including through recruitment, fundraising and assistance with training. The Security Service assessed that Rehman and his followers were unlikely to commit violence in Britain, but maintained that his alleged support for overseas terrorism and its possible consequences threatened national security.
SIAC allowed Rehman’s appeals. It adopted a narrow understanding of national security, centred on violence targeted at Britain, its government or people, including foreign reprisals affecting them. It also held that the main allegations had not been established to what it described as a high civil standard of proof.
The Court of Appeal found errors in that approach and sent the case back to SIAC. Rehman appealed to the House of Lords.
Issues
The appeal concerned the scope of national security, the distinction between proving past conduct and assessing future risk, and the weight SIAC should give to the Home Secretary’s assessment. It also raised whether national security, foreign relations and other political reasons had to be treated as separate grounds.
Decision and reasoning
The House unanimously dismissed the appeal on 11 October 2001.
Indirect threats could affect national security
Lord Slynn rejected the requirement that a threat must be directly targeted at Britain. In an interconnected world, action against another state could indirectly threaten the United Kingdom. International cooperation against terrorism could itself protect British security. Nevertheless, national security could not simply justify any reason for wishing to deport someone: there had to be a real possibility of an adverse effect on the United Kingdom.
The statutory categories concerning national security, foreign relations and other political reasons could overlap. The Home Secretary did not have to assign his reasons exclusively to one category, although Rehman still had to receive fair notice of the case against him.
Past facts and future risk were different questions
Lord Slynn distinguished proof of specific past acts from an overall assessment of danger. Particular acts relied upon had to be proved to the civil standard. The wider decision, however, involved evaluating all the available material and predicting future risk, rather than treating each allegation as a separate criminal charge.
Lord Hoffmann explained that the balance of probabilities meant more likely than not; it was not a special higher civil standard. Assessing whether a future security risk justified deportation also required attention to the importance of the security interest and the serious consequences for the individual.
SIAC retained a reviewing role
SIAC could review questions of fact, law and the exercise of discretion. It nevertheless had to give proper weight to the Home Secretary’s responsibilities, information and expertise in assessing national-security risks.
That did not make the decision immune from scrutiny. Lord Hoffmann identified review of its evidential basis and reasonableness, alongside issues outside the executive’s exclusive responsibility, such as whether removal would expose someone to treatment prohibited by article 3 of the European Convention on Human Rights. Lord Steyn likewise stressed that national-security questions were not wholly beyond judicial scrutiny.
Outcome
The case was remitted to SIAC for redetermination. The House settled the legal approach; it did not itself resolve the outstanding factual and evaluative questions or finally determine Rehman’s deportation appeal on its merits.
Judgment: Secretary of State for the Home Department v Rehman [2001] UKHL 47.
