An Iranian refugee who, according to MI5, holds an Islamist extremist mindset and is supportive of ISIL (Islamic State of Iraq and the Levant), has won his appeal against revocation of his refugee status.

If the Home Office decides to revoke a person’s refugee status, there is a right of appeal to the Tribunal. Where the Home Secretary certifies that the decision was taken wholly or partly in the interests of national security, the appeal is heard by the Special Immigration Appeals Commission (SIAC) instead.

This is what happened to the appellant in D8 (Exclusion: Substantive) [2023] UKSIAC 1.

Fear of persecution

D8 had been granted refugee status, following an appeal, due to his pro-Kurdish Facebook posts (which, although opportunistic, were likely to be discovered by the Iranian authorities if he is returned to Iran).  

His refugee status was revoked as the Home Secretary concluded that there were reasonable grounds for regarding him as a danger to the national security of the UK. This is permitted by paragraph 339AC(i) of the immigration rules, which implements article 21(2)(a) of the Qualification Directive and article 33(2) of the Refugee Convention. I will refer to these provisions as the national security exception.

SIAC concluded that D8 continues to have a well founded fear of persecution in Iran:  

The concern in this case is two-fold: that D8 faces risks in Iran owing to either or both of his perceived pro-Kurdish sympathies (based on his Facebook and other political activities) and his perceived pro-ISIL mindset…

…no one can predict what suspicions the Iranians would or might have about D8. Adopting their “hair-trigger” approach, they might just focus on what might be called the Kurdish aspects; they might focus on why D8 was in HMP Belmarsh and the assessment of the British government (discovered during the course of interrogation) that he poses a danger to national security; or they might focus on both. Frankly it matters not for present purposes. There are reasonable grounds for concluding that D8 faces a well-founded fear of persecution in Iran for a Convention reason, namely his perceived pro-Kurdish political activities. [279] to [280]

As such, the key issue was the national security exception. SIAC considered two issues in relation to this exception:

1. Can SIAC decide for itself whether there are reasonable grounds for suspecting that the appellant is a danger to national security?
2. Is a proportionality balancing exercise required?

The answer to the first question is no. The answer to the second is yes.

Appeal on the merits

In an appeal against revocation of refugee status, unlike in an appeal against deprivation of citizenship, the Tribunal is entitled to decide the issues for itself. It is a “full merits” appeal. The Tribunal is not limited to reviewing the Home Office’s decision. D8 argued that it is the same in SIAC.

SIAC disagreed. The national security element of the case can only be challenged on judicial review grounds. For all other relevant issues, it is a full merits appeal. However, national security is different. Decisions as to whether something is in the interest of national security are entrusted to the Home Secretary, who is in the best position to judge what national security requires. Such decisions are not entrusted to the courts (Secretary of State for the Home Department v Rehman [2001] UKHL 47 at [26], [50], & [57]). SIAC held (at [153]) that conducting a full merits appeal in relation to national security would be contrary to Rehman, which formed the basis for the Supreme Court’s decision in Begum v Special Immigration Appeals Commission & Anor [2021] UKSC 7 (our write up of that is here).

SIAC was unwilling to decide for itself whether D8 had an extremist mindset and supported ISIL (at [205]). The assessment of the threat to national security is evaluative and subjective and is not a matter SIAC can determine for itself.

However, the impact of this finding is diluted somewhat by SIAC’s conclusion on the second issue.

A balancing exercise

SIAC held that a “strict approach” must be taken to the national security exception. It is a measure of last resort (at [176]). This was the conclusion of the Court of Justice of the European Union in T v Land Baden-Wurttemberg [2016] 1 WLR 109, which was binding on SIAC (see [173]). The exception should only be applied where no other measure is possible or sufficient for dealing with the threat.

The Home Office argued that the decision in T did not apply as no removal decision had been made. This was rejected by SIAC as it seeks “to draw and artificial distinction based on form rather than substance” [179]. It would be odd if the meaning of the national security exception changed depending on whether the proceedings were directly concerned with removal.

In order to comply with T and the use of the national security exception as a last resort, the level of danger to national security must be balanced with the practicality of surveillance in the UK (at [187]). Return to Iran must only be contemplated as a last resort where no other measures are suitable. The level of danger to national security is not balanced against the level of danger to D8 if he is returned to Iran, as this is prohibited by primary legislation (Anti-Terrorism, Crime and Security Act 2001, section 34(1)(b)). However, the Home Secretary:

…must balance the degree of danger to national security… against the cost, practicability and feasibility of any measures that may be taken to ameliorate the risk; and must demonstrate that she has regarded the Article 33(2) exclusion as a measure of last resort. If it is reasonably apparent from the available evidence that the Secretary of State has carried out that analysis, then the Commission’s role is limited to carrying out its post-Begum subordinate function. If, conversely, it is clear from the CLOSED assessments in particular that the relevant analysis has not been performed and that it is not evident to the Commission what the outcome would have been had it been carried out, then the Commission should be driven to conclude that the Secretary of State’s conclusion as to danger to national security is flawed. [194]

In the particular circumstances of D8’s case, after hearing evidence and submissions on the national security assessment in a closed hearing, SIAC held that the Home Office’s approach was flawed (at [283]). No balancing exercise was carried out. His appeal against revocation of his refugee status was therefore allowed.

Conclusion

This is a complicated and lengthy judgment. Given the issues involved, I would not be surprised if it is appealed to the Court of Appeal. As such, this may not be the last word on the correct approach to the national security exception. However, for the time being, revocation of refugee status and return to persecution may only be used as a last resort where no other measures can sufficiently address the risk posed to national security.  

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