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You are here: BAILII >> Databases >> Special Immigrations Appeals Commission >> N v Secretary of State for the Home Department [2005] UKSIAC 18/2002 (18 February 2005) URL: http://www.bailii.org/uk/cases/SIAC/2005/18_2002.html Cite as: [2005] UKSIAC 18/2002 |
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Appeal Number: SC/18/2002
Date of Judgment: 18th February 2005
"N" | Appellant | |
- and - | ||
Secretary of State for the Home Department | Respondent |
For the AppellantMr C Yeo
For the Respondent Mr T Eicke
Special AdvocateMr I Macdonald QC
Mr K Beal
MR JUSTICE NEWMAN :
"For reasons of national security, namely activities connected with the proliferation of weapons of mass destruction, your continued presence in the United Kingdom would not be conducive to the public good."
In making this decision, the Secretary of State stated he had:
" very carefully considered all the circumstances of [his case] as available to him in relation to paragraph 364 of the Immigration Rules. These include your domestic circumstances, your ties to the United Kingdom, and the length of time you have lived in this country"
and concluded that the interests of national security outweighed the personal considerations touching the appellant.
(a)The appellant was a covert representative of the Khan Research Laboratories (KRL) which is involved in research, development and covert procurement of sensitive equipment which can have nuclear weapons applications;
(b)Since 1991 the appellant had been conducting covert nuclear procurement activities in Britain on behalf of KRL, including one seeking to procure equipment for KRL from UK companies;
(c)Administering KRL's sponsored students in the United Kingdom;
(d)Arranging and overseeing KRL's letters of credit in the United Kingdom;
(e)Acquiring scientific literature for KRL;
(f)Organising the visits of KRL's staff to the United Kingdom; and
(g)Acting as KRL's agent with the UK Patent Office.
(a) he was a representative of KRL (covert or overt);
(b) he was conducting covert nuclear procurement activities in the United Kingdom;
(c) he, at any time, sought to procure equipment for KRL from UK companies;
(d) he administered KRL's sponsored students as alleged or at all;
(e) he acquired scientific literature or arranged visits of KRL's staff.
He asserted that, in the circumstances, it was unlikely that a person recruited locally and performing a relatively humble position at a low salary with the Pakistan High Commission would be engaged in the sort of activities alleged by the Secretary of State. The appellant believed that he must be the subject of mistaken identity and that he had been deported for something he had not done.
The application to revoke the deportation order and this appeal
The law
"390.An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:
(i)the grounds on which the order was made;
(ii) any representations made in support of revocation;
(iii) the interests of the community, including the maintenance of an effective immigration control;
(v) the interests of the applicant, including any compassionate circumstances.
- In the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the court which made the recommendation or the appellate authorities of the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order. However, save in the most exceptional circumstances, the Secretary of State will not revoke the order unless the person has been absent from the United Kingdom for a period of at least 3 years since it was made.
- Revocation of a deportation order does not entitle the person concerned to re-enter the United Kingdom; it renders him eligible to apply for admission under the Immigration Rules.
The Commission's approach to facts since November 2002
"1.A person may appeal to the Special Immigration Appeals Commission against a decision which he would be entitled to appeal against under Part IV of the Immigration and Asylum Act 1999 (the 1999 Act) but for a public interest provision.
(a)......
(b) 'public interest provision' means any of the sections 64(1) or (2) of the 1999 Act".
Thus it is the exclusion of the appellant's right of appeal under section 64(2)(b) of the 1999 Act which automatically triggers his right of appeal to this Commission.
"(a)shall allow the appeal if it considers
(i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or
(ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently, and
(b)in any other case, shall dismiss the appeal."
"So, in deportation cases, the relevant circumstances that an adjudicator can take into account are those in existence at the date of the decision and events that have happened subsequently (such as a fresh marriage) are not admissible, although new evidence of pre-existing facts is admissible".
The learned editors, however, qualify the position by the following:
"However, a number of decisions under the rules involve prediction: whether a business will succeed, whether a couple will live together as man and wife, whether the parties will have accommodation available, whether a student will be able to pursue a course with reasonable success. In these cases, post decision facts that throw light on the decision will be admissible."
The Special Advocates have drawn particular attention to this passage.
"The admission of post decision evidence in these cases is, however, strictly limited to that purpose and still looks back to the date of decision."
If this case was to be treated as a prediction case, events subsequent to it which proved the prediction wrong would not be admissible to establish the decision was wrong. Subsequent facts which prove the prediction to be correct would also be inadmissible. According to the weight which may have been attached to a prediction, the subsequent events could form the basis for a fresh application to the Secretary of State. The Commission's jurisdiction under section 4(a)(i) of the 1997 Act to consider whether the decision or action was in accordance with law or immigration rules can only take place by reference to the law as it was at the date of the decision, applied to the facts as they were at that date. The appellate review of the Secretary of State's exercise of discretion (section 4(a)(ii)) must take place by reference to the facts as they were at the date when the decision was exercised.
The appellant's case
(1)That when considering the concept of the passage of time envisaged by HC 391, some assistance can be gained from the guidance contained in the Immigration Directorate Instructions ("the Instructions") which suggest that three years is the normal period for which a deportation order will be maintained. Further assistance can be derived from the indication that in cases in which a "serious offence has been committed" the deportation order will be maintained for ten or more years. The Instructions suggest that the serious offences under contemplation include those which involve serious violence, drugs or sexual offences.
(2)That the Commission's approach should be guided by the House of Lords decision in Rehman [2003] 1 AC 153 where their Lordships stated that SIAC's jurisdiction enabled a full review of the evidence and the law and a review of the question whether the discretion should have been exercised differently. Their Lordships stated that the Commission should give "commonsense" deference to the Secretary of State's view of what constitutes "national security" and that a broad meaning should be given to the term "national security". It could include activities that were not directly targeted against the United Kingdom but were considered by the Secretary of State to threaten, for example, reciprocal co-operation between states in combating international terrorism.
(i)The Secretary of State had wrongly concluded that he played a part in the procurement of nuclear weapons material; and
(ii)By implication, that, after the passage of time since his deportation (1996-2002), the assessment made in 1996 was no longer a sufficient foundation for him to conclude that in 2002 there was any risk that, if the appellant returned to the United Kingdom, he would engage in such activities.
(1)The appellant did not do the things he was alleged to have done.
(2)If he did do something, as alleged, it was inadvertent and he personally did not and does not represent a threat to national security.
(3)In any event, he was certainly not a risk to national security in 2002, there had been a material change in circumstances and since the normal course is to revoke a deportation order after three years, unless a serious violent or sexual offence was committed, the order should have been revoked.
The Secretary of State's open response on the appeal
(1)In May 1998 the Pakistani authorities, having always protested up to that date that they did not possess and had no intention of possessing nuclear weapons, conducted their first nuclear test.
(2)KRL's proliferation activities have not ceased. It continues to be a substantial participant in Pakistan's nuclear weapons programme to an extent which is very difficult to ascertain.
(3)Pakistan has remained, at all material times, outside the international nuclear non proliferation regime.
(4)The United Kingdom's concern in connection with nuclear proliferation activities was highlighted in early 2002 when it appeared that a nuclear war between Pakistan and India was highly likely.
(5)Pakistan's undoubted possession of a nuclear capability which has emerged between 1998 and 2002 must be seen in a wider context than its possession by Pakistan. Continuing proliferation in Pakistan outside a non-proliferation regime, creates the risk of wider proliferation.
The appellant's continued denial of any connection or any knowledge of and/or connection with KRL
(1)That in the course of the second FCO demarche, the Deputy High Commissioner for Pakistan reported to the Foreign and Commonwealth Office that:
(i)the appellant acknowledged to him that "he was only sending magazines at the request of KRL"; and
(ii)that A Q Khan (the head of KRL) was astonished and upset at the 'singling out' of the appellant. At the very least it is said this implies that the appellant was an employee of KRL.
(2)In his second interview, when asked about KRL, he admitted knowing of KRL and said: "He once went to Jamil's house in Islamabad when visiting Pakistan". He said he had never visited KRL's offices. He knew of Dr A Q Khan as a well-known scientist and had seen his photograph in a newspaper and a television interview with him.
Compassionate circumstances
(1)the fact that he has already lived in the United Kingdom for 25 years and developed a vast social relationship and friendship;
(2)his high cholesterol level;
(3)the fact that his elder brother, now a British citizen, has been living in the United Kingdom for 40 years;
(4)his brother's children's presence in the United Kingdom;
(5)his youngest sister's presence in the United Kingdom with her children for 20 years
Having regard to those circumstances, it is submitted that the Secretary of State should have exercised his discretion to revoke the deportation order.
Conclusion
Further conclusion
MR JUSTICE NEWMAN
Chairman