The CoA was asked whether there was a requirement to carry out a balancing exercise when a person is considered a ‘danger to national security’.
Background:
The respondent, D8, is an Iranian national of Kurdish ethnicity and a Sunni Muslim. In January 2016 he left Iran and travelled to the United Kingdom (UK) via Turkey, arriving in the UK in a clandestine fashion in a lorry in February of 2016. He claimed asylum but his application was refused. In March 2017, an appeal to the First Tier Tribunal (FTT) succeeded, despite the tribunal believing that D8's posting on Facebook and his attendance at pro-Kurdish rallies was opportunistic. The FTT noted that D8 would be at real risk of persecution if returned to Iran.
On the 23rd of April 2017, D8 was granted five years' leave to remain as a refugee. In February 2020 D8 travelled to the Kurdish region of Iraq for at least a month. On the 2nd of April 2020, the Secretary of State excluded D8 from the UK on the basis that his presence was not conducive to the public good for reasons of national security based on D8’s Islamist mindset and support for the Islamic State (IS).
On the 24th of April 2020, D8 was sent a letter notifying him of the Secretary of State's intention to revoke his refugee status and his leave to remain was cancelled. His status was formally revoked on 15th October 2020. D8 challenged this decision before the Special Immigration Appeals Commission (SIAC).
On 23rd March 2021 D8 returned illegally to the UK on a small boat from France and was detained and claimed asylum. His claim was refused on 8th July 2022 on national security grounds.
SIAC ruled that the revocation of the refugee status was unlawful as the Secretary of State could not prove that D8 had returned openly to Iran and that, based on the evidence, SIAC found that D8 would face at least a real risk of torture if returned.
Decision:
The CoA upheld the Secretary of State's appeal, agreeing that no balancing exercise was mandated by law.
The Court clarified that the CJEU decision in T forms part of retained EU law and it does not require the Secretary of State to carry out the balancing exercise between the degree of national security threat posed by an individual against the cost, practicability, and feasibility of measures to mitigate that threat before revoking refugee status. Once a refugee is deemed a danger to national security, the decision to revoke does not require a balancing of risk against feasibility. The balancing in revocation decisions is explicitly prohibited by the Anti-terrorism, Crime and Security Act (ATCSA) 2001.
The Judge analysed what constitutes a danger to national security as expressed in paragraphs 334 and 339AC of the Immigration Rules and the materially identical provisions of Article 33(2) of the Refugee Convention and Articles 14(4) and 21(2) of the Qualification Directive. The danger must be serious as “Something which is unlikely or minor could not be regarded as a danger to national security at all.” The Judge continued by noting “The importance of a decision that a person is a danger to national security is illustrated by the fact that such a decision will often be made by the Secretary of State personally.”
The Court noted that Article 33(2) of the Refugee Convention provides a clear-cut exception to non-refoulement laws, allowing for revocation without additional proportionality assessments.
Implications:
This landmark judgement addresses the revocation of refugee status on national security grounds. It reinforces the broad discretion afforded to the Secretary of State in national security matters. Indeed, once the Secretary of State establishes that a person constitutes a danger to national security, they can revoke their refugee status without requiring any proportionality analysis or balancing exercise.
In a sense, this decision underscores the limit of judicial review and the Court’s role in reviewing revocation decisions. It is clear then that the UK prioritises national security concerns over individual refugee protections.
