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

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	12 February 1993
Citation / Document Symbol	[1993] Imm AR 362
Cite as	R v. Secretary of State for the Home Department, Ex parte Chahal, [1993] Imm AR 362, United Kingdom: High Court (England and Wales), 12 February 1993, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b62620.html [accessed 24 May 2023]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte CHAHAL

Queen's Bench Division

[1993] Imm AR 362

Hearing Date: 12 February 1993

12 February 1993

Index Terms:

Deportation -- national security -- whether the reference of the case to the Advisory Panel was contrary to the Geneva Convention -- whether an asserted likelihood of the applicant being exposed to torture if returned to his native country was a conclusive reason for his not being deported -- the extent of the Secretary of State's obligation to put evidence before the court in cases involving national security -- the balancing act the Secretary of State was obliged to perform. Immigration Act 1971 (as amended) ss 3(5)(b), 15(3): United Nations convention on the status of refugees 1951 (Protocol 1967) arts 32(2), 33: United Nations Convention against Torture (1984) art 3: European Convention on Human Rights art 3. HC 251 paras 161, 162, 167, 173.

Political asylum -- alleged terrorist activities by applicant -- claimed fear of persecution in native country -- whether Secretary of State had given proper weight to the affidavit evidence before him -- whether he had given sufficient reasons for rejecting evidence supporting the application -- whether the decision was irrational. HC 251 para 161. United Nations Convention on the status of refugees 1951 (Protocol 1967) art 1(a)(2).

Held:

The applicant for judicial review was a citizen of India whom the Secretary of State had refused to recognise as a refugee and whom he had decided to deport on grounds of national security. The applicant had entered the United Kingdom illegally in 1971: his position had been regularised under the amnesty of 1974. He was involved in the International Sikh Youth Federation and the Secretary of State had concluded that he had been actively involved in terrorism in the United Kingdom and India.

An earlier decision to refuse the applicant political asylum and, in consequence, to deport him had been quashed by Popplewell J on the ground that the Secretary of State had given inadequate reasons for rejecting evidence put forward to demonstrate that the applicant had a well-founded fear of persecution if returned to India: in particular the court then found that relevant Amnesty International reports had not been, it appeared, fully considered.

The Secretary of State had subsequently reviewed the case but had adhered to his decision not to grant the applicant political asylum and to deport him to India.

Before the court, on this application for judicial review of those later decisions by the Secretary of State, it was argued that those decisions were unreasonable, in the light of all the evidence. No adequate reasons had been advanced for rejecting the supportive evidence in the Amnesty International reports. The applicant had only been allowed to put his case, without legal representation, to the Independent Advisory Panel: in that regard he had been denied the protection of article 32(2) of the 1951 Convention, when the circumstances of the case did not justify the use of that procedure. The decisions were contrary to the provisions of the European Convention on Human Rights and the United Nations Convention against Torture.

For the Secretary of State it was argued that all material facts had been taken into account and particular attention had been paid to that evidence which Popplewell J had not been satisfied had been fully considered. The Secretary of State's decision was not Wednesbury unreasonable.

Held

1. The Secretary of State following Bugdaycay had given adequate reasons why he had concluded that the applicant was not entitled to political asylum.

2. Following Hosenball and NSH the Secretary of State had adequately particularised the grounds on which he had concluded the applicant constituted a danger to national security.

3. In the light of Hosenball the Secretary of State had given adequate reasons for proceeding by way of the Independent Advisory Panel and for not affording the applicant the protection of article 32(2) of the 1951 Convention.

4. The Secretary of State had been obliged, in considering the question of deportation, to balance the threat posed to national security by the applicant against the applicant's interests as identified in the Convention. Following Brind, albeit the European Convention on Human Rights and the Convention against Torture were not part of English law, the Secretary of State would be expected to take any relevant provisions in those documents into account.

5. However on the evidence, the Secretary of State had given consideration to all relevant material: his conclusions could not be successfully attacked on Wednesbury principles.

Cases referred to in the Judgment:

R v Secretary of State for Home Affairs ex parte Hosenball [1977] 1 WLR 766: [1977] 3 All ER 452.

R v Home Secretary ex parte Bugdaycay [1987] 1 AC 514: [1987] Imm AR 250. R v Secretary of State for the Home Department ex parte Sivakumaran [1988] 1 AC 514: [1988] Imm AR 147.

NSH v Secretary of State for the Home Department [1988] Imm AR 389. R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696: [1991] 1 All ER 720.

R v Secretary of State for the Home Department ex parte Karamjit Chahal (No 1) (unreported, QBD, 2 December 1991). (This was the successful application before Popplewell J for judicial review of an earlier decision by the Secretary of State to refuse the applicant political asylum. There were other unsuccessful proceedings before Rose J seeking bail, on 23 July 1992, when the court accepted a submission that bail should not be granted where the Secretary of State had stated the applicant was a security risk.)

Counsel:

N Blake for the applicant; The Hon M Beloff QC and R Jay for the respondent

PANEL: Potts J

Judgment One:

POTTS J: On 16 July 1992 Rose J granted the applicant leave to apply for judicial review of three decisions of the Secretary of State:

(1) the decision to continue to reject the applicant's claim to be recognised as a refugee dated 1 June 1992;

(2) the decision of the Secretary of State to maintain his decision to deport the applicant; and,

(3) the decision of the Secretary of State to continue to hold the applicant in custody.

The applicant now seeks an order of certiorari quashing the Secretary of State's decision to maintain his refusal of asylum and his decision to continue with deportation proceedings against the applicant. In the event of such relief being granted, the applicant asks the court to issue a writ of habeas corpus ad subjiciendum on the grounds that the applicant's further detention is unlawful.

The applicant is an Indian citizen and Commonwealth national. He first entered the United Kingdom in 1971 unlawfully without seeking leave to enter from an immigration officer. He is subject to immigration control under the Immigration Act 1971 ("the Act") and the immigration rules made thereunder ("the rules"). In 1974 he applied to the Immigration and Nationality Department of the Home Office to regularise his stay, and on 10 December 1974 was granted indefinite leave to remain under the terms of an amnesty for illegal entrants who arrived before 1 January 1973. The applicant's wife has been settled in the United Kingdom since September 1975. Their two British children have been resident here since their birth in 1977 and 1978 respectively. From 1 January 1984 to 27 May 1984 the applicant was in India and whilst there met prominent Sikh religious and political leaders. He is an adherent of the International Sikh Youth Federation which seeks independence for the Punjab. On 11 May 1987 at Snaresbrook Crown Court the applicant was convicted of an offence of affray and an offence of unlawful wounding. These charges arose out of a disturbance at the East Ham Gurdwara. The applicant was sentenced to nine months' imprisonment in total. He was released on 9 October 1987. These convictions were quashed on appeal on 27 July 1992. On 16 December 1987 the applicant applied for registration as a British citizen. This was refused on 4 April 1989.

On 14 August 1990 the Secretary of State decided that the applicant should be deported from the United Kingdom because his continued presence here would not be conducive to the public good for reasons of national security and other reasons of a political nature, namely the international fight against terrorism, and issued a notice to this effect. On 16 August 1990 after service of the notice the applicant was detained. He has remained in detention ever since.

The applicant applied for asylum in the United Kingdom on the ground of well-founded fear of persecution in India. On 10 December 1990 he was interviewed at Bedford Prison by the Immigration and Nationality Department in connection with his claim. Detailed representations were made by his solicitors to the Secretary of State on his behalf, in particular on 27 October 1990, 19 November 1990 and 9 January 1991. Amnesty International also wrote to the Secretary of State on the applicant's behalf in November 1990. In January 1991 the Immigration and Nationality Department informed the applicant that the Secretary of State was minded to refuse his application because he was not satisfied that the applicant had a well-founded fear of persecution if he returned to India. The applicant, however, was invited to make further representations before a final decision was made. Further representations were made. On 27 March 1991 the applicant's claim for asylum was refused.

The notice of the decision to deport notified the applicant that he could if he wished make representations to an Independent Advisory Panel. The applicant made such representations. He appeared before the panel on 10 July 1991. The applicant's legal advisers requested that they be allowed to represent the applicant or be in attendance at the hearing. The chairman ruled that the panel had no discretion to allow legal representation.

Following the hearing, the Advisory Panel reported to the Secretary of State. On 25 July 1991 the Secretary of State signed a deportation order against the applicant.

The applicant subsequently applied and obtained leave for judicial review of:

(1) the decision to make a deportation order;

(2) the refusal of his claim for asylum and,

(3) the deportation order.

On 2 December 1991 on the hearing of the applicant's application for judicial review, Popplewell J quashed the decision to refuse asylum. At the hearing the Secretary of State conceded that if the court held that the decision to refuse asylum was flawed, he would reconsider his decision irrespective of the merits of the case for deportation on the grounds of national security. Thus Popplewell J declined to rule on the issue whether, even if refugee status was established, the Secretary of State would be entitled to deport the applicant on national security grounds.

After further representations on behalf of the applicant (see in particular the letter of 4 December 1991), the Secretary of State adhered to his previous decision to refuse asylum (letter of 1 June 1992). The applicant's solicitors addressed this refusal (letter of 18 June 1992). The Secretary of State, however, adhered to his decision (letter of 2 July 1992). The Secretary of State has continued to maintain his decision. See the affidavit of Nicholas Sanderson (15 September 1992), the affidavit of Peter Wrench (14 January 1993) and a letter from the Treasury Solicitor (9 October 1992).

Two essential issues are raised by the present application. They concern the Secretary of State's decisions:

(i) to continue to maintain the refusal of asylum on the ground that the applicant is not a refugee and,

(ii) to continue the deportation proceedings.

This is a fresh application. It is discrete from that heard by Popplewell J. The original Form 86A has been superseded by that of 10 July 1992 and I have heard full argument on all relevant aspects by counsel on each side. Nevertheless, the questions raised by the first issue are identical, and I respectively adopt Popplewell J's approach, reasons and conclusion. After reviewing the evidence and submissions, he said:

"However, what troubles me in the instant case is this. It is perfectly clear from the report of Amnesty International that a great number of Sikhs have been persecuted. The Secretary of State has considered Amnesty International's report together with other material. What he does not do is to explain whether or not he accepts the report of Amnesty International. Does he in fact accept that the incidents have occurred but concludes that they have no relevance to the applicant?

The Secretary of State has made some observations on the credibility of the applicant and of some of his evidence. He does not make any observations at all on his own attitude towards Amnesty International's report. He may have a number of different approaches. He may take the view that he simply does not accept Amnesty International's report. He may take the view that it is exaggerated. He may take the view that whilst he does not disagree with the contents of it, it is irrelevant to this applicant's position. If so he gives no reason why he considers it irrelevant. He is not obliged to reveal what advice he receives from the Foreign and Commonwealth Office, but simply to say that he has had advice takes the matter no further. One may ask rhetorically: is the advice of the Foreign and Commonwealth Office to reject or accept Amnesty International's report? Is it to support the view that in the applicant's case there is no risk, or what?

I have in mind what Lord Bridge said in Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 and, in particular, the burden of proof on an applicant to show that he has been substantially prejudiced by the deficiency in the reasoning. I am equally aware that whether an applicant is entitled to a refugee status is not an issue for this court but is for the Secretary of State. Nevertheless, I confess to enormous anxiety in this case. I have considered with great care the submissions made on behalf of the Secretary of State. In the result, I conclude, for the reasons I have given that the reasoning of the Secretary of State is inadequate."

Following this judgment the Secretary of State was in receipt of a substantial body of material. He reviewed his predecessor's decision of August 1990 and reconsidered all aspects of the case. It is necessary to refer to his decision letter of 1 June 1992 in some detail:

"This letter addresses specifically that matter about which Mr Justice Popplewell expressed anxiety and which formed the basis of his quashing the Secretary of State's original decision, namely the Secretary of State's failure to explain how he viewed the matters raised in the Amnesty International report of May 1991 about events in the Punjab. In reconsidering the application the Secretary of State has also taken into account your recent correspondence, particularly your letters of 4 and 11 December 1991 and 26 March 1992; the reports of Amnesty International dated February and March 1992; and other information received from Amnesty International; and the other material referred to in Mr David Burgess' affidavit sworn 21 May and exhibited thereto. In addition, the Secretary of State substantially adopts the points made on his behalf in the affidavits of 4 and 22 November 1991 sworn by Mr Sanderson in the proceedings last year."

The Secretary of State then goes on to review the Amnesty International reports and the situation in India and the Punjab as revealed in those reports and other material. At page 36 he:

". . . notes that the emergency powers in force in the Punjab including the Terrorist and Disruptive Activities Act 1987 (TADA) are lawful powers, properly enacted by the Indian Parliament, which have been instituted in response to the very serious threat to the life and safety of the community posed by the activities of Sikh terrorists in the Punjab. He notes that the judiciary in India is independent of the Government and that there is an effective system of appeals in criminal matters ranging from District Courts to the Supreme Court."

The Secretary of State then refers to violations of human rights committed by members of the security forces in the Punjab and states:

"But he considers that these actions arise from failures of discipline and supervision and not from any concerted policy on the part of the Indian authorities. Moreover, he considers that the breakdown of law and order of which these violations are a part results directly from the activities of Sikh terrorists and in particular their strategy of intimidation and provocation of members of the security forces. He does not accept that they are evidence of persecution within the terms of the UN Refugee Convention against Sikhs generally in the Punjab, nor against supporters of an independent Sikh homeland nor against alleged Sikh terrorists . . . [he] notes that these violations have not been condoned by the Indian or State Governments . . .".

Consideration is given to what might happen to the applicant on his return to India. The letter identifies the grounds on which the Secretary of State relies in concluding that the applicant has been actively involved in terrorism in the United Kingdom and India and goes on:

"He [The Secretary of State] accepts that, in view in particular of Mr Chahal's admitted involvement in an extremist faction of the ISYF, Mr Chahal might be arrested and charged with terrorist offences on his return to India, under the TADA or other provisions of Indian criminal law. Were he to be charged, the Secretary of State believes that Mr Chahal would be subject to prosecution for alleged criminal activities not for his political beliefs or expressions. If Mr Chahal were so charged, the Secretary of State is satisfied that he would receive full protection by the Indian Government from mistreatment while held in custody.

The Secretary of State has also considered what might happen to Mr Chahal if he were not arrested by the Indian authorities, but remained at liberty in India. The Secretary of State accepts that Mr Chahal or any other person visiting or living in the Punjab faces some risk of violence both from being caught up in a terrorist outrage or from the activities of members of the security forces acting outside the law, but for reasons earlier explained does not regard this as persecution within the meaning of the 1951 UN Convention on the Status of Refugees. In addressing the risk of returning Mr Chahal to India, however, the Secretary of State has had regard to the risks which might be faced by Mr Chahal in India as a whole, particularly major urban centres such as Delhi and Bombay. The Secretary of State notes that Sikhs live safely in most parts of India outside the Punjab. Mr Chahal would be returned to any international airport of his choice within India and would have no obligation to go to the Punjab if he did not wish to do so. The Secretary of State notes that Mr Chahal left the Punjab twenty years ago and, subject to any further representations which he might wish to make on this matter, the Secretary of State does not consider it unreasonable that Mr Chahal should continue to remain outside the Punjab if he fears to return there, should he be returned to India."

The applicant's solicitors responded to the last point (letter of 18 June 1992) in these terms:

". . . Mr Chahal does not regard a location in India outside the Punjab as an area in which he does not face a real risk of persecution for a Refugee Convention reason. Furthermore he does not regard any point of re-entry to India as safe for him. Lastly he reserves the right to request a particular point of re-entry to India if compelled to return at some point in the future."

The Secretary of State acknowledged these comments of the applicant's solicitors by letter dated 2 July 1992:

"With reference to the penultimate paragraph of your letter, as stated in my letter of 1 June Mr Chahal would be deported to any international airport of his choice in India."

The applicant's solicitors' letter of 18 June contained detailed representations concerning the applicant's fears of return to a part of India outside the Punjab. The Secretary of State addressed these fears in his letter of 2 July 1992:

". . . the Secretary of State believes that were Mr Chahal to be arrested and charged by the Indian authorities it would be in respect of alleged criminal activities and not for his political beliefs or expressions. He does not therefore, consider that, wherever he were arrested in India, the possibility of Mr Chahal's arrest in itself gives rise to issues under the 1951 Refugees Convention."

And later in the same letter:

". . . the Secretary of State has subsequently sought and received assurances from the Indian Government, a copy of which is attached and which further satisfy him as to this matter. The Secretary of State therefore remains of the view that Mr Chahal would be safe from ill-treatment if taken into custody by the Indian authorities wherever he might be held in custody."

The assurances mentioned are contained in a letter dated 29 June 1992 from the Indian High Commission to the Under-Secretary of State at the Foreign Office:

". . . if Mr Chahal were to be deported to India, he would enjoy the same legal protection as any other Indian citizen, and . . . he would have no reason to expect to suffer ill-treatment of any kind at the hands of the Indian authorities."

Subsequent to this correspondence further material (in particular from Amnesty) was made available to the Secretary of State. His response to it can be seen by reference to a letter written by the Treasury Solicitor to the applicant's solicitors and dated 9 October 1992:

"Furthermore, the objectivity of Amnesty's sources of information is a matter of some uncertainty. Amnesty International have not been able to conduct independent investigations directly in India and the Punjab, and have therefore been obliged to rely on second and third-hand reports. The quality and reliability of these sources has been a matter of some concern to Amnesty themselves. In any event, this general background is relevant only insofar as it describes a broad background against which your client's individual claim to asylum has to be considered. I remind you that the burden of proof in these proceedings is on your client. It is for him to show to the required standard of proof that he has a well-founded fear of persecution for a Convention reason. This burden relates to his individual circumstances and the likelihood of him suffering persecution as an individual on his return to India. My client does not therefore seek substantially to dispute the material provided in the Amnesty International and other reports insofar as they relate in a limited way to the general background of the situation in the Punjab. The Secretary of State would not accept that the material used in the compilation of these reports is necessarily objective or independent. Moreover my client's substantial acceptance of the material you have produced does not necessarily mean that he draws the same inferences from the evidence that you have. The inferences which the Secretary of State has thought fit to draw, in evaluating the nature and level of any risk which your client might face were he to return to India are fully explained in the final refusal letter dated 1 June 1992."

Mr Dunston of Amnesty disputed the Treasury Solicitor's assertion as to the objectivity of Amnesty International's sources and went on:-

"It cannot be denied that direct access to India for research purposes would facilitate the collection of further information and verification . . . however we are accustomed to working without such access and are confident that the information we have obtained so far fully justifies the findings and conclusions set out in our reports."

The letter concludes:

"The [Indian] government's response also reinforces our concern about the lack of determination to bring the perpetrators of Human Rights violations to justice; out of 77 cases in which the government found our reports to have been substantiated, no more than six were found to have resulted so far in convictions of the police officers responsible."

Mr Wrench of the Home Office dealt with this and other material in an affidavit sworn on 15 January 1993:

". . . despite Mr Dunston's comments, the Secretary of State considers that a significant number of the individual cases and incidents reported by Amnesty International are incapable of verification. The objectivity of many of the original sources must also be regarded as uncertain as Amnesty International have themselves expressed regret at their inability to visit the Punjab to conduct investigations at first hand. The Secretary of State has not therefore sought substantially to dispute the material made available by Amnesty International but recognises the limitations imposed on it as authoritative evidence the substantiation of which is beyond Amnesty International's control. The Secretary of State also considers that the reports present a narrow picture of the situation in the Punjab because of their tendency to give insufficient weight and attention to the activities and Human Rights abuses of Sikh terrorists, and because of their concentration on alleged abuses, to the millions of Indian citizens living normally in the Punjab and elsewhere."

The Secretary of State had available material which was before Popplewell J and not expressly considered by him. Its relevance and significance has been the subject of argument before me. It is contained in a statement made by Khurnail Singh Khaira dated 6 December 1990. Mr Khaira was born in India but has lived in the United Kingdom from 1963. In 1989 he went to India to visit relatives. Whilst there he was arrested and tortured. In his statement he describes what happened to him at 32 Battalion of the Central Reserve Police in Jullunder:

"I was being questioned by about four or five people at once. They were verbally abusing me as well as beating me with fists and sticks. I was stripped and my hands were tied behind my back and I was hung from the ceiling and beaten again. I was only returned to my cell when I was close to losing consciousness. They did want to know about me but they were mostly interested in Mr Chahal. After the third day I was left for a couple of days to recover. I was then blindfolded and taken out of the cell and put into a van. There were about five or six police officers in the van with me. I was taken in the van on a journey of approximately eight hours."

Mr Khaira describes being taken to New Delhi where he was further detained and beaten:

". . . they wanted to know about Mr Chahal and they kept saying that the Indian government wanted him and that he was a terrorist."

Mr Blake submits that Mr Khaira's statement is of particular importance since it shows that the Indian authorities had a particular interest in the applicant. What happened to Mr Khaira is indicative of what would happen to the applicant were he returned to India. Mr Khaira's statement also referred to the killing of two men at the time that he was in custody. Of the statement the Secretary of State said (letter of January 1991):

"Mr Khaira's affidavit, which post-dates your asylum claim, appears to make similar statements which are at variance with other accounts and the Secretary of State is unwilling to afford it much weight as evidence."

"Similar statements" is a reference to assertions made by Mr Khaira concerning the death of the two men. As to this, Mr Khaira's statement makes it clear that he did not claim to be a witness of the death of the two men. Rather he says:

"I discovered whilst I was being tortured that Narimal Singh and Kamaljit Singh had both been shot dead. The police were speaking to each other in English and did not realise that I could understand them."

Thus I accept the force of Mr Blake's submission that the Secretary of State appears to have misdirected himself as to the weight to be attached to the statement of Mr Khaira.

I now go on to consider Mr Blake's submission that the Secretary of State's decision to maintain the refusal of asylum should be quashed. As I understand it, Mr Blake does not suggest that the Secretary of State misdirected himself as to the law. He contends that the court should hold that it was not open to the Secretary of State to take the decision in question; that on all the evidence identified in the reasoning process, no reasonable minister properly directing himself could decide as the Secretary of State did.

The applicant's position as an asylum seeker is governed by article 1(A)(2) of the 1951 Refugee Convention (as amended). This defines a refugee as being a person who:

". . . owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside his country of nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country."

The test is an objective one and was laid down in R v Secretary of State for the Home Department ex parte Sivakumaran [1988] 1 AC 958. At page 993DE Lord Keith said:

"Fear of persecution, in the sense of the Convention, is not to be assimilated to a fear of instant personal danger arising out of an immediately presented predicament. The claimant to refugee status is not immediately threatened with danger arising out of a situation then confronting him. The question is what might happen if he were to return to the country of his nationality. He fears that he might be persecuted there. Whether that might happen can only be determined by examining the actual state of affairs in that country. If that examination shows that persecution might indeed take place then the fear is well-founded. Otherwise it is not."

Mr Blake has submitted that, despite the judgment of Popplewell J, no reasons have been provided to this court as to why the Amnesty International material does not support the applicant's claim to the existence of a real risk of ill-treatment in India for him. Due weight, moreover, has not been given to the statement of Mr Khaira. Mr Beloff first submits that the Secretary of State has correctly directed himself as to the law. Mr Blake has not suggested otherwise. Thus the position remains as it was before Popplewell J:

"The Secretary of State has clearly treated this applicant as an individual and has applied his mind to the principal question: will this applicant, if he returns to India as a deported terrorist and comes to the attention of the Indian authorities, be treated in accordance with law or has he demonstrated a reasonable degree of likelihood that he will be persecuted for a non-convention reason?"

Mr Beloff next submits that all material considerations have been drawn to the Secretary of State's attention by the applicant's legal advisers as well as by his own. The Secretary of State has considered all this material, as the decision letter, the affidavit of Mr Sanderson of 15 September 1992 and the affidavit of Mr Wrench of 14 January 1993 show. Thus, submits Mr Beloff, the only issue is whether the Secretary of State's assessment, a matter of prediction, is perverse or absurd. Popplewell J's criticism was of the Secretary of State's failure to explain how he viewed the Amnesty International material. This criticism went to exposition, not to the conclusion reached.

Mr Beloff submits that the Secretary of State has now explained how he viewed the Amnesty International material. He has done this in the decision letter, the letter of 2 July 1992, the letter of the Treasury Solicitor of 19 October 1992, the affidavit of Mr Sanderson dated 15 September 1992 and the affidavit of Mr Wrench dated 14 January 1993.

I have referred in detail to this body of material because of its crucial importance to this application. Like Popplewell J, I must confess to having had great anxiety in this case. I have not found the decision that I have to make on the question of refugee status an easy one. Nevertheless, having approached the question in the manner enjoined by Lord Bridge in R v Home Secretary ex parte Bugdaycay [1987] 1 AC 514 at 53 1EG, I have reached the conclusion that the Secretary of State has now given adequate reasons for concluding that the applicant has not satisfied him of his entitlement to asylum as a refugee. The Secretary of State has considered the applicant as an individual, he has had regard to all the available evidence including that from Amnesty and Mr Khaira, and he has judged that this applicant has not satisfied him (the Secretary of State) that he (the applicant) has a well-founded fear of persecution in India within the terms of the Convention. This is a judgment that the Secretary of State was entitled to make on the available material. I am unable to hold that it is inadequate or irrational in the sense maintained by Mr Blake. Were I to impugn it I would be substituting my judgment on the facts and the merits for that of the Minister. This course is not open to me.

I now turn to consider the question of deportation. Mr Blake has not sought to challenge the Secretary of State's jurisdiction to deport the applicant. He submits that there are three principal grounds why the court should quash the decision to deport. These are:

(1) That the information given to justify the deportation appears to amount to allegations threatening the national security of India, but amounts to no more than an unproven allegation of conspiracy to commit violence in the United Kingdom;

(2) That the applicant is entitled to the procedural protection of article 32(2) of the Convention relating to refugees. There are no compelling reasons of national security why the applicant should not have been permitted to appeal against a decision to expel him on national security grounds; and

(3) That although a well-grounded fear of persecution may not be conclusive against expulsion, exposure to a real risk of torture would be. Mr Blake relies on article 3 of the European Convention on Human Rights and article 3 of the United Nations Convention against Torture (Convention against torture and other cruel, inhuman or degrading treatment or punishment: adopted by the General Assembly of the United Nations on 10 December 1984. It is available with a commentary from Centre for Human Rights, United Nations Office at Geneva, 8-14 avenue de 1a Paix, 1211 Geneva 10, Switzerland. By March 1993 72 states were parties to the Convention, including the United Kingdom but not India) and submits that because of the absolute nature of the prohibition contained in these articles, at the very least the Secretary of State was and is under a duty to rationally and specifically address the risk of torture when considering whether or not to deport the applicant.

In order to assess these submissions it is necessary to refer to the relevant statutory or regulatory framework.

Section 3(5)(b) of the Immigration Act 1971 provides that the Secretary of State has the power to make a deportation order in respect of a person who is not a British citizen, including those who have indefinite leave to remain, on the ground that their deportation is conducive to the public good. By section 15 of the Act there is a right of appeal against a decision to deport, but section 15(3) provides that:

"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 . . ."

The immigration rules (HC 251) provide:

"161 Refugees

Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the status of refugees. Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments."

Paragraph 162:

"Consideration of the merits

In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects."

Paragraphs 167 -- deportation on conducive grounds -- and 173 -- asylum -- are also material.

Reference must be made to article 3 of the European Convention on Human Rights. This provides that:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

And the United Nations Convention against Torture etc provides by Article 3(1) that:

"No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."

Neither of these Conventions forms part of the English domestic law. Articles 32 and 33 of the Convention relating to refugees are, on the other hand, incorporated into English law by virtue of paragraphs 161 and 173 of the immigration rules (supra). Article 32 provides:

"Expulsion

(1) The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.

(2) The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.

(3) The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country . . ."

Article 33:

"Prohibition of expulsion or return (refoulement)

(1) No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

(2) The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime constitutes a danger to the community of that country."

As to ground (1) for quashing the deportation order, Mr Blake argues that article 33(2) (contra) distinguishes:

(i) "Serious danger to the community of that country", which requires a conviction by final judgment of a particularly serious crime, and

(ii) "Reasonable grounds for regarding [a refugee] as a danger to the security of the country."

He submits that the extent to which the applicant is alleged to be a threat to the national security of the United Kingdom is the unproven allegation of participation in terrorist acts against persons resident here. This, it is submitted, is a species of allegation of serious crime (conspiracy) rather than espionage, acts on behalf of a foreign power, or endangering the security forces of this country. It has not been alleged, it is said, that the applicant has been party to terrorist violence against the British state. There is a distinction between danger to national security and danger to the community under the article, which is not made in this case.

On 5 April 1991 the Home Office produced a statement relating to the applicant for the purposes of the hearing before the Advisory Panel. It states:

". . . 3. Chahal has a public history of violent involvement in Sikh terrorism. In 1986 he was involved in disturbances at the East Ham Gurdwara and was convicted of assault and causing an affray: he received concurrent prison sentences of 6 and 9 months. While on remand for these offences, he was involved in further disturbances at the Belvedere Gurdwara; he was later acquitted of charges in this connection. These disturbances were related to the aim of gaining control of the Gurdwaras' funds in order to finance support and assistance for terrorist actions in the Punjab.

4. The Home Office is in possession of other information of a confidential nature concerning Chahal. This relates to his activities in the faction of ISYF in which he has played a leading role; and shows him to have been centrally involved in the organisation, planning and financing of terrorism.

5. Having regard to the above facts and to the other information of a confidential nature, the Home Secretary concluded that Chahal's continued presence in the United Kingdom was not conducive to the public good for reasons of national security and other reasons of a political nature, namely the fight against international terrorism."

On 27 July 1992 the applicant's convictions of affray and unlawful wounding (mentioned in the above passage) were quashed by the Court of Appeal (Criminal Division). Mr Wrench dealt with this in his affidavit of 14 January 1993:

"Quashing of Criminal Conviction

3. The Applicant's 1986 conviction for assault and causing affray was only considered by the Secretary of State in terms of its relevance to the Applicant's credibility, in view of his assertion that he opposed violence. The matter was not regarded as evidence of his involvement in terrorism and did not bear on any assessment of the risk to national security posed by the Applicant. Following the quashing of the conviction by the Court of Appeal on 27 July 1992, the Secretary of State personally reviewed the decisions to deport the Applicant for reasons of national security and to refuse his application for asylum. He also took account of further representations made by the Applicant's solicitors in the light of the Court of Appeal's judgment. He concluded that the decisions should still stand. The Applicant's conviction was only a subsidiary factor concerning his personal circumstances and background in the original decision to deport him and the Secretary of State is satisfied that the Applicant continues to represent a substantial risk to the national security of the United Kingdom."

Whilst I find it difficult to reconcile the assertion that: "the matter was not regarded as evidence of his involvement in terrorism" with the contents of paragraph 3 of the statement of 5 April 1991, the fact that the Secretary of State personally reviewed the decisions to deport the applicant following the quashing of the conviction and remained satisfied that the applicant continued to represent a substantial risk to the national security of the United Kingdom is, in my opinion, both significant and important.

On 23 May 1991 the Home Office produced a supplementary statement. It states, among other things:

"Direction and Control of International Sikh Terrorist Activities

(3) Chahal has been involved in planning and directing terrorist attacks in India, the UK and elsewhere. Of particular importance has been Chahal's role in attempting to direct terrorist activities within the Indian subcontinent. Chahal has also been involved in planning parallel activity within the United Kingdom."

It is necessary to refer again to the decision letter of 1 June 1992. At page 37 it was stated that:

". . . the Secretary of State is satisfied as was made clear in the information given to Mr Chahal for his appearance before the Secretary of State's Advisory Panel -- that Mr Chahal has been actively involved in terrorism in the United Kingdom and India. He has been the central figure in the International Sikh Youth Federation's (Southern faction) support for terrorism and has played a leading role in this faction's programme of intimidation directed against other groups within the United Kingdom Sikh community. He has also been involved in supplying funds and equipment to terrorists in the Punjab since 1985. The Secretary of State is also satisfied that there is good reason to believe that the equipment supplied by Mr Chahal has been for use in actual terrorist operations. Mr Chahal has also been involved in planning and directing terrorist attacks in India and the United Kingdom."

And at page 38:

"He [the Secretary of State] notes in addition, that in view of the substantial risk which Mr Chahal poses to the national security of the United Kingdom, he would not benefit from the protection of articles 32(1) and 33 of the UN Convention even if he were to satisfy the Secretary of State as to his claim to refugee status."

In his affidavit of 15 September 1992 Mr Sanderson of the Home Office, after referring to the decision letter of 1 June 1992 and the Secretary of State's letter of 2 July 1992, said:

"In any event whatever the position in relation to the 1951 Convention, the then Secretary of State considered that there were compelling reasons of national security which warranted (a) the signing of the deportation notice and (b) the application of the Advisors procedure to Mr Chahal's case, although he was prepared to reconsider the asylum claim irrespective of that view. Such reconsideration has taken place with the result to which I have already referred. The present Secretary of State likewise considers that there are compelling reasons of national security which require implementation of the Deportation Order, whatever the position may be in relation to the 1951 Convention."

In the following paragraph Mr Sanderson identifies the evidence which is available to the Home Office Asylum Division and which formed the basis of the decision in this case. It is unnecessary to quote this paragraph in full. I emphasise, however, that I have had its contents in mind when considering the issue of asylum, the present issue, and those other issues which Mr Blake contends are separate and which are dealt with later in this judgment.

In "NSH" v Secretary of State for the Home Department [1988] Imm AR 389, Dillon LJ said (at 395):

"Where considerations of national security are said by the Home Secretary to arise, the courts cannot expect, and do not expect, that details of evidence of matters concerning national security will be put before the courts in civil proceedings. The reasons why that is so have been cogently explained by Geoffrey Lane LJ in a passage in his judgment in R v Home Secretary ex parte Hosenball [1977] 1 WLR 766 from 783H to 784H, in which I would respectively concur."

The passage in Geoffrey Lane LJ's judgment is particularly relevant to the problems posed by the present case and I cite it in full:

"In ordinary circumstances common fairness -- you can call it natural justice if you wish -- would demand that he be given particulars of the charges made against him; that he be given the names of the witnesses who are prepared to testify against him and, indeed, probably the nature of the evidence which those witnesses are prepared to give should also be delivered to him. But there are counter-balancing factors.

Detection, whether in the realms of ordinary crime or in the realms of national security, is seldom carried out by cold analysis or brilliant deduction. Much more frequently it is done by means of information received. Courts of criminal jurisdiction have for very many years indeed, if not for centuries, given protection from disclosure to sources of information . . .

The reasons for this protection are plain. Once a source of information is disclosed, it will cease thereafter to be a source of information. Once a potential informant thinks that his identity is going to be disclosed if he provides information, he will cease to be an informant. The life of a known informant may be made, to say the least, very unpleasant by those who, for reasons of their own, wish to remain in obscurity. Thus, take away the protection, and you remove the means of detection; and, when the security of the country is involved, there may be added difficulties. It may well be that if an alien is told with particularity what it is said he has done it will become quite obvious to him from whence that information has been received. The only person who can judge whether such a result is likely is the person who has in his possession all the information available. That, in this case, is the Secretary of State himself. If he comes to the conclusion that for reasons such as those which I have just endeavoured to outline he cannot afford to give the alien more than the general charge against him, there one has the dilemma. The alien certainly has inadequate information upon which to prepare or direct his defence to the various charges which are made against him, and the only way that could be remedied would be to disclose information to him which might probably have an adverse effect on the national security. The choice is regrettably clear: the alien must suffer, if suffering there be, and this is so on whichever basis of argument one chooses."

I respectfully adopt and apply the principles enunciated in the above passages to the circumstances of the present case. The Secretary of State is not required to place all details of evidence of matters concerning national security before this court or this applicant. It is enough if he sufficiently identifies the grounds on which he has, in the context of article 33(2) regarded the applicant as a danger to the security of the country. I am satisfied that in the passages cited above the Secretary of State has performed this task and adequately particularised the grounds on which he relies in concluding that the applicant constitutes a danger to the security of this country. In my opinion there is no question of the Secretary of State having failed to distinguish between the danger posed by the applicant to national security and the danger posed by him to the community. The passages cited speak for themselves. This submission of Mr Blake therefore fails.

The affidavit of Mr Sanderson dated 4 November 1991 is relevant to a consideration of Mr Blake's second ground. Mr Sanderson states:

"6. As I have already explained, the Secretary of State is of the view that the applicant is not a refugee and that accordingly the 1951 Convention is not applicable to his case. In any event, in this case, as in other cases, the Secretary of State considered that there were compelling reasons of national security why it was appropriate to use the Advisors procedure. In particular, the Secretary of State considered that any public examination of the issues raised in this case carried with it the risk of disclosure of sources of information with the result that not only such sources might be compromised but that the lives of the individuals involved might also be threatened.

7. Following the hearing the Advisory Panel reported to the Secretary of State and on the 25 July 1991 the Secretary of State signed a Deportation Order against the applicant."

Given the principle in Hosenball cited above, this expression of the Secretary of State's reasons for rejecting the procedural protection of article 32(2) is sufficient, in my opinion, to dispose of Mr Blake's submissions on this ground. It is not disputed that the decision to deport is in accordance with "due process of law", that is to say domestic law. The Secretary of State has identified "compelling reasons of national security" for preferring the Advisory procedure to that otherwise prescribed by article 32(2). I am unable to say that the Secretary of State erred in taking the course he did. He was in my judgment fully entitled to take this course and I reject the arguments advanced by Mr Blake in this respect.

I now turn to the third ground on which Mr Blake relies in submitting that the order to deport should be quashed. Mr Beloff has submitted that, although in any event the Secretary of State engaged in such an exercise, once national security is relied on to deport a refugee, no question of balancing his interests qua refugee against the interests of national security arises. In support of this submission Mr Beloff relies on a passage in the judgment of Neill LJ (with which Stocker LJ agreed) in the "NSH" case (supra) at pages 398/399:

"It was submitted finally that the decisions of the Secretary of State could be challenged because in reaching his conclusion he had not taken into account a material consideration, namely, the fact that the appellant had the status of a refugee. Here too I feel bound to reject the submission. It may be that in many cases, particularly where a case is near the borderline, the Secretary of State will weigh in the balance all the compassionate circumstances, including the fact that the person is a refugee, before reaching a final conclusion. But where national security is concerned I do not see that there is any legal requirement to take this course. Indeed article 33.2 of the Convention provides that a refugee cannot claim the benefit of article 33.1 where there are reasonable grounds for regarding him 'as a danger to the security of the country in which he is'."

It is to be observed that Dillon LJ did not give specific consideration to this question his judgment. It is to be noted, moreover, that NSH was a case to do with admission. The court was not concerned with expulsion or return and allegations of consequent torture. The precise questions raised by the present application did not arise in that case. In my opinion, therefore, (and in the light of the passage in Brind (cited later)) Neill LJ's judgment does not bear the interpretation that Mr Beloff has sought to derive from it for the purposes of the present case.

In R v The Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696 Lord Bridge said at pages 748F to 749B:

"But I do not accept . . . that the courts are powerless to prevent the exercise by the executive of administrative discretions, even when conferred, as in the instant case, in terms which are on their face unlimited, in a way which infringes fundamental human rights. Most of the rights spelled out in terms in the Convention, including the right of freedom of expression, are less than absolute and must in some cases yield to the claims of competing public interests. Thus, article 10(2) of the Convention spells out and categorises the competing public interests by reference to which the right to freedom of expression may have to be curtailed. In exercising the power of judicial review we have neither the advantages nor the disadvantages of any comparable code to which we may refer or by which we are bound. But again, this surely does not mean that in deciding whether the Secretary of State, in the exercise of his discretion, could reasonably impose the restriction he has imposed on the broadcasting organisations, we are not perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it. The primary judgment as to whether the particular competing public interest justifies the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make that primary judgment."

Whilst their lordships in Brind were not concerned with the consideration of the questions of national security raised by the present application, the above passage is, in my opinion, consistent with the approach hitherto taken by them generally and in cases involving issues of national security. I therefore respectfully adopt it. Paragraph 162 of the immigration rules, moreover, requires the Secretary of State to balance the public interest against any compassionate circumstances of the case when considering whether deportation is the right course on the merits. Paragraph 167 of the immigration rules requires careful consideration of the relevant circumstances by the Secretary of State when exercising his power to deport on conducive grounds including compassionate circumstances. These provisions are inconsistent with the submission made by Mr Beloff. From them and from the passage in Lord Bridge's opinion cited above I draw the conclusion that having identified grounds for regarding the applicant as a danger to the security of the country, the Secretary of State was and is required to balance his interests as identified in the Convention relating to refugees and the rules against those of national security.

Having regard to Brind, although the Convention against Torture and the European Convention on Human Rights are not part of the domestic law, I would expect the Secretary of State to take the relevant provisions into account had he not already considered the risk of the applicant's being exposed to torture as an aspect of persecution. The primary judgment as to whether the public interest, that is requirements of national security, justifies deportation when balanced against these interests of the applicant refugee falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. The

Secretary of State having made the primary judgment to deport, this court exercises a secondary judgment and asks whether a reasonable Secretary of State on the material before him could reasonably make that primary judgment. In so doing this court cannot judge the quality of, or the weight to be attached to, the evidence going to the risk to the national security posed by this applicant. The only person who can do that is the Secretary of State who has all available information, and this court must accept his assessment of the extent of the risk.

In the decision letter of 1 June 1992 the Secretary of State considered the applicant's claim to refugee status. He accepted that the applicant faced some risk of violence in the Punjab but having exhaustively analysed the material available concluded that the applicant had not established a claim for asylum under the terms of the Convention. He added, however, that in view of the substantial risk which Mr Chahal poses to the national security of the United Kingdom he would not benefit from the protection of articles 32(1) and 33 "even if he were to satisfy the Secretary of State as to his claim for refugee status". Also relevant to this issue is the affidavit of Mr Sanderson dated 15 September 1992 and the affidavit of Mr Wrench of 14 January 1993, the letter from the Indian High Commission of 29 June 1992 and the Secretary of State's letter of 2 July 1992. Specific reference should be made to the affidavit of Mr Sanderson sworn on 22 November 1991. At page 53 it is stated:

"By the time the final decision was reached and notwithstanding Mr Chahal's representations and evidence to the contrary which were carefully considered by the Secretary of State, the Secretary of State did remain of the view that Mr Chahal would not be subjected to torture or like ill-treatment by the Indian authorities were he to be returned to India."

Mr Blake's submission on this ground must be considered against the background of this material. As to torture, the Secretary of State sought and received assurances from the Indian High Commission, representing a friendly Commonwealth Government. He considered all the available material, including that from Amnesty International. He concluded that the applicant would be treated in accordance with the law if he came into the hands of the Indian authorities and that he would not be subjected to torture. In my judgment, the Secretary of State was entitled to reach this conclusion on the material available to him. It was a conclusion that he could reasonably reach. It was not irrational.

Accordingly, when weighing the applicant's interests against those of national security, the Secretary of State was entitled to leave the risk of torture on deportation out of the scales. In my judgment, however, he did not do this. I accept Mr Beloff's submission that torture is not in law or fact a discrete matter. Under the Convention relating to refugees it is implicitly an aspect of persecution. The Convention recognises the right of a state to expel on national security grounds a refugee when his life is threatened (article 33), a fortiori where the persecution threatens something less than life. It is difficult to envisage a threat of torture that is not also a threat to freedom. Thus I am satisfied on the whole of the available material that in reaching his decision to continue with the deportation proceedings, the Secretary of State implicitly evaluated the risk of torture against the risk to national security and decided that the latter outweighed the former. In my opinion the risk of torture was both rationally and specifically addressed by the Secretary of State. The Secretary of State has given adequate reasons for concluding as he did.

I stand back and ask myself whether on the whole of the available material a reasonable Secretary of State could reasonably make that primary judgment. I am satisfied that the Secretary of State took into account all legally relevant considerations personal to this applicant. He balanced them against the risk that the applicant posed and poses to national security. He concluded that that risk was substantial and did so having had full regard to the views of the Panel of Advisors following the hearing of June 1991. He concluded that the risk posed to national security was such as to deprive the applicant of the benefit of articles 32 and 33 of the UN Convention. In my judgment he was entitled so to conclude. The decision to deport cannot be impugned. The application is accordingly refused.

DISPOSITION:

Application refused

SOLICITORS:

Winstanley-Burgess, London, EC1; Treasury Solicitor