Law Report: Deportation order was not flawed: Regina v Secretary of State for the Home Department, Ex parte Chahal Court of Appeal (Lord Justice Neill, Lord Justice Staughton and Lord Justice Nolan), 22 October 1993

The Home Secretary, when considering whether the deportation of a person would be conducive to the public good for reasons of national security, is required to balance any risk to national security against all the relevant circumstances, including any threat to the person's life or freedom in the country to which he is to be deported.

The Court of Appeal dismissed an appeal by Karamjit Singh Chahal from Mr Justice Potts' dismissal of Mr Chahal's application for judicial review of the Home Secretary's decision to deport him.

Mr Chahal, an Indian national of the Sikh religion, takes a prominent part in Sikh affairs in the UK. The Home Secretary decided that Mr Chahal's deportation to India was conducive to the public good for reasons of national security within section 3(5)(b) of the Immigration Act 1971 and rejected Mr Chahal's claim for asylum as a refugee.

Mr Chahal applied for judicial review of the decisions on the ground, among others, that the deportation order should not be made against him because he had well-founded fear of being persecuted in India within rule 173 of the Immigration Rules (HC 251 of 1990). The Home Secretary argued that (1)a refugee might be expelled or returned even to a country where his life or freedom would be threatened and that no balancing exercise was necessary between the threat to life or freedom against the danger to the security of the country, and (2)in any event the Home Secretary did carry out a balancing exercise.

Nicholas Blake (Winstanley Burgess) for Mr Chahal; Michael Beloff QC and Robert Jay (Treasury Solicitor) for the Home Secretary.

LORD JUSTICE STAUGHTON said it was impossible to say the Home Secretary's decision that Mr Chahal's deportation would be conducive to the public good was irrational, perverse, or based on misdirection. As to whether a balancing exercise was required, international writers considered the doctrine of proportionality relevant. It seemed wrong that trivial danger to national security should allow expulsion or return where there was a threat to life.

Rule 167 and 162 of the immigrations required the Home Secretary, in deportation cases, to consider 'the relevant circumstances' and 'any compassionate circumstances of the case'. The combined effect of the Conventional and Protocol relating to the Status of Refugees (1951) and immigration rules incorporating the Convention showed that a balancing exercise was necessary.

It had not been shown that the Home Secretary failed to carry out the balancing exercise. The Home Secretary's decision that Mr Chahal would be safe from ill-treatment in India was not irrational or perverse or otherwise unlawful.

LORD JUSTICE NOLAN, agreeing, said that the proposition that, in deciding whether the deportation of an individual would be conducive to the public good, the Home Secretary should wholly ignore the fact that the individual had established a well founded fear of persecution in the country to which he was to be sent seemed surprising and unacceptable. The Immigration Rules made clear that, when considering whether to deport a person on the ground that it would be conducive to the public good, the Home Secretary would consider each case carefully in the light of the relevant circumstances known to him. That obligation could not be displaced by the provisions of the 1951 Convention relating to decisions taken on grounds of national security.

LORD JUSTICE NEILL said his decision in NSH v Secretary of State for the Home Department (1988) IAR 389, 399 that where national security was concerned there was no legal requirement to balance the public interest against compassionate circumstances went too far. Even in a national security case there was a balancing exercise to be carried out.