9-F_SIAC Guidance Note 5: Legal test for Non-Conducive to the Public Good: Deportation, Exclusion and Deprivation

1.    A foreign national can be deported from the UK where deportation is conducive to the public good. A foreign national who is outside the UK can be excluded from the UK where his presence is not conducive to the public good. A British national can be deprived of his British citizenship where deprivation is conducive to the public good (so long as he will not be rendered stateless).

2. There is no clear definition of non-conduciveness and these tests provide the Secretary of State with a wide discretion. National security and unacceptable behaviours are two grounds of non-conduciveness but the concept is wider. Whilst there may be merit in giving the concept the same interpretation across the various contexts in which it is used (albeit recognising that application may vary between contexts), work within Government has not yet established such a single interpretation and the courts appear to have drawn some distinctions. (i) National Security cases 3. If the Secretary of State wishes to rely on certain undesirable acts as having been undertaken by the individual, the civil standard of proof applies (on the balance of probabilities). Therefore SIAC must consider it more likely than not that the individual in question has undertaken certain undesirable acts or been involved in certain undesirable activities before it will make such a finding (SSHD v Rehman [2001] UKHL 47 para 55). 4. The courts have accepted that deportation may be conducive to the public good in the absence of any such proven act so long as, viewed objectively, it is clear the person poses a risk to national security. The question of whether deportation is conducive to the public good is a question of risk and judgment rather than of standard of proof. It will be necessary to take into account the degree of probability of prejudice to national security, the importance of the security interest at stake and the serious consequences of deportation for the individual. The Secretary of State is not required to wait until directly harmful activities have taken place (SSHD v Rehman [2001] UKHL 47 paras 22, 29 and 56). This standard is not too far from a standard of reasonable suspicion since the risk assessment must be reasonable. We would argue that Rehman permits deportation on the basis of the cumulative weight of general unproven material and in the absence of any specific act being proven on the balance of probabilities. SIAC has accepted such an approach: Y v SSHD 24 August 2006 para 123. 5. In contrast, SIAC appears to require that at least one act be proven on the balance of probabilities before deprivation of British nationality will be conducive to the public good: Al Jedda v SSHD 7 April 2009 para 9. We will want to challenge this approach.

6. Points to note: a. Whilst there must be a real possibility of an adverse effect on the UK, national security is not limited to direct threats to the UK or to action which is targeted at the UK itself. Action against a foreign state which may be capable indirectly of affecting the security of the UK or the safety and well-being of the UK and its citizens may mean that it would be in the interests of national security to deport a person. b. Whilst the definition of national security is a question of law the question of whether something is in the interests of national security is a matter of judgment and policy rather than of law. The sophistication of the means available, the speed of movement of the person/goods and the speed of modern communication are all factors which may be taken into account in determining whether a person’s deportation would be in the interests of national security (SSHD v Rehman [2001] UKHL 47 paras 16, 50) c. The courts recognise that the SSHD is ‘undoubtedly in the best position to judge what national security requires even if his decision is open to review’ Rehman v SSHD [2001] UKHL 47 at 26 d. Where a number of the acts in question relate to national security and other acts, whilst being undesirable, do not, it is advisable to rely on both to ensure the test for deportation is satisfied even if SIAC concludes that the national security case is not fully made out (demonstrated by AA v SSHD, SIAC determination 14 May 2007). It may be argued that attempting to deport someone on national security grounds having tried and failed to deport them on other grounds is an abuse of process (unless the evidence that they are a threat to national security comes to light only after the first attempt has failed).

(ii) Unacceptable Behaviour cases 7. The Secretary of State may exclude a foreign national where there is any credible evidence that they have been directly involved in unacceptable behaviour (UB). UB is: a. b. c. d. Writing, producing, publishing or distributing material; Public speaking including preaching; Running a website; or Using a position of responsibility such as teacher, community or youth leader

to express views which:     Foment, justify or glorify terrorist violence in furtherance of particular beliefs; Seek to provoke others to terrorist acts; Foment other serious criminal activity or seek to provoke others to serious criminal acts; or Foster hatred which might lead to inter-community violence in the UK.

This UKBA policy must be applied in accordance with human rights.

8. Counsel has advised that in principle there is no reason why such behaviour could not be relied upon to justify a decision that deportation is conducive to the public good but that the following should be taken into account: a. In a deportation case the individual is more likely to have article 8 rights so a UB will not necessarily be sufficient to render the interference proportionate; b. In a deportation case the passage of time since the conduct complained of may be of relevance, it being more difficult to demonstrate that deportation is conducive to the public good if the conduct took place some time ago and there is no risk of repetition; c. In a deportation case it may be more difficult to rely on conduct which took place before 13 April 2006 (when s1 of the Terrorism Act 2006 received Royal Assent) unless that conduct can be shown to give rise to risk. (Robert Palmer, 5 Dec 2008 in context of OO) (iii) Other non-conducive conduct 9. The Secretary of State excludes foreign nationals on grounds of public order, international relations/foreign policy, serious organised crime, involvement in largescale corruption in priority countries and membership of an organisation under s3 of the Terrorism Act 2000. 10. The Secretary of State deports foreign nationals on the grounds of criminality. And intelligence which falls short of a conviction can also justify deportation. See: a. HOLAB Guidance Note: Is Deportation Conducive to the Public Good? b. HOLAB Guidance Note: Automatic Deportations 11. UKBA guidance is currently being prepared which sets out when criminal conduct will render deprivation of citizenship conducive to the public good.

September 2009