COURT OF APPEAL

REGINA v. SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte CHEBLAK

Annotated Law Reports version at [1991] 1 W.L.R. 890

COUNSEL: Eugene Cotran, Alper Riza and Michael Massih for the applicant.

John Laws and Alison Foster for the Secretary of State.

SOLICITORS: Jane Coker & Co.; Treasury Solicitor.

JUDGES: Lord Donaldson of Lymington M.R., Beldam and Nolan L.JJ.

DATES: 1991 Jan. 31, Feb. 1; 6

Appeal from Simon Brown J.

Application for judicial review.

Cur. adv. vult.

[*893] 6 February. The following judgments were handed down.

Lord Donaldson of Lymington M.R. In this case the applicant, Mr. Cheblak, who is a citizen of the Lebanon, seeks the assistance of this court in two wholly different, but interrelated, ways. First, he appeals against the refusal by Simon Brown J. on 23 January 1991 to issue a writ of habeas corpus directed to the governor of the prison in which the applicant is at present confined and requiring him to bring the applicant to court with a view to his being freed from confinement. Second, he renews a parallel application which he made unsuccessfully to Simon Brown J. on the same occasion seeking leave to bring proceedings for judicial review of a decision of the Secretary of State for the Home Department to serve notice of intended deportation upon the applicant.

At the conclusion of the hearing we announced our intention to dismiss the appeal and to refuse leave to apply for judicial review, indicating that we would put our reasons into writing and hand them down as soon as possible. This we now do.

This appeal and application – and there have been and no doubt will be others – arise out of the circumstances that British forces are now engaged in hostilities in the Gulf in support of United Nations resolutions. It is important that the public should know, and be in no doubt, that the existence of such hostilities has no effect whatsoever upon the administration of justice in this country. Unless and until Parliament alters the law, which it has not done, the courts will continue to approach such appeals and applications in precisely the same way as they would have done before those hostilities began. To assert, as has been asserted outside court in the context of this particular case, that “British justice must now figure among the casualties of the Gulf war” is simply untrue. Whatever criticisms may be levelled at British justice, they could just as forcefully have been made before the outbreak of hostilities as after, because there has been no change whatsoever. [*894]

Habeas corpus is probably the oldest of the prerogative writs. Authorising its issue in appropriate cases is regarded by all judges as their first duty, because we have all been brought up to believe, and do believe, that the liberty of the citizen under the law is the most fundamental of all freedoms. Consistently with this, an application for a writ of habeas corpus has virtually absolute priority over all other court business. When the applicant gave notice of appeal, this court at once made room in the lists for it to be heard with the greatest possible speed. We were therefore somewhat surprised to be told that the applicant preferred that matters should proceed at a more leisurely pace. There could be no question of his legal representatives not being ready, since the matter had already been fully argued before Simon Brown J. and in Reg. v. Secretary of State for the Home Department, Ex parte B. (unreported), 25 January 1991 heard in the Divisional Court on 25 January 1991. If, as he alleged, the applicant was being detained without lawful justification, not a minute should have been lost in freeing him from that detention. Accordingly we were only prepared to agree to a short postponement of the hearing.

Although, as I have said, the two forms of relief which the applicant seeks are interrelated on the facts of his case, they are essentially different: A writ of habeas corpus will issue where someone is detained without any authority or the purported authority is beyond the powers of the person authorising the detention and so is unlawful. The remedy of judicial review is available where the decision or action sought to be impugned is within the powers of the person taking it but, due to procedural error, a misappreciation of the law, a failure to take account of relevant matters, a taking account of irrelevant matters or the fundamental unreasonableness of the decision or action, it should never have been taken. In such a case the decision or action is lawful, unless and until it is set aside by a court of competent jurisdiction. In the case of detention, if the warrant, or the underlying decision to deport, were set aside but the detention continued, a writ of habeas corpus would issue.

The facts

The applicant is aged 47, having been born in Haifa on 6 January 1944. At the age of four he left Palestine for the Lebanon where he spent his school days. In 1966 he moved to Cairo where he attended the University for three years, achieving the degrees of LL.B. and LL.M. He is therfore a man of considerable academic achievements. From 1968 to 1971 he was employed as a lecturer in public law and political theory at the Constantine University, Algeria. From 1971 to 1975 he earned his living in Beirut as a freelance writer and journalist, but moved to this country when civil war broke out in the Lebanon.

He first arrived in the United Kingdom on 5 March 1975 as a visitor, but subsequently was granted leave to remain as a student and journalist. During the next 10 years he studied for the degree of M.Phil. and undertook work for an Arabic newspaper published in London and owned by Saudi Arabians. He also wrote a report for the International Labour Office in Geneva. During this period, in 1976, he married Farihan, who was a Palestinian. The wedding was in London. In 1981 their son was born. He is now 10. In 1984 their daughter was born. She is now six. Also in 1985 he joined the Arab League Office in London as [*895] a senior research and information officer, a post he still holds. The League is an international organisation whose head of mission in London holds diplomatic status. In June 1987 he was granted indefinite leave to remain in this country. He, his wife and children live in North London in a house which they own. Although at present he holds a Lebanese passport, he has applied to become a naturalised British citizen and says that he regards this country as his only home. That naturalisation application is still under consideration. His relations have all left the Lebanon, but we have not been told where they are now living.

Since his arrival in this country he has travelled to Egypt, Algeria, Tunisia, Iraq, Canada, the United States of America (for which he says that he holds a multiple entry visa valid until 1994) and Western Europe in connection with his work or to see members of his family. The visit to Iraq was in 1979 and lasted for three weeks, one of which was spent in hospital suffering from appendicitis. The purpose of the visit was to carry out research for a dissertation which was subsequently published in England under the title “The Lure of Zion.” This, it would appear, is an academic work concerned with Iraqi Jews during the 1950s. The applicant says that it was well reviewed and was described by the Jerusalem Post as “a most honest and well documented book.” He has also written under the “nom de plume” of Abbas Murad, but has never used this as an alias.

The applicant has told the court that he is a pacifist who is totally opposed to armed struggle and is known to hold such views. His many and varied writings and speaking engagements have been directed to encouraging and supporting peace, particularly in the Middle East. In December 1990 he was a co-signatory of a statement calling for an Iraqi withdrawal from Kuwait, co-ordinated by the United Nations, which led to his being criticised by other Palestinians because it did not call for a simultaneous co-ordinated withdrawal by United States and British forces. Other signatories included Kuwaiti intellectuals. He totally repudiates any suggestion that he has sympathy for or would wish to support Saddam Hussein and his policies either personally or politically. He says, “I could not be described no matter how remotely as being a supporter even in theory, let alone in practice, or terrorism in any form whatsoever.”

Assuming the truth of these assertions, and I have no means of evaluating them, it must have been an appalling shock to be arrested and served with notice of intention to make a deportation order at his home late on the evening of 17 January 1991, the day after hostilities began in the Gulf. He was taken to Willesden police station. Next day he was moved to Pentonville Prison and later to a prison in York.

The notice of intention to deport was in the following terms:

“The Secretary of State has decided that your departure from the United Kingdom would be conducive to the public good for reasons of national security. Accordingly he has decided to make a deportation order against you by virtue of section 3(5)(b) of the Immigration Act 1971 requiring you to leave the United Kingdom and prohibiting you from returning while the order remains in force. By virtue of section 15(3) of the Act, you are not entitled to appeal against the decision to make the deportation order but, if you wish, you may make representations to an independent advisory panel. You will be allowed to appear before the panel if you wish [*896] to do so but may not be represented. To such an extent as the advisers may sanction, you may be assisted by a friend and arrange for third parties to testify on your behalf. You should inform the officer who hands this letter to you whether or not you wish to make representations to the panel of advisers. If the Secretary of State makes the deportation order you will, by virtue of section 17(1) of the Act, have a right of appeal against removal to the country specified in the removal directions on the grounds that you ought to be removed to a different country specified by you.”

The present proceedings appear formally to have been begun on 23 January 1991 but, since the hearing before Simon Brown J. took place on that day, I think that informal approaches to the court must have taken place a little earlier. During the course of the hearing Miss Foster, counsel appearing for the Secretary of State, said that she was authorised to give further information as to the nature of the allegations against the applicant, namely:

“The Iraqi Government has openly threatened to take terrorist action against unspecified Western targets if hostilities break out in the Gulf. In the light of this, your known links with an organisation which we believe would take such action in support of the Iraqi regime would make your presence in the United Kingdom an unacceptable security risk.”

Miss Coker, the applicant’s solicitor, in an affidavit dated 30 January 1991 stated she had been in communication with the Home Office and understood that what she describes as a “stock letter” would be sent to her. At that time she had not received it, but she said that she had obtained a copy. It read:

“Further to my letter of 17 January, handed to you by an immigration officer, your subsequent request to appear before the advisory panel has been passed to the secretary (Mr. A. Shillabeer, address as above, telephone number 081-760 2648) who will be in touch with you in due course. Paragraph 157 of the Immigration Rules (H.C. 251) states: ‘such cases are subject to a non-statutory advisory procedure and the person proposed to be deported on that ground will be informed, so far as possible, of the nature of the allegations against him and will be given the opportunity to appear before the advisers, and to make representations to them, before they tender advice to the Secretary of State.’ My letter of 17 January stated that the reasons for the Secretary of State’s proposed action were ‘national security’ and I am now authorised to add the following grounds. ‘The Iraqi Government has openly threatened to take terrorist action against unspecified western targets if hostilities break out in the Gulf. In the light of this, your known links with an organisation which we believe could take such action in support of the Iraqi regime make your presence in the United Kingdom an unacceptable security risk.’ A deportation order cannot be made against you until the Home Secretary has considered the advice from the advisory panel. You will be detained pending your appearance before the panel. This decision will, however, be kept under review.”

Mr. Cotran, of counsel, appearing for the applicant, attached some significance to the difference in wording between the statement attributed [*897] to Miss Foster in the judgment of Simon Brown J. and the terms of this letter. The letter used the words “could take such action.” The statement appears to have said “would take such action.” Given that Miss Foster was clearly reading from written instructions and that her words had to be noted by the judge in longhand or, if (which I doubt) he had the benefit of a transcript, had to be taken down by a shorthand writer, I find it impossible to attach any significance to the single letter difference between the two texts.

Habeas corpus

The warrant which is relied upon as authority for the detention of the applicant was in the following terms:

“Immigration Acts 1971 and 1988 Authority for Detention

“Whereas the Secretary of State has decided to make a deportation order under section 5(1) of the Immigration Act 1971 against Abbas Fadl Chiblak alias Abbas Murad a citizen of Lebanon and he is neither detained in pursuance of the sentence or order of any court nor for the time being released on bail by any court having power so to release him/her. The Secretary of State hereby, in pursuance or paragraph 2(2) of Schedule 3 to that Act, authorises any constable at any time after notice of the decision has been given to the said Abbas Fadl Chiblak alias Abbas Murad in accordance with the Immigration Appeals (Notices) Regulations 1984, to cause him to be detained until the deportation order is made.

(Signature)

“On behalf of the Secretary of State for the Home Department IMP/A211138

17.1.91 (date)”

The statutory framework

I set out the statutory provisions only in so far as they are material:

Section 5 of the Immigration Act 1971

“Procedure for, and further provisions as to, deportation

“5(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force. (2) A deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a [British citizen]… . (5) The provisions of Schedule 3 to this Act shall have effect with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and with respect to the detention or control of persons in connection with deportation.”

Section 3(5) of the Act of 1971

“A person who is not [a British citizen] shall be liable to deportation from the United Kingdom – (a) if, having only a limited leave to [*898] enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; or (b) if the Secretary of State deems his deportation to be conducive to the public good; or (c) if another person to whose family he belongs is or has been ordered to be deported.”

Paragraph 2 of Schedule 3 to the Act of 1971

“Where notice has been given to a person in accordance with regulations under section 18 of this Act of a decision to make a deportation order against him, and he is neither detained in pursuance of the sentence or order of a court nor for the time being released on bail by a court having power so to release him, he may be detained under the authority of the Secretary of State pending the making of the deportation order… . (4) In relation to detention under sub-paragraph (2) or (3) above, paragraphs 17 and 18 of Schedule 2 to this Act shall apply as they apply in relation to detention under paragraph 16 of that Schedule.”

The reference to paragraph 16 of Schedule 2 would appear to be a drafting device designed to avoid constant references to paragraph 2 of Schedule 3 in paragraphs 17 and 18 of Schedule 2. Suffice it to say that paragraph 16 has nothing to do with this case, but gives immigration officers a power of detaining certain persons, such as those who have arrived in this country by ship or aircraft and are required to submit to examination. Paragraphs 17 and 18 of Schedule 2 set out the rules governing such detention and, in consequence of paragraph 2(4) above, those governing the applicant’s detention.

Paragraphs 17 and 18 of Schedule 2 to the Act of 1971

“17(1) A person liable to be detained under paragraph 16 above may be arrested without warrant by a constable or by an immigration officer… .

“18(1) Persons may be detained under paragraph 16 above in such places as the Secretary of State may direct (when not detained in accordance with paragraph 16 on board a ship or aircraft). (2) Where a person is detained under paragraph 16, any immigration officer, constable or prison officer, or any other person authorised by the Secretary of State, may take all such steps as may be reasonably necessary for photographing, measuring or otherwise identifying him. (3) Any person detained under paragraph 16 may be taken in the custody of a constable, or of any person acting under the authority of an immigration officer, to and from any place where his attendance is required for the purpose of ascertaining his citizenship or nationality or of making arrangements for his admission to a country or territory other than the United Kingdom, or where he is required to be for any other purpose connected with the operation of this Act. (4) A person shall be deemed to be in legal custody at any time when he is detained under paragraph 16 or is being removed in pursuance of sub-paragraph (3) above.”

The combined effect of these provisions is that, if the Secretary of State has decided to make a deportation order under section 5(1) against a person liable to deportation under section 3(5), that person [*899] may lawfully be detained under the authority of the Secretary of State provided that (so far as is material in the applicant’s case) notice has been given to him in accordance with regulations made under section 18 of the Act and any person so detained is deemed to be in legal custody.

Since the foundation for an application for a writ of habeas corpus is the fact that he is being detained otherwise than in legal custody, it is necessary to inquire whether these conditions are met. If they are, there is no room for the issue of a writ of habeas corpus. If they are not, it should and would issue. With one exception it is conceded that all the conditions are met. The exception is the requirement that notice shall have been given to the applicant in accordance with regulations made under section 18 of the Act. I therefore turn to that section and those regulations.

Section 18 of the Act of 1971

“Notice of matters in respect of which there are rights of appeal.

“18(1) The Secretary of State may by regulations provide – (a) for written notice to be given to a person of any such decision or action taken in respect of him as is appealable under this Part of this Act (whether or not he is in the facts of his case entitled to appeal) or would be so appealable but for the ground on which it is taken; (b) for any such notice to include a statement of the reasons for the decision or action and, where the action is the giving of directions for the removal of any person from the United Kingdom, of the country or territory to which he is to be removed; (c) for any such notice to be accompanied by a statement containing particulars of the rights of appeal available under this Part of this Act and of the procedure by which those rights may be exercised; (d) for the form of any such notice or statement and the way in which a notice is to be or may be given. (2) For the purpose of any proceedings under this Part of this Act a statement included in a notice in pursuance of regulations under this section shall be conclusive of the person by whom and of the ground on which any decision or action was taken. (3) The power to make regulations under this section shall be exercisable by statutory instrument, and any statutory instrument containing such regulations shall be subject to annulment in pursuance of a resolution of either House of Parliament.”

The decision to deport the applicant is not appealable, because it was taken on the ground that his deportation is conducive to the public good for reasons of national security. This makes no difference to the power of the Secretary of State to make regulations under section 18 or to the content of those regulations, since the section also applies where the decision would be appealable but for the ground on which it was taken. However, a somewhat refined argument was addressed to us based upon the wording of section 18(1)(a) as compared with that of section 15(3), which is the subsection defining the category of decisions which are unappealable under the Act of 1971. I must consider that argument hereafter, but meanwhile it is convenient to set out the terms of section 15(3). These are:

“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 or of the relations between the United [*900] Kingdom and any other country or for other reasons of a political nature.”

Regulations have been made under section 18 and they are the Immigration Appeals (Notices) Regulations 1984. So far as is material they are as follows:

“3(1) Subject to the following provisions of this regulation, written notice of any decision or action which is appealable (or would be appealable but for the grounds of the decision or action) shall as soon as practicable be given in accordance with the provision of these regulations to the person in respect of whom the decision or action was taken.

“4(1) Subject to the provisions of paragraph (2) [which relates to the variation of a limited leave to enter or remain in the United Kingdom] any notice given under regulation 3 shall – (a) include a statement of the reasons for the decision or action to which it relates; …”

The basis of the claim for a writ habeas corpus

It is contended on behalf of the applicant that the reasons given in the notice, namely “reasons of national security” are insufficient to satisfy the requirements of regulation 4(1)(a). That, and that alone, is the basis of the claim to be entitled to a writ of habeas corpus.

The sufficiency of the reasons

In the context of rights of appeal to an adjudicator, section 15(3) of the Act makes a clear distinction between the ground of a decision to deport and the reason for deciding to deport on that ground. The ground is “deportation is conducive to the public good.” A right of appeal exists in respect of some decisions to deport on this ground but not all. The distinction depends upon what are the reasons for deportation being conducive to the public good. If they are (i) the interest of national security, (ii) the interests of the relations between the United Kingdom and any other country or (iii) other reasons of a political nature, there is no right of appeal. If, on the other hand, the reason are, for example, suspicion of involvement in serious crime, a long criminal record or other antisocial behaviour, there will be a right of appeal.

So much is conceded by Mr. Riza appearing for the applicant. However, he submits that “the ground” in section 18(1)(a) must have a different meaning which includes not only the ground of being “conducive to the public good” but also one of the three classes of reason which render the decision to deport unappealable. If “ground” has this extended meaning, then in his submission “the reasons” in section 18(1)(b) and in paragraph 4 of the Notices Regulations must refer to reasons other than, and in addition to, those reasons which distinguish appealable from unappealable decisions to deport upon the grounds that this course is conducive to the public good.

The argument is an ingenious as it is unsound. Parliament has chosen to make a division between appealable and unappealable decisions not solely upon the basis of the broad ground upon which the decision is taken, but also, in the case of “conducive” decisions, of the reasons. In this context reasons are used adjectivally to qualify the ground. Thus, as [*901] it were, green grounds attract rights of appeal, but red grounds do not. A ground qualified by a reason is still a “ground” for the purposes of section 18(1)(a) and the reason which is used as the adjectival qualification remains a “reason” for the purposes of section 18(1)(b) and paragraph 4 of the Notices Regulations.

In truth this is merely another version of the argument advanced and rejected in Reg. v. Secretary of State for the Home Department, Ex parte Swati [1986] 1 W.L.R. 477, which was a refusal of entry case, where Parker L.J. said at p. 490:

“What Mr. Blom-Cooper is in effect seeking is not reasons for the refusal, but the reasons for the reasons for refusal and for that the Notices Regulations do not provide.”

The application for leave to apply for judicial review

The requirement that leave be obtained before a substantive application can be made for relief by way of judicial review is designed to operate as a filter to exclude cases which are unarguable. Accordingly an application for leave is normally dealt with on the basis of summary submissions. If an arguable point emerges, leave is granted and extended argument ensues upon the hearing of the substantive application. If not, it is refused. If the normal procedure had been adopted, this application would have been refused in short order, for it is manifestly unarguable. However, in view of the public interest which it has aroused and the widespread misunderstanding of the issues involved, we allowed it to be as fully argued as if it had been a substantive application.

Constitutional safeguards and the nature of judicial review

The judicial review jurisdiction is supervisory in its nature. It is not appellate. Parliament has entrusted the Secretary of State with the duty of deciding whether or not to make deportation orders. In some cases it has provided a right of appeal to an adjudicator and from him to an immigration appeal tribunal. In others, including cases like that of the applicant, it has expressly excluded any right of appeal.

Notwithstanding this exclusion, in 1971 the then Home Secretary established a non-statutory procedure whereby he could be advised on whether or not he should rescind or modify a decision to deport in cases in which no right of appeal existed. It was announced in the House of Commons on 15 June 1971 and described in the following terms:

“All these proceedings start with a personal decision by the Home Secretary on national security grounds. The person concerned is notified of the decision and he will be given by the Home Office such particulars of allegations as will not entail disclosure of sources of evidence. At the same time the person will be notified that he can make representations to the three advisers and will be given time to decide whether or not to do so. The advisers will then take account of any representations made by the person concerned. They will allow him to appear before them, if he wishes. He will not be entitled to legal representations, but he may be assisted by a friend to such extent as the advisers sanction. As well as speaking for himself, he may arrange for a third party to testify on his behalf. Neither the sources of evidence nor evidence that might lead to disclosure of the sources can be revealed to the person concerned, [*902] but the advisers will ensure that the person is able to make his points effectively and the procedure will give him the best possible opportunity to make the points he wishes to bring to their notice. This is all on the lines of the procedure which has worked for some time in regard to British Crown servants. There is another point which arises from some remarks made recently by Mr. Wigoder. Since the evidence against a person necessarily has to be received in his absence, the advisers in assessing the case will bear in mind that it has not been tested by cross-examination and that the person has not had the opportunity to rebut it. This is an important point which will be contained in the instructions. On receiving the advice of advisers the Secretary of State will reconsider his original decision, but the advice given to him will not be revealed. If the person does not wish his case to go to the three advisers, he will be given full opportunity to make representations to the Secretary of State, and the names of the advisers will be made known on their appointment.”

The right of an intended deportee to the benefit of this procedure has been continued for the past 20 years and is now enshrined in paragraph 157 of the Statement of Changes in Immigration Rules 1990 (H.C. 251). It cannot therefore be withdrawn without notice. At the present time the members of the panel of advisers are Lloyd L.J. (a serving judge of this court and, incidentally, the Vice-Chairman of the Security Commission which reports to the Prime Minister on the work of the security services). Mr. David Neve (the very recently retired President of the Immigration Appeal Tribunal) and Sir Robert Andrew K.C.B. (a former Deputy Under Secretary at the Home Officce and former Permanent Under Secretary at the Northern Ireland Office). Sir Mark Russell K.C.M.G. (a former ambassador to Turkey and Deputy Secretary at the Foreign & Commonwealth Office) has sat as a member of the panel of three when one of the other members has not been available.

The Home Secretary is fully accountable to Parliament for his decisions whether or not to deport and, as part of that accountability, for any failure to heed the advice of the non-statutory panel.

As the case demonstrates, the Home Secretary is also subject to the jurisdiction of the High Court and of this court in respect of alleged arrests without authority or due process. Nevertheless the exercise of the jurisdiction of the courts in cases involving national security is necessarily restricted, not by any unwillingness to act in protection of the rights of individuals or any lack of independence of the executive, but by the nature of the subject matter. National security is the exclusive responsibility of the executive and, as Lord Diplock said in Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, 412: “It is par excellence a non-justiciable question.”

The supervisory jurisdiction of the courts also extends to the decisions of the advisory panel, in so far at least as it may be alleged that it has acted unfairly, taking account of the fact that its procedures must necessarily be tailored to the unique nature of the subject matter of its remit: see per Lord Denning M.R. in Reg. v. Secretary of State for Home Affairs, Ex parte Hosenball [1977] 1 W.L.R. 766, 781. [*903]

The basis of the application

In essence the applicant seeks to invoke the jurisdiction of the court upon three grounds: (1) The failure to give more extensive reasons for the decision to deport, contrary to natural justice. (2) A failure to take account of all relevant circumstances as required by paragraph 167 of the Statement of Changes in Immigration Rules 1990 (H.C. 251). (3) The irrationality of the decision to deport the applicant and to detain him pending deportation.

In my opinion he has no arguable case under any of these heads.

Failure to give further reasons

Although the notice of intention to deport only told the applicant that the ground and reasons for this decision were that his departure from the United Kingdom would be conducive to the public good for reasons of national security, as I have already mentioned this was later amplified by a statement that he was known to have links with an unspecified organisation which the Home Secretary believed could (or would) take terrorist action against Western targets if hostilities were to break out in the Gulf.

The applicant complains that this is wholly insufficient to enable him to meet the allegation that his departure from the United Kingdom would be conducive to the public good. In reply Mr. Usher, a Senior Executive Officer in the Home Office, has sworn an affidavit on behalf of the Home Secretary stating: “Further details … cannot be disclosed because to do so would pose an unacceptable risk to national security.”

There is no suggestion, still less any evidence, that either the Home Secretary or Mr. Usher is so asserting are acting otherwise than in the utmost good faith. We are therefore, not for the first time, faced with a collision between two imperatives, the rights of the individual citizen, albeit a visitor to our shores, and the needs of national security. Of that Geoffrey Lane L.J. said in Reg. v. Secretary of State for Home Affairs, Ex parte Hosenball [1977] 1 W.L.R. 766, 783-784:

“There are occasions, though they are rare, when what are more generally the rights of an individual must be subordinated to the protection of the realm. When an alien visitor to this country is believed to have used the hospitality extended to him so as to present a danger to security, the Secretary of State has the right and, in many cases, has the duty of ensuring that the alien no longer remains here to threaten our security. It may be that the alien has been in the country for many years. It may be that he has built a career here in this country, and that consequently a deportation order made against him may result in great hardship to him. It may be that he protests that he has done nothing wrong so far as this country’s security is concerned. It may be that he protests that he cannot understand why any action of this sort is being taken against him. 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 [*904] 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. One can see that in Rex v. Hardy (1794) 24 St. Tr. 199, 808, which was cited by Lord Simon of Glaisdale in Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Department [1973] A.C. 388, 407.

“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 aford 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.”

The problen may well appear insoluble if it is approached through the insular and blinkered eyes of those who regard the adversarial system of justice as the only one worthy of the name. But there are other systems which are widely accepted as just in other parts of the world, including the continent of Europe. There the judge or tribunal is not a passive spectator or referee and the essence of the system is not an adversarial contest, but a judicial investigation. The approach adopted by the Home Secretary’s advisory panel is, perhaps, best described as an “independent quasi-judicial scrutiny.” The members all have the necessary security clearance to enable them to take an active role in questioning and evaluating the weight of the evidence and information which formed the basis of the Home Secretary’s initial decision. Similarly they seek to discover any countervailing evidence, information or representations which the detainee may wish to put forward and evaluate its weight. Whilst that part of their task which involves the protection of the rights of the individual would be easier of performance if they could reveal to the detainee all that has become known to them, it is by no means impossible to perform it effectively where they cannot do so. Sufficient may already have been revealed by the Home Secretary himself to steer the detainee in the right direction and it is always possible for members of the panel to ask questions in a form which is [*905] itself not informative, but which leads the detainee on to giving as full an account as he wishes of his contacts and activities in the areas which are relevant to the Home Secretary’s decision.

Failure to take account of all relevant circumstances

The Home Secretary’s obligation under paragraph 167 of the Statement of Changes in Immigration Rules 1990 (H.C. 251) is set out in the following terms:

“The Secretary of State has the power to deport a person if he deems it conducive to the public good. General rules about the circumstances in which deportation is justified on these grounds cannot be laid down, and each case will be considered carefully in the light of the relevant circumstances known to the Secretary of State including those listed in paragraph 164.”

The factors in paragraph 164 are:

“age; length of residence in the United Kingdom; strength of connections with the United Kingdom; personal history, including character, conduct and employment record; domestic circumstances; the nature of the offence of which the person was convicted; previous criminal record; compassionate circumstances; any representations receivced on the person’s behalf.”

It was argued on the applicant’s behalf that the Home Secretary had an immense amount of information about him, because of his immigration history and his application for naturalisation and that, in the light of that information, the only possible explanation for his decision was that he had not had regard to all the relevant circumstances. This involves assuming that which is in issue, namely, the applicant is no risk to national security, and then seeking an explanation for the Home Secretary’s contrary view. This was a personal decision of the Home Secretary and we are entitled to assume, in the absence of evidence to the contrary, that he took account of all relevant circumstances which were brought to his attention. If anything escaped his notice and he was thereby led into error, the remedy lies in the applicant appearing before the advisory panel and laying all relevant circumstances before it.

Irrationality

There can be no doubt that the applicant’s record, as it has been put before us, makes the Home Secretary’s decision surprising, but it is a record which in some theoretical circumstances could look very different. Those who are able most effectively to undermine national security are those who least appear to constitute any risk to it. In saying this I am not to be taken as implying that the applicant is other than the innocent victim of circumstances or that on the other hand the Home Secretary’s decision was wrong. I am simply saying that there is no evidence whatsoever that the decision is irrational and, in this particualr field, it would probably be an unique case if there was.

Conclusion

This appeal and application have given rise to widespread anxiety and no less misunderstanding. The anxiety is understandable and commendable, since the maintenance of the rights of individuals depends, [*906] in part at least, upon there being a general belief in their fundamental importance and willingness to campaign to uphold them. However the misunderstanding is quite another matter and should, if possible, be reduced.

The judicial system in this country does not consist simply of the courts. It includes a multitude of specialist tribunals and panels (e.g. the City Take-Over Panel) each with its own remit and procedures. This makes sense. Specialisation makes for better, cheaper and quicker decision making. The hearings of some are open to the public. Others which are involved with intimate personal matters, such as Mental Health Review Tribunals, are not. Most permit representation by lawyers, but it is not self-evident that this is necessarily an advantage. The members of an experienced specialist tribunal or panel adopting a “hands on” approach may well be able to reach the right conclusion just as often, and a lot more cheaply and quickly, without as with such formal representation.

The judges of the courts do not “wash their hands” of matters referred to these tribunals and panels. In some cases Parliament has provided for an appeal to the courts on questions of law arising in the course of their work. But in all cases the courts retain a supervisory jurisdiction designed to ensure that their proceedings are fairly and properly conducted in accordance with the law.

And it is the law and the rule of law which governs all. Judges take a judicial oath to “do right to all manner of people after the laws and usages of this Realm, without fear or favour, affection or ill will.” The “usages of this Realm” is an old fashioned phrase meaning in this context the customary procedures. Justice is not an abstract concept. It has to have a context and a content. The context is provided by the facts underlying particular disputes. The content is the law.

In individual cases injustice can arise from two quite different sources – human fallibility on the part of the judges or tribunal members and defects in the law. Human fallibility can never be eliminated, but its effects can be and are reduced by dedicated professionalism and by the system making provision for appeals. Defects in the law can be remedied by changing the law, but not by departing from it, an approach which would end by producing far more injustices than it cured. Judges are exhorted by commentators to be “robust.” If what is meant is that judges should be very ready to re-examine the law in novel or changed circumstances, I agree that judges should indeed be “robust” and I hope that we are. But if what is meant is that in cases which arouse their sympathy, of which the present could well be one, they should depart from the law, I must disagree.

In the parallel case Reg. v. Secretary of State for the Home Department, Ex parte B. (unreported), 25 January 1991, which was heard in the Divisional Court of the Queen’s Bench Division, Mann L.J. said:

“This court is aware of the tension which arises between considerations of liberty and the freedom to live where one wishes and considerations of national security upon the other hand.”

So is this court, but two comments may perhaps be made. The first is that, although they give rise to tensions at the interface, “national security” and “civil liberties” are on the same side. In accepting, as we must, that to some extent the needs of national security must displace [*907] civil liberties, albeit to the least possible extent, it is not irrelevant to remember that the maintenance of national security underpins and is the foundation of all our civil liberties. The second is that it is not only national security which creates such tensions. So does the ordinary administration of jutice. A citizen is charged with a very serious offence and remanded in custody. Later at his trial or on appeal he is acquitted. Only he will know for certain whether on the evidence he was extremely lucky to be acquitted, whether he was entitled to be acquitted because, although he did it, the prosecution could not prove it or whether he was wholly innocent. Since the system does not, and perhaps very seldon could, differentiate between these three categories, the wholly innocent accused, who alone has a real grievance at having been detained in prison pending his trial, has to accept his misfortune as part of the price of citizenship in a society in which the rule of law prevails.

The jurisdiction of the courts is not, and never has been all-embracing. Thus they have no right to consider obligations arising under international treaties. In the case of national security, the responsibility is exclusively that of the government of the day, but its powers are limited by statute and the courts will intervene if it is shown that the minister responsible has acted otherwise than in good faith or has in any way overstepped the limitations upon his authority which are imposed by the law. No lack of good faith has been suggested in this case, but we have fully and speedily investigated the allegation that the Secretary of State had no power to detain the applicant.

The current system of independent scrutiny of the Home Secretary’s decision to deport for reasons of national security, which has involved the creation of a specialist panel currently presided over by Lloyd L.J. was approved by Parliament 20 years ago. It replaced a statutory appeal system under the Immigration Appeals Act 1969. The appeal tribunal created under that Act was designed for an adversarial system of general application to all appeals against decisions to deport, each party presenting its evidence subject to cross-examination, with the tribunal giving a binding decision. However where the Secretary of State certified that matters could not be disclosed to the appellant because of the interests of national security, the essential features and safeguards of the adversarial system disappeared, but it is not apparent that they were replaced by the safeguards of the present system with the additional respsonsibility which that system imposes upon the members of the panel.

I have no doubt that the advisory panel is susceptible of judicial review if, for example, it could be shown to have acted unfairly within its terms of reference. The fact that its decisions operate not as such, but as recommendations, may well be intended to reflect the ultimate personal responsibility of the Home Secretary in so sensitive and important a field, but whilst I strongly suspect that this represents a difference of form rather than of substance, it is not for me as a judge to inquire and the answer would only be clear if one knew the number of occasions, if any, upon which its recommendations have not been accepted. That legal representation is not permitted, although there would appear to be no objection to the prospective deportee being accompanied and assisted by a legally qualified friend, stems from the tribunal’s terms of reference. If it is objectionable, as to which there may be more than one view, this is a matter for Parliament which approved the terms of reference and not for the courts. That the [*908] prospective detainee is not entitled to be given the fullest particulars of what is alleged against him would, in other circumstances, undoubtedly be objectionable as constituting a denial of natural justice. But natural justice has to take account of realities and something which would otherwise constitute a breach is not to be so considered if it is unavoidable. For reasons explained by Geoffrey Lane L.J. in Ex parte Hosenball [1977] 1 W.L.R. 766, 783-784, in the extract from his judgment which I have reproduced, this is not always avoidable, although I do not doubt that the panel will avoid it so far as is consistent with the needs of national security.

If there is a lesson to be drawn from these proceedings it is, I think, that detainees should try to have greater faith in the desire of the panel to safeguard their liberty to the maximum possible extent consistent with the risk to national security and should not rush off to the courts which are, at best, a second line of defence in special circumstances.

BELDAM L.J. Mr. Cheblak, the applicant, was born in Palestine in January 1944. He has Lebanese citizenship and is a freelance writer and journalist. He has lived in the United Kingdom since 1975 and has pursued an academic career here. He has continued freelance writing and is presently a senior research officer with the Arab League in London. In May 1987 he was given indefinite leave to remain in the United Kingdom. He is married and has two children who are British citizens. The family live in London where they have a home of their own. In 1989 he applied for naturalisation as a British citizen. He is well known as a writer. He has publicly campaigned for human rights in the Arab world and has advocated a just and peaceful settlement of disputes in the Middle East. On the evidence he has filed he establishes credentials as a scholar and author devoted to the ideals of peace and reconciliation. It should be emphasised that there is no shred of evidence in this case that he has ever suggested, encouraged or condoned any act of violence of terrorism whatsoever. The applicant, his family and his friends must have been stunned when on 17 January 1991 he was served with a notice stating that the Home Secretary had taken a decision to deport him on the ground that his departure from the United Kingdom would be conducive to the public good for reasons of national security. The notice was accompanied by an authority for his detention signed on behalf of the Secretary of State for the Home Department. Under this authority the applicant has since been detained in accordance with the provisions of the Immigration Act 1971. By these proceedings he sought a writ of habeas corpus and applied for leave to take proceedings for judicial review of the decision to deport him. Simon Brown J. heard his applications on 23 January 1991. He refused both applications. At the hearing a statement was read to the court on the Home Secretary’s behalf that the decision in respect of the applicant was taken on the grounds that the Iraqi government had threatened openly to take terrorist action against unspecified Western targets if hostilities broke out in the Gulf and that hostilities have broken out in the Gulf; that in the light of the Secretary of State’s knowledge of the applicant’s links with an organisation which it was believed could take such action in support of the Iraqi regime his presence in the United Kingdom represented an unacceptable security risk. Further details of the evidence against the applicant, it was said, could not be disclosed because to do so would pose an unacceptable risk to national security. [*909]

Those grounds were repeated in a letter sent by facsimile transmission to the applicant’s solicitors on 30 and 31 January, in an affidavit sworn on behalf of the Secretary of State. The applicant now appeals against the refusal to grant him a writ of habeas corpus and has renewed his application for judicial review.

In my judgment the statement in the affidavit filed on behalf of the Home Secretary that on grounds of national security the deportation of the applicant is deemed by the Home Secretary to be conducive to the public good and that to disclose further details of evidence against the applicant would pose an unacceptable risk to national security is decisive of the application for judicial review. It also effectively precludes the court in the application for the writ of habeas corpus from looking beyond the legal validity of the order for detention, to inquire into the truth of the underlying facts.

The power to make a deportation order in the applicant’s case is contained in section 3(5) of the Immigration Act 1971. That section provides:

“A person who is not [a British citizen] shall be liable to deporation from the United Kingdom … (b) if the Secretary of State deems his deportation to be conducive to the public good; …”

Section 5 of the Act provides:

“(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him … (5) The provisions of Schedule 3 to this Act shall have effect with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and with respect to the detention or control of persons in connection with deportation.”

It is further provided by section 15(3) of the Act:

“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 or of the relations between the United Kingdom and any other country or for other reasons of a political nature.”

However, in such a case, under the procedure stated by the then Secretary of State in Parliament on 15 June 1971, a person can apply for his case to be heard under a non-statutory advisory procedure by a panel of three set up for that purpose and under rules laid before Parliament by the Secretary of State under section 3(2) of the Immigration Act 1971 when such a procedure is invoked the person will be informed so far as possible of the nature of the allegations against him and will be given the opportunity to appear before the advisers and to make representations to them before they tender advice to the Secretary of State.

Regulations made under section 18 of the Act provide for written notice to be given of the decision to make a deportation order and such notice is required even though the decision is not appealable. Where notice has been given in accordance with the regulations, the person may be detained under the authority of the Secretary of State pending the making of the deportation order: see paragraph 2(2) of Schedule 3 [*910] to the Act. Under the Immigration Appeals (Notices) Regulations 1984, the notice must be given as soon as practicable and must include a statement of the reasons for the decision.

Such is the statutory background to the issues to be decided in the appeal.

Although the application for the writ of habeas corpus and for leave to apply for judicial review are distinct in origin and subject to different rules of court, in practice such applications are frequently heard together and decided in accordance with similar principles. These principles were examined in Reg. v. Secretary of State for the Home Department, Ex parte Khawaja [1984] A.C. 74, a case in which the applicant sought to challenge his detention pending his summary removal as an illegal entrant. One of the questions there considered was the extent to which in such a case the court could review the decision and the facts on which it was based.

Lord Scarman, at p. 110, discussing the applicable principles, compared the task of the court in judicial review and the application of the Wednesbury principle (see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223) with the clear words of section 3 of the Habeas Corpus Act 1816 which he said contemplated the possibility of an investigation by the court so that it may satisfy itself where the truth lies. And he went on:

“There is here a principle which the judges, faced with decisions by statutory authorities which restrict or take away liberty, have accepted as being justly met by the rule, the existence of which was recognised in Zamir’s case [1980] A.C. 930 though not applied, that where the exercise of executive power depends on the precedent establishment of an objective fact, the courts will decide whether the requirement has been satisfied.”

Lord Scarman pointed out that the nature of the remedy sought could not affect the principle of law for in both cases liberty was in issue and he concluded that, on the wording of the statute relevant to the grounds of decision in that case, it was impossible to imply words which would prevent the court from reviewing the facts on which the decision that the applicant was an illegal immigrant was based. If Parliament intends to exclude effective judicial review of the exercise of a power in restraint of liberty, it must use clear words.

The context of the discussion of principle in Khawaja’s case was the decision to detain and remove from the country a person alleged to be an illegal entrant and whether, on the true construction of the statutory provisions, the court could review the facts on which the immigration officer had concluded that the applicant was in fact an illegal entrant.

The power with which the court is concerned in the present case is different and does not depend upon the establishment of facts for its exercise. It is exercisable if the Secretary of State deems a person’s deportation to be conducive to the public good. Such a power is one which, it seems to me, confers upon the Secretary of State a discretion limited only by the requirement that he must act in good faith.

The power to detain under the authority of the Secretary of State pending the making of the deportation order is, however, only exercisable where notice has been given in accordance with the regulations. To comply with the regulations the notice must include a statement of the reasons for the decision. The authority for the detention of the applicant [*911] signed on behalf of the Secretary of State on 17 January 1991 refers to the notice of the decision given to the applicant in accordance with the regulations. That notice stated that the grounds for the Secretary of State’s decision were that it would be conducive to the public good for reasons of national security.

The first argument advanced for the applicant is that his detention was unlawful because the notice he was given does not include a statement of the reasons for the Secretary of State’s decision. It merely repeats the words of the statute “for reasons of national security.” It was argued that, although in section 15(3) of the Act the interests of national security must be regarded as one of the reasons for the ground of decision, reasons of national security could equally well be regarded as a ground for the decision in the context of section 18(1)(a) of the Act. Consequently, it was argued, regard must be had to the meaning of the words in the Regulations and the purpose for which the reasons were required to be given. The Regulations also require a statement informing the person to whom the notice is given of his right of appeal and the manner in which it could be brought and so it was argued that the reasons were required to be given to enable the person to decide whether to appeal and, if so, on what grounds. Although the applicant had no right of appeal, nevertheless the requirement for inclusion in the notice was no different in cases in which there was and in which there was not a right of appeal. The Immigration Appeals (Procedure) Rules 1984 (S.I. 1984 No. 2041), which form part of the same code, do require that a person who intends to appeal against a deportation order shall state the grounds of appeal on which he intends to rely but they also provide that as soon as practicable after notice of appeal is given the respondent shall prepare a written statement of the facts relating to the decision or action in question and the reason therefor. For my part, I prefer the construction based on the terms of section 15(3) that the interests of national security, the relations between the United Kingdom and any other country and reasons of a political nature are the reasons for a decision that the deportation is conducive to the public good. Accordingly I would hold that the notice was in accordance with the Regulations and that the authority for detention is, on the face of it, a valid authority.

Can the court inquire further in a case such as this to review the reasons and the facts on which the decision was based? It is not a case in which the ground of decision is based on any precedent fact. The discretion given to the Secretary of State is unfettered and no question of bad faith is raised. Lord Atkin, whose judgment in Liversidge v. Anderson [1942] A.C. was also his judgment in the case which immediately followed, Greene v. Secretary of State for Home Affairs [1942] A.C. 284, tentatively suggested that the applicant could rely upon the presumption against imprisonment and putting material before the court to lead to the conclusion that the imprisonment was unlawful, throw the onus upon the Secretary of State. On the other hand, Viscount Maugham and Lord Wright in the same case were firmly of the opinion that it was unnecessary for the Secretary of State in such a case to file evidence at all. It is well settled that the courts must accept the evidence of the Crown and its officers on matters of national security. The reasons were clearly expressed by Geoffrey Lane L.J. in the passage of his judgment in Reg. v. Secretary of State for Home Affairs, Ex parte Hosenball [1977] 1 W.L.R. 766 to which Lord Donaldson of [*912] Lymington M.R. has already referred. To the same effect Lord Scarman said in Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, 406:

“Once the factual basis is established by evidence so that the court is satisfied that the interest of national security is a relevant factor to be considered in the determination of the case, the court will accept the opinion of the Crown or its responsible officer as to what is required to meet it, unless it is possible to show that the opinion was one which no reasonable minister advising the Crown could in the circumstances reasonably have held. There is no abdication of the judicial function, but there is a common sense limitation recognised by the judges as to what is justiciable: and the limitation is entirely consistent with the general development of the modern case law of judicial review.”

Parliament has conferred on the Secretary of State the power to say when the deportation of a foreign national is conducive to the public good for reasons of national security. Although the reasons may not seem convincing to the court because of lack of any information upon which the decision is based, the statement that to give further information might jeopardise national security is one that the court is bound to accept. For these reasons I would uphold the decision to refuse the applicant a writ of habeas corpus and leave to bring proceedings for judicial review.

Before Simon Brown J. the Secretary of State contended that the applicant’s application for the writ of habeas corpus was wholly misconceived because, by paragraph 2(4) of Schedule 3 to the Act the provisions of Schedule 2, paragraph 18(4) applied to a person detained under paragraph 2(2) of Schedule 3.

Paragraph 18(4) provides:

“A person shall be deemed to be in legal custody at any time when he is detained under paragraph 16 or is being removed in pursuance of sub-paragraph (3) above.”

Paragraph 2(4) of Schedule 3 provides:

“In relation to detention under sub-paragraphs (2) or (3) above, paragraphs 17 and 18 of Schedule 2 to this Act shall apply as they apply in relation to detention under paragraph 16 of that Schedule.”

Paragraph 16 refers to persons who, under paragraph 2, on arrival by ship or aircraft may be questioned by immigration officers or examined by medical inspectors and contains provisions for their removal from the ship or aircraft, their prevention from disembarking and for detention by the captain of the ship or aircraft on board with the authority of an immigration officer. I do not read these provisions as being intended to provide legal authority for a detention under paragraph 2(2) which does not comply with the requirements of lawful detention under that sub-paragraph. The legality of such a detention is already provided by paragraph 2(2). Schedule 3 includes the power of the Secretary of State to give directions for the removal of a person against whom a deportation order has been made. Paragraph 17 of Schedule 2, which is also applied to detention under paragraph 2(2) of Schedule 3, provides a power of arrest without warrant by a constable or by an immigration officer, and paragraph 18(3) contains power to take a person in the custody of a [*913] constable or any person acting under the authority of an immigration officer to or from any place where his attendance is required for the purpose of that sub-paragraph. It seems to me that the deeming provision which is similar to that contained in section 137(1) of the Mental Health Act 1983 and section 13(2) of the Prison Act 1952 is intended to make it clear that persons who may be required to convey or detain a person acting under the authority of the Secretary of State shall have the same protection and authority as is afforded to those acting directly under the provisions of the Act and, for example, will be entitled to use reasonable force to detain the person or prevent his escape.

Consequently I consider the legality of the detention which the applicant seeks to challenge falls to be determined in accordance with the requirements of the Act and the Regulations. If it does not comply with them, it is not to be saved by the deeming provision. I do not believe that it was the intention of Parliament by this sidewind to affect or vary the right of a person to apply for the writ of habeas corpus or the burden of proving that the detention was lawful.

NOLAN L.J. I deal first with the application for a writ of habeas corpus. The provision relied upon by the Secretary of State to justify the detention of the applicant is paragraph 2(2) of Schedule 3 to the Immigration Act 1971. The sub-paragraph provides:

“Where notice has been given to a person in accordance with regulations under section 18 of this Act of a decision to make a deporation order against him … he may be detained under the authority of the Secretary of State pending the making of the deportation order.”

If the sub-paragraph applies in the present case, the applicant must be deemed to be in legal custody by virtue of paragraph 18(4) of Schedule 2 to the Act read in conjunction with paragraph 2(4) of Schedule 3, and accordingly his application for a writ of habeas corpus must fail. Notice of a decision to make a deportation order against the applicant was given to him at the time when he was taken into custody on 17 January. The question raised by this appeal is whether the notice was given “in accordance with regulations under section 18 of this Act.” That section and those regulations include a requirement that the notice must “include a statement of the reasons for the decision or action to which it relates:” see section 18(1)(b) and regulation 4(1)(a) of the Immigration Appeals (Notices) Regulations 1984. The material part of the notice given to the applicant states simply:

“The Secretary of State has decided that your departure from the United Kingdom would be conducive to the public good for reasons of national security.”

The applicant contends that the statement does not constitute a statement of reasons for the purposes of the regulations, and that accordingly his detention in custody was unauthorised and unlawful. In the course of argument the contention as I understood it was broadened to include the proposition that the statement which I have quoted, even if in some sense a statement of reasons, was not a sufficient statement for the purposes of the regulations. On either footing the single, vital issue for this court to determine is the meaning of the words used by Parliament in section 18(1)(b) and regulation 4(1)(a). [*914]

The statutory path which leads to these provisions begins, so far as the present case is concerned, at sections 3(5)(b) of the Act which provides that a person who is not a British citizen shall be liable to deportation “if the Secretary of State deems his deportation to be conducive to the public good.”

The path proceeds by way of section 15(3). The provisions of this subsection are, to my mind, crucial. They provide:

“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 or of the relations between the United Kingdom and any other country or for other reasons of a political nature.”

It is not in dispute that this subsection governs the present case, and that in consequence the applicant has no right of appeal against the decision that he should be deported. Equally, it is not in dispute that the subsection distinguishes between the ground of the decision, namely that the deportation of the person concerned is (or is deemed to be) conducive to the public good and the reasons why his deportation is (or is deemed to be) conducive to the public good, the reason in this instance being the interest of national security.

Section 18 both authorises and foreshadows the requirements specified in regulations 3(1) and 4(1) of the Notices Regulations. So far as material, it provides:

“(1) The Secretary of State may by regulations provide – (a) for written notice to be given to a person of any such decision or action taken in respect of him as is appealable under this Part of this Act (whether or not he is on the facts of his case entitled to appeal) or would be so appealable but for the ground on which it is taken; (b) for any such notice to include a statement of the reasons for the decision or action … (2) For the purpose of any proceedings under this Part of this Act a statement included in a notice in pursuance of regulations under this section shall be conclusive of the person by whom and of the ground on which any decision or action was taken.”

The principal contention advanced on behalf of the applicant is that it is manifest from the language of section 18(1)(a), which is repeated in regulation 3(1), that the word “ground” as there used has the same meaning in the circumstances of the present case as “interests of national security;” it refers to what are described in section 15(3) as “reasons.” Therefore, it is said, the word “reasons” in section 18(1)(b) and regulation 4(1)(a) does not have the same meaning as in section 15(3). It must have some other and wider meaning.

In my judgment, the words used do not support this contention. Section 15(3) seems to me to make it clear that the right of appeal is lost if (a) the ground of the decision is that the deportation of the would-be appellant is conducive to the public good and (b) the reason given for his deportation being conducive to the public good is that it is in the interests of national security, or is one of the other two reasons mentioned in the subsection. It is an important distinction. It means that the rights of appeal in a case such as the present is not swept away simply by the broad brush of “interests of national security,” but by the [*915] decision of the Secretary of State personally that, in the circumstances of the particular case, those interests provide reasons for concluding that deportation would be conducive to the public good. To blur the distinction would still further attentuate the rights of the individual. The language of section 18(1)(a) might perhaps be criticised for failing to refer fully both to the non-appealable ground and to the reasons which make it non-appealable, but to my mind the criticism would be unjustified. The scope of section 18(1)(a) in the present case is clear to anyone who has read the other provisions of the Act. I do not see how the sub-paragraph can possibly be construed as conferring upon the word “reasons” in section 18(1)(b) and regulation 4(1)(a) some new and unspecified meaning, different from that which it bears in section 15(3). In short, as it seems to me, the reasons given by the Secretary of State for deciding that the deporation of the applicant would be conducive to the public good, albeit laconically expressed, are indisputably “reasons” both within the ordinary meaning of that word and within the meaning which it bears in each of the statutory provisions which I have quoted.

But are they sufficient reasons for the purposes of the Act and the Regulations? This question seems to me to raise a more substantial issue. In most contexts, and in particular in the context of a statute which affects the liberty of the individual, one would expect any statement of the reasons for arrest and detention to go further than a mere recitation of the statute and to include a reference to the fact upon which the reasons are based. In paragraph 8 of the Immigration Appeals (Procedure) Rules 1984 which were made pursuant to section 22 of the Act, one finds provision for precisely such an explanatory statement to be given. But this provision is limited to cases in which there is a right to appeal. Therefore it has no application to the present case. Nor can I find anything else in the Act or the Regulations which either expressly or by implication entitles the applicant to anything more than a bare statement of the statutory reasons relied upon by the Secretary of State. It is accepted that the notice of the Secretary of State’s decision given to the applicant on 17 January was sufficient to deprive him of the right to appeal against that decision, and of the concomitant right to an explanatory statement under paragraph 8. That being so, it can hardly be assumed that Parliament intended the applicant to be entitled to an explanatory statement for the purpose of pursuing some other remedy. The effect of the Act of 1971 was to abolish the statutory right of appeal which the applicant would have possessed under section 9 of the Immigration Appeals Act 1969 (which was repealed by section 54 of and Schedule 6 to the Act of 1971) and to replace it with the extra-statutory procedure which he has now pursued.

Does it follow that in all cases to which section 15(3) applies, and in which the Secretary of State exercises his power to detain pending deportation, the court must be satisfied, when habeas corpus proceedings are brought, with a reply consisting of a bare statement of reasons in the language of the subsection? The point was not argued before us, but the consequence is one which I currently would not accept. The Act of 1971 provides for no amplification of the reasons, but it cannot in my judgment be construed as excluding the power of inquiry conferred upon the court by section 3 of the Habeas Corpus Act 1816. Such a construction would be inconsistent with the general approach to ministerial statements adopted by the House of Lords in Conway v. Rimmer [1968] A.C. 910 and would also be inconsistent with the [*916] approach of the Divisional Court to the Act of 1971 in In re Shahid Iqbal [1979] Q.B. 264. What rules out further inquiry in the present case is the special character which the law accords to cases involving national security, coupled with the evidence given on behalf of the Secretary of State that, apart from the limited information disclosed to Simon Brown J. and repeated in the Home Office letter dated 30 January 1991, further details cannot be disclosed without unacceptable risk. Once that is said, and there is no evidence to the contrary, the practical result of paragraph 18(4) of Schedule 2 is that the Secretary of State, acting in good faith, is effectively protected not only from the risk of appeal, but from the risk of a writ of habeas corpus. If this case serves no other purpose, it will demonstrate the extent of the power thus conferred upon the Secretary of State by Parliament. I agree with Simon Brown J. that there is no arguable basis for the writ to be issued.

The Act does not, in terms at least, infringe to any extent upon the broad jurisdiction of judicial review. This jurisdiction plainly extends to the decision of the Secretary of State that the applicant should be deported and to his decision (which has not been specifically challenged) that the applicant should be detained in custody in the meantime. It would also extend to any decision adverse to the applicant which the Secretary of State might reach after receiving the recommendations of the extra-statutory panel. The application for judicial review as renewed before this court consisted largely of an attack upon the Home Office letter of 30 January 1991, and its reference to the applicant’s “known links with an organisation” which could “take terrorist action against unspecified Western targets.” These assertions were contrasted with the more specific allegations relied upon by the Secretary of State in Reg. v. Secretary of State for Home Affairs, Ex parte Hosenball [1977] 1 W.L.R. 766. It was argued that, even if habeas corpus did not lie, the court should not accept them as being sufficient as a matter of administrative law to justify the decision of the Secretary of State.

It seems to me, however, that, if we were to be asked to quash the decision of the Secretary of State on this basis by way of judicial review, it could only be on the grounds that the decision was irrational. That seems to me to be quite unarguable. It follows that I too would dismiss the renewed application for judicial review, as well as the appeal against the decision of Simon Brown J.

Appeal dismissed.

Application for leave to move for judicial review refused.

No order for costs.