Once the Home Secretary concludes that a refugee is a danger to national security she is entitled to revoke his refugee status. She does not have to go on to consider whether there are less intrusive measures that could be applied. The Home Secretary’s national security decision can only be challenged by judicial review.
This is the decision of the Court of Appeal in D8 v Secretary of State for the Home Department [2025] EWCA Civ 33 overturning the decision of the Special Immigration Appeals Commission (SIAC) in D8 v Secretary of State for the Home Department [2023] UKSIAC 1. Free Movement’s write up of that SIAC decision is here.
Background
D8 is an Iranian national of Kurdish ethnicity. He left Iran in 2016 and entered the UK, where he was refused asylum but granted in 2017 on appeal. The tribunal found that D8’s posting of anti-Iranian material on social media and attendance at pro-Kurdish rallies were “opportunistic” but nevertheless concluded that he was at risk in Iran due to the “hair-trigger” approach of the authorities towards any dissent. D8 was granted a refugee travel document valid to 2022.
In February 2020 D8 travelled to the Kurdish region of Iraq. What he did there was in dispute before SIAC, addressed in CLOSED material. It was accepted that he was in Iran between March and May 2020, but it was not accepted that he had returned there openly, such that he could be said to have re-availed himself of Iran’s protection. Doing so would have been another basis for removing his refugee status.
In April 2020 the Secretary of State directly personally that D8 be excluded from the UK on the basis his presence was not conducive to the public good for reasons of national security, due to his Islamist mindset and support for Islamic State. D8’s refugee status was revoked in October 2020, while he was still outside the UK.
In March 2021 D8 returned to the UK, entering by small boat, and was detained. He again claimed asylum and was refused in July 2022.
D8 appealed the revocation of his refugee status and refusal of his application for asylum. As both decisions were taken on national security grounds the appeal was to SIAC rather than to the immigration tribunal.
SIAC agreed with submissions for D8 that the Home Secretary had to apply a two-stage test. It was not enough to decide rationally that D8 was a danger to national security. The Home Secretary then had to go on to balance that danger against the cost, practicability and feasibility of less intrusive measures than revocation. SIAC relied particularly on the decision of the Court of Justice of the European Union (CJEU) in T v Land Baden-Wurttemberg [2016] 1 WLR 109.
The judgment
The Court of Appeal decided that there is no two-stage test. Once the Home Secretary has concluded rationally that a refugee is a danger to national security, refugee status can be revoked. There is no further balancing exercise.
The court underlined the constitutional importance of allowing the Home Secretary to take the decision that an individual is a danger to national security as she has the best information available and is democratically accountable for the decision. The court noted that the Special Advocates for D8, who had access to the CLOSED material, had not challenged the rationality of the Home Secretary’s conclusion that D8 was a danger to national security.
The Court of Appeal found no basis for a two-stage test in the wording of the Refugee Convention, Qualification Directive or Immigration Rules. The Refugee Convention does not actually mention revocation of status. Article 33 of the Refugee Convention recognises that refoulement of a refugee is a drastic measure but allows it in the limited circumstances at Article 33(2), including where a refugee is a danger to the security of the country. The Refugee Convention sets out no further balancing exercise.
Wording relating to “revocation” rather than refoulement is introduced in the European Union’s Qualification Directive at Articles 14 and 21(3) permitting revocation of a refugee’s status and residence card in the limited circumstances allowed for at Article 33(2) of the Refugee Convention. Again, the Court of Appeal found nothing in the wording of the Qualification Directive supporting a balancing exercise.
The Qualification Directive is implemented into UK law through the immigration rules. Slightly different versions of the rules applied to the October 2020 and July 2022 decisions that D8 was appealing, but neither version contained wording supporting the two-stage test.
The Court of Appeal also gave weight to the fact that section 34(1)(b) of the Anti-terrorism, Crime and Security Act 2001 prohibits balancing the danger to national security against the possible consequences to a refugee if returned to his own country, finding that this shows Parliament’s intention that Article 33 of the Refugee Convention and the European Union and domestic law provisions implementing Article 33 should not be subject to any further gloss.
The Court of Appeal was also persuaded to its conclusion by the practical difficulties of attempting to implement the proposed two-stage test, describing this as an “artificial exercise.”
The Court of Appeal found that “a strong justification” would be needed for imposing a second step when the language of the legal provisions did not clearly require it.
The Court of Appeal looked at whether “strong justification” for a two-stage test might come from UNHCR Guidance. The Court of Appeal examined two sets of UNHCR Guidance that had been considered by SIAC, but decided that these went beyond guidance into introducing new provisions that are not present in the Refugee Convention itself. As the UNHCR Guidance went beyond assistance with interpretation the Court of Appeal decided it should reject it.
The Court of Appeal noted there was no need for the further gloss in the UNHCR Guidance because refoulement is always subject to a state’s other international obligations, such as the European Convention on Human Rights or the Torture Convention. In D8’s case all parties agreed that he could not actually be refouled to Iran due to these separate obligations and will need to be granted some form of status in the UK.
The Court then considered whether “strong justification” for the two-stage test could be found in the judgment in T. The Court found that SIAC had fallen into error when considering paragraph [71] of T where the CJEU commented that refoulement is the “last resort a member state may use.” The Court of Appeal found that SIAC had gone too far in reading this as meaning that the CJEU regarded refoulement as prohibited, even where the refugee is a danger to national security, unless the host country can demonstrate that no lesser measure would be sufficient.
In light of the above findings, the Court of Appeal found that there was no authority for the imposition of a two-stage test, overturning SIAC.
The Court of Appeal rejected several other arguments made on behalf of the Home Secretary.
The Home Secretary sought to argue that T was not relevant at all, as that case was concerned with refoulement but D8’s case involves revocation of refugee status and refusal of asylum. The Court of Appeal rejected this on the basis that the relevant provisions are expressed in similar wording, and there is no basis for applying different standards.
The Home Secretary also sought to argue that T was not retained EU law, on the basis that it was negated by a provision in the Immigration and Social Security Coordination (EU Withdrawal) Act 2020. The Court of Appeal rejected that submission, finding that the negating provision applies to directly applicable EU law, but the Qualification Directive was not directly applicable, instead being implemented through the immigration rules.
Comment
The decision confirms a single-stage test. Unless the Home Secretary’s national security decision can itself be challenged, refugee status can be revoked without a further balancing exercise.
It is unclear whether D8 will seek to appeal to the Supreme Court.
The discussion on retained EU law is well worth reading and likely to be of wider interest to practitioners grappling with refugee law in the post-Brexit landscape. Note that while the Home Secretary and D8 both accepted that the relevant provisions of the immigration rules were retained EU law via the process summarised by Lord Justice Males at [72]-[87], Lady Justice Elisabeth Laing raises a question at [91] as to whether that analysis is correct. This issue did not have to be decided in this case but will certainly be examined in future cases. We can expect to have to dust off older cases on the status of the immigration rules.
The caseworker guidance “Revocation of Protection Status” has been updated to a new version 2.0 as of 24th January 2025, removing requirements to consult with UNHCR prior to revocation, although these changes appear to have been in the pipeline before the Court of Appeal decision in D8.
Interested in refugee law? You might like Colin’s book, imaginatively called “Refugee Law” and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.
