In O3 v Secretary of State for the Home Department [2019] SN/147/2018, the Special Immigration Appeals Commission has confirmed that, just like regular immigration detainees, those facing deportation on national security grounds are entitled to a presumption of bail. In deciding whether to grant bail to such detainees, the Commission must balance that presumption with the national security risk assessment by the Security Service and decide if the Commission can impose conditions to address the risk.

Detained pending deportation as security risk

O3 is accused of being “ISIL-aligned” and faces deportation on national security grounds. He was detained and served with a deportation order in November 2017. This followed claims by the government that his computer and phones – seized by police during a search – contained a significant quantity of “extremist material”, including ISIL propaganda videos and iconography.

O3 has appealed the deportation order and his substantive hearing before the Commission is scheduled for June 2020. The bail application sought his release pending that hearing.

In its opposition to bail, the government assessed that O3 “aspired to engage in some form of attack-planning in the UK”. O3 claims to have innocent explanations for possession of the extremist material – i.e. he was conducting research for a book – and that he is neither a supporter of ISIL nor an Islamist extremist.

Immigration bail for alleged extremists: the legal framework

In cases involving deportations in the interest of national security, the Commission must have regard to the following matters in determining whether to grant bail:

1. the likelihood of the person failing to comply with the bail conditions;
2. whether the person has been convicted of an offence;
3. the likelihood of a person committing an offence while on immigration bail;
4. the likelihood of the person’s presence in the United Kingdom, while on immigration bail, causing a danger to public health or being a threat to the maintenance of public order;
5. whether the person’s detention is necessary in that person’s interests or for the protection of any other person; and
6. such other matters as the Secretary of State or the Commission thinks relevant.

The final provision (“such other matters…”) was said in the case of Z3 (SC/157/2018) to grant the Commission a broad discretion to give appropriate weight to any further factor it considers relevant. The risk an applicant poses to national security is an obvious relevant factor and one to which the Commission will give weight.

Presumption of bail

In 03, the Commission clarified that the starting point is that an applicant is entitled to bail, as acknowledged in the relevant Home Office policy and given the relevance of the right to liberty (i.e. Article 5 of the European Convention of Human Rights). The Commission must then balance that right with the risk an applicant poses to national security and decide whether it is such that even the imposition of the most stringent conditions would not satisfactorily address it.

Assessment of risk

The central question thus concerns the assessment of the alleged risk to national security. Confirming the approach developed in previous decisions, the Commission noted that its role was not to make an assessment itself about the risk. That is a matter for the substantive appeal. Instead, it will consider whether:

1. the risk assessment by the Security Service is sufficiently compelling to justify proceeding on the assumption that it is correct; and
2. the risk can be sensibly managed if he were to be released on bail subject to suitable (and if necessary onerous) conditions. 

In approaching the assessment of the Security Service, “Respect, but not undue respect,” should be afforded to its view.

Bail refused

In refusing the bail application, the Commission concluded that regardless of whether the material found was unlawful, it was “at least reasonably capable of suggesting to an objective third party that O3 holds Islamist extremist views”. Moreover, it was held to be legitimate for the government to point to O3’s history, which included an (unsuccessful) charge for possession of a knife in 2010 and driving without license and insurance in 2017, regardless of the innocent explanations proffered.

The Commission accepted the government’s risk assessment and its position that no conditions could be effectively imposed to manage it. It added that the closed judgment underscored the risk to national security and inability of bail conditions to address that risk.

Too much deference to the government case?

One cannot envy the task of the Commission and the importance of these decisions cannot be overstated. Indeed, between the hearing and the judgment in this case, Usman Khan stabbed two people to death on London Bridge while on licence from a 16-year sentence for terrorism offences.

Nevertheless, the open judgment of the Commission in this case does raise some questions.

First, rather than consider whether the government’s risk assessment was sufficiently compelling, it appears to lay the burden with the applicant. Can he advance a successful case such that the government’s assessment must be given limited weight? Arguably, this is a roundabout way of saying the assessment by the Security Services should be accepted unless it was “clearly wrong” (as held in XC and others and M1 but purportedly rejected by Lane J in 03).

Secondly, there was the failure to recognise the speculative nature of the government’s case. 03 has not been convicted for any of the behaviour relied upon by the government as indicative of his risk. Lane J found that the possession of this much extremist material, even if not inherently unlawful (i.e. lawful), remained “problematic”. But should the failure to even charge him for that possession – among the most commonly charged terrorism offences – not also be considered relevant?

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Similarly, while the applicant had been charged with possession of a knife, it was seven years before his detention and he was acquitted. This appeared to have no effect on the government’s entitlement, in the view of the Commission, to rely on it.

Thirdly, there was the failure to examine the difference between the accusation of holding extremist views and the assessment of a risk of conducting violent acts. The Commission found that O3’s possession of the extremist materials meant it was reasonable to find that he holds extremists views, despite his adamant denial. But there was no discussion of the rationale for finding that (secretly) holding extremist views translates into acting violently. How, without any evidence of expressions of violent intentions or a history of such acts, at least in the open parts of the proceedings, did the government form the view that 03 had violent aspirations?

It could be that the closed session revealed more incriminating evidence. But the Commission recognised that 03’s arguments may well succeed during the substantive appeal.