R v Home Secretary ex parte Cheblak, [1991] 1 WLR 890, EWCA,2 All ER 319
Citation:R v Home Secretary ex parte Cheblak, [1991] 1 WLR 890, EWCA,2 All ER 319
Rule of thumb:What happens if a person from the Home Office with the reason being given as a ‘national security’ threat? This is treated differently from ordinary immigrations cases and special & exceptional rules apply to both the procedures & the behaviour threshold for deportation.
Judgment:
The basic facts of this case were that Cheblak was a first nationality Iraqi citizen who immigrated to the UK. Cheblak had children who were British citizens. Cheblak was well recognised in academic circles as an expert on middle eastern affairs. Cheblak had spent a lot of time in the middle east and had links with many organisations in the middle east. Cheblak had written a dissertation about middle eastern affairs which had never been published. Tensions broke out between Iraq and the UK and its allies. Cheblak was deemed by MI5/MI6 to be a terrorist threat to the UK and was ordered to be deported. Cheblak sought judicial review of this on 2 grounds – a standard judicial review, and a habeus corpus writ. The Court held that the capeus corpus writ had not been violated as the processes when it comes to dealing with national security were very different from normal processes. The Court also held that the judicial review of a decision had to be refused because (i) the methods, workings and knowledge of MI5 and MI6 had to be kept secret and was not suitable for trial, and, (ii) the validity of a decision in this regard by MI5 and MI6 could only realistically be challenged if there was clear evidence of foul play/ bad faith by MI5 or MI6 – MI5 and MI6 were given significant discretion and trust in dealing with national security and terrorist crime, ‘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 or the subject matter. National security is the exclusive responsibility of the executive’, Lord Donaldson
Ratio-decidendi:
‘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... 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 or the subject matter. National security is the exclusive responsibility of the executive.’ Lord Donaldson
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.