E1/(Os Russia) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Moses,Lord Justice Pill |
| Judgment Date | 22 March 2012 |
| Neutral Citation | [2012] EWCA Civ 357 |
| Docket Number | Case No: T3/2011/1268 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 March 2012 |
[2012] EWCA Civ 357
Lord Justice Pill
Lord Justice Moses
and
Lord Justice Sullivan
Case No: T3/2011/1268
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE ADMINISTRATIVE COURT, MITTING J
CO/2937/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Southey QC and Edward Grieves (instructed by Wilson Solicitors LLP) for the Appellant
Jonathan Swift QC, Jonathan Glasson and Robert Wastell (instructed by the Treasury Solicitor) for the Respondent
Hearing dates: 28 th February and 1 st March 2012
Introduction
This is an appeal against the Order dated 31 st March 2011 of Mitting J dismissing the Appellant's claim for judicial review of the notice of the Respondent's decision to cancel his Indefinite Leave to Remain (ILR) in the United Kingdom, dated 28 th May 2010.
Factual Background
The Appellant is a Russian national who was born in Chechnya on 17 th April 1966. On 30 th July 2002 he was granted asylum and ILR. His wife and their four children were granted ILR on 31 st January 2003. They have since had two more children, both born in the UK. In April 2007 the Appellant, his wife and children applied for naturalisation. On 30 th October 2009 his wife and four eldest children, but not the Appellant, were granted British Citizenship.
On 26 th February 2003, a ten year Refugee Convention travel document, endorsed for all countries except Russia, was issued to the Appellant. In 2008 and 2009 the Appellant travelled extensively outside the UK. He last left the UK in November 2009.
On 11 th May 2010 the Respondent personally directed that the Appellant should be excluded from the UK on the grounds that his presence here was not conducive to the public good based on the threat that he was assessed to present to national security. On the basis of that decision the Respondent also decided that the Appellant was no longer recognised as a refugee, and his ILR was cancelled.
The Appellant was given notice of these decisions by a letter dated 28 th May 2010 ("the Notice"). The Notice told the Appellant that:
"There is no statutory right of appeal against the Secretary of State's decision to exclude you from the United Kingdom (the decision is reviewed every 3 to 5 years). However, there is an out-of-country right of appeal against the decision to cancel your indefinite leave to remain.
Your are entitled to appeal against the decision to cancel your leave to remain under the Special Immigration Appeals Commission Act 1997. This is because the decision to cancel your leave to remain has been certified under section 97(3) of the 2002 Act as a decision made in accordance with a direction of the Secretary of State and which was given wholly or partly on the following grounds:
(a) in the interest of national security, or
(b) in the interests of the relationship between the United Kingdom and another country.
You may only appeal this decision from outside the United Kingdom. For the purposes of the appeal the cancellation of your leave will be treated as a decision to vary your leave to remain in the United Kingdom, which when the variation took effect, meant that you had no leave to remain. I enclose a notice of appeal to the Special Immigration Appeals Commission (SIAC) and guidance notes for completion of the appeal form." (emphasis added)
The Notice set out the grounds on which the Appellant was entitled to appeal, told him that he had 28 days from receipt of the letter to complete and return the enclosed Notice of Appeal to the Special Immigration Appeals Commission ("SIAC"), and concluded:
"The United Nations Convention travel document, number C00104277, issued to your on 25 th February 2003, is no longer valid for travel. You should not seek to travel to the United Kingdom as you will be refused admission." (emphasis added)
The Notice was served on 1 st June 2010. The Appellant did not return to the UK. A Notice of Appeal was filed with SIAC on 21 st June 2010. At a directions hearing on 1 st July 2010 the hearing of his appeal was fixed for the week commencing 28 th March 2011. On the 1 st September 2010 the Respondent's First Open Statement was served. It merely said that the Security Services assessed that the Appellant:
"should be excluded from the UK as his presence in the UK would be non-conducive to the public good for reasons of national security."
On 3 rd November 2010 the Appellant's witness statement, which was largely a repetition of his asylum claim in 2002, was filed with SIAC. On 21 st January 2011, the Respondent's Second Open Statement was served. This statement revealed, for the first time, the substance of the case against the Appellant: that he had worked as an advisor to the President of Chechnya, Ramzan Kadyrov, and had "played a significant role in the assassination of [a Chechnyan exile called] Israilov in Austria on behalf of Kadyrov."
Following a Rule 38 hearing on 1 st March 2011, an Amended Second Open Statement was served by the Respondent on 10 th March 2011. This revealed that it was the Security Service's assessment that Kadyrov, who had been responsible for the assassination of a number of his opponents, had a black list of individuals, some of whom he wished to have assassinated, and that the exiled Prime Minister of Chechnya, Ahkmed Zakayev, a refugee living in the UK, was believed to be on the list. The Security Service assessed that Kadyrov was likely to seek to target Zakayev, and that should he seek to do so in the UK "it would be likely to be facilitated through [the Appellant] who would be well placed to provide valuable information." Therefore the Appellant posed a serious threat to Zakayev's life.
On 17 th March 2011 the Appellant instructed new solicitors, Wilson Solicitors LLP ("Wilsons"). On the same day Wilsons requested an adjournment which was refused by Mitting J on that day, on paper. A renewed oral application for an adjournment made on 23 rd March 2011 was refused.
On 25 th March 2011 this Court gave judgment in Secretary of State for the Home Department v MK (Tunisia) [2011] EWCA Civ 333 (" MK"). The Court upheld the judgment of Collins J dated 26 th August 2010, reported at [2010] EWHC 2363 (Admin). It is unnecessary to set out the details of MK because it is common ground in this appeal, and was common ground before Mitting J, that the effect of that decision is that a person in the position of this Appellant, who was abroad when given notice of the Respondent's decision to cancel his ILR, has his leave to enter the UK extended by section 3D of the Immigration Act 1971 for the period during which he could appeal while in the UK. In this case that period was a period of 10 days from service of the Notice: see rule 8(1)(b)(i) of The Special Immigration Appeals Commission (Procedure) Rules 2003 ("the 2003 Rules") (paragraph 18 below). During that period he may return to the UK and make an in-country appeal: see paragraphs 26–29 of the judgment of Pill LJ. If he makes an in-country appeal within the period of 10 days, then his leave to remain in the UK is extended until his appeal has been determined. If a person in the Appellant's position chooses to remain outside the UK, he has 28 days in which to appeal, but his appeal must then be pursued from outside the UK.
On 29 th March 2011 Wilsons wrote to SIAC contending that MK applied to the Appellant, that he was "under a significant disadvantage by being out of the country in presenting his SIAC appeal", and renewing their application for an adjournment. The hearing of the Appellant's appeal before SIAC began on the following day, 30 th March 2011. At the outset of the hearing Mr. Grieves submitted that MK applied to the Appellant, that he was entitled to enter the UK to conduct his appeal, and that the appeal should be adjourned to enable the necessary arrangements to be made. He told Mitting J that grounds for Judicial Review would be lodged on the following day, 31 st March 2011.
Mitting J decided, with the agreement of all parties, to sit as a judge in the Administrative Court to hear the application for permission to apply for Judicial Review at 2 pm on 31 st March 2011. Mr. Underwood QC, the Special Advocate, made an application to postpone cross-examination of the Security Service witness until there had been a ruling on the MK issue. That application was refused and the Special Advocate's cross-examination of the Security Service witness began on the afternoon of 30 th March 2011.
On the morning of Thursday 31 st March a Claim Form seeking the quashing of (inter alia) the decision dated 25 th May 2010, which was described in Section 3 of the Claim Form as "Notice of cancellation of indefinite leave to remain", was filed at the Administrative Court. On that day the hearing of the application for permission to apply for Judicial Review took place before Mitting J who granted permission to apply for Judicial Review but dismissed the claim (see below). The hearing before SIAC continued on 5 th April 2011. SIAC dismissed the Appellant's appeal in an Open Judgment dated 20 th April 2011.
The statutory framework
Section 105(1) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") gives the Respondent power to make regulations "requiring a person to be given written notice where an immigration decision is taken in respect of him." Subsection 105(2) provides that:
"(2) The regulations may, in particular, provide that a notice under subsection (1) of a decision against which the person is entitled to appeal under section 82(1) must state –
(a) that there is a right of appeal under that section, and
(b) how and when that right may be exercised."
Regulation 4 of The Immigration (Notices) Regulations 2003 ("the...
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