S2 v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing DBE |
| Judgment Date | 30 April 2018 |
| Neutral Citation | [2018] EWHC 993 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/123/2018 |
| Date | 30 April 2018 |
Neutral Citation Number: [2018] EWHC 993 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Elisabeth Laing DBE
Case No: CO/123/2018
Amanda Weston QC and Bijan Hoshi (instructed by Birnberg Peirce Ltd) for the Claimant
Robin Tam QC and Natasha Barnes (instructed by GLD) for the Defendant
Hearing dates: 12/04/2018
Introduction
The Claimant has an application for a review, and an appeal, pending in the Special Immigration Appeals Commission (‘SIAC’). In the application for a review, he challenges a decision made and notified by the Secretary of State on 19 May 2016 to exclude him from the United Kingdom. He appeals against the Secretary of State's decision made on 26 September 2017 to refuse his asylum claim. The Secretary of State refused that claim on the basis that the Claimant was excluded from the protection of the Refugee Convention (‘the Convention’). The Claimant also challenges, by this application for judicial review in the Administrative Court, the Defendant's decision (also made and notified on 26 September 2017) to revoke his indefinite leave to remain (‘ILR’).
A theme common to those three decisions is that the Secretary of State considers that the Claimant is a risk to national security. That view will be tested, to the greatest extent possible in public, and only to the extent that it is necessary, in closed, in the SIAC proceedings. Materially, on the application for a review of the exclusion decision, SIAC will apply the same principles as this court applies on an application for judicial review (see section 2C(3) of the Special Immigration Appeals Commission Act 1997 (‘the 1997 Act’)).
As the Secretary of State puts it in her summary grounds of defence, ‘The core issue in this claim is whether the Secretary of State has acted unlawfully in revoking the Claimant's [ILR] at this stage, on the basis that he poses a danger to the nationality security of the United Kingdom, when there is a pending appeal before SIAC which will address that question’. I should note that, to the extent that that sentence conveys the impression that the revocation decision was made during the pendency of an appeal to SIAC, it conveys a wrong impression. The appeal to SIAC was not pending when the decision was made. Ms Weston accepts in her skeleton argument that the Claimant's ILR was revoked on the grounds of national security (see paragraph 14). She also accepts (ibid) that SIAC has jurisdiction to ‘determine the underlying facts’; that is, the facts underlying the Secretary of State's view that the Claimant is a risk to national security.
This is my judgment on the Claimant's applications for permission to apply for judicial review of the decision revoking the Claimant's ILR, and for interim relief. The interim relief he seeks is an order, in effect, to restore his ILR, pending a decision on his application for judicial review, or further order. The Claimant was represented by Ms Weston QC and by Mr Hoshi and the Defendant by Mr Tam QC and Ms Barnes. I thank counsel for their helpful written and oral arguments. I am grateful to both leading counsel for the patient and helpful way they answered my questions, and to both legal teams for their careful preparations for the hearing.
Ms Weston's essential point is that the Claimant has no statutory right of appeal or of review against the revocation decision. His only remedy is an application for judicial review. It follows that SIAC can grant no remedy in respect of the revocation decision. She is not in a position to challenge the Secretary of State's national security case, of which there has only been limited and recent disclosure, but it will be fully tested in the SIAC proceedings. If the Secretary of State's national security case does not survive that test, that will mean that the revocation of the Claimant's ILR was not justified, and he should be entitled to an order quashing that revocation. His right to challenge the revocation decision, and to obtain its quashing, should be preserved pending SIAC's decision on the national security case, and his position should be protected in the meantime by the interim relief she seeks. Although she did not make this point earlier in the proceedings, she submitted orally that whatever decision the court made on the applications for judicial review and for interim relief, it should stay the application for judicial review pending the determination of the proceedings in SIAC.
The facts
It is not necessary to say much about the facts. The Claimant was born on 3 March 1982 in Iraq. He entered the United Kingdom and claimed asylum. That claim was refused, but he was granted discretionary leave to remain. On 17 July 2008 he was granted ILR. He left the United Kingdom on around 22 April 2016. On 20 May 2016, the Secretary of State decided to cancel the Claimant's ILR and to exclude him from the United Kingdom. He arrived at Gatwick Airport on 5 June 2016 and was detained under immigration powers.
On 7 June 2016 he wrote a letter saying that he wished to claim asylum. On 9 June 2016 he filed a notice of review of the exclusion decision in SIAC. He was granted immigration bail on 23 June 2016. On 5 August 2016 he filed an application for judicial review of the decision to cancel his ILR.
On 6 September 2016 Flaux J (as he then was) heard an application for permission to apply for judicial review of the cancellation decision and for interim relief. He granted permission to apply for judicial review, and interim relief. I have not seen a record of the reasons for his decision, but it seems, from what counsel told me, that there was a strong argument that the decision to cancel the Claimant's ILR, which was purportedly made under article 13(7) of the Immigration (Leave to Enter and Remain) Order 2000, was ultra vires. The relief which Flaux J granted, having considered two potential variants in drafts submitted by the parties, was (by paragraph 2) an order that ‘Any effect’ of the cancellation decision ‘is stayed’ until the determination of the application for judicial review or further order. However, paragraph 3 provided, ‘For the avoidance of doubt’ that the consequence of paragraph 2 was that ‘the Claimant remains, in the interim, the holder of indefinite leave to remain and thus the conditions imposed on the Claimant…until the determination of the Claimant's claim for judicial review or further order, do not apply’. The order provided for a swift hearing of the application for judicial review, no later than 4 November 2016.
The Claimant made further submissions on 22 September 2016. On 28 September the Secretary of State withdrew her decision to cancel the Claimant's ILR. The effect of that decision was that the Claimant's ILR continued. The application for judicial review was later settled by a consent order dated 4 April 2017.
On 16 June 2017, the Secretary of State wrote to the Claimant. She told him that ‘…Your actions mean that your deportation is considered to be conducive to the public good for reasons of national security and as such you are liable to deportation by virtue of section 3(5)(a) of the Immigration Act 1971’ (‘the 1971 Act’). She also said that she was considering his asylum claim and was minded to conclude that he was excluded from the protection of the Convention because there were serious reasons for considering that he had been guilty of committing acts contrary to the purposes and principles of the United Nations, and because he was a danger to the national security of the United Kingdom. She further said that she was minded to conclude that he was excluded from humanitarian protection but that she was likely to conclude that he could not be deported ‘at the present time’ because it would result in a breach of his rights conferred by article 3 at the Europe Convention on Human Rights. In the light of the article 3 barrier to his deportation, she was also considering whether to revoke his ILR. She considered that his ‘conduct’ after getting ILR, was ‘so serious that it would warrant the revocation of your ILR if the section 76(1) conditions were satisfied’. If his ILR were revoked, it would be replaced by a limited period of leave which could, as necessary, be renewed for as long as legal reasons prevented his deportation from the United Kingdom.
On 11 August 2017, the Claimant made further representations why his ILR should not be revoked. Those included a report from Dr Deeley, which I will say more about in due course.
On 26 September 2017, the Secretary of State wrote to the Claimant. She told him that she had decided to revoke his ILR under section 76 of the Nationality Immigration and Asylum Act 2002 (‘the 2002 Act’), and that she had refused his claim for asylum on the grounds that Articles 1F and 33 of the Convention applied and he was excluded from the protection of the Convention. He was similarly excluded from humanitarian protection. She granted him six months' restricted leave to remain. Several conditions were attached to that: a residence condition, a monthly reporting condition, a condition preventing recourse to public funds, and conditions requiring him to get the Secretary of State's consent for various activities. He would have to re-apply for leave before any period of leave expired. He is, I was told, with the consent of the Secretary of State, now running a mobile phone shop as a self-employed person.
On 11 October 2017 the Claimant filed a notice of appeal with SIAC against the decision refusing his asylum claim. Some time later, on 22 December 2017, he filed an application for judicial review of the decision revoking his ILR.
The...
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