The King (on the application of M) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 19 May 2023 |
| Neutral Citation | [2023] EWHC 1156 (Admin) |
| Docket Number | Case No: CO/455/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2023] EWHC 1156 (Admin)
Mr Justice Lane
Case No: CO/455/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr H Southey KC, Mr Z Jafferji (instructed by Duncan Lewis Solicitors) for the Claimant
Mr R Tam KC (instructed by the Government Legal Department) for the Defendant
Hearing date: 27 April 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
DECISION FOLLOWING DIRECTIONS HEARING
The claimant challenges, by way of judicial review, the decision of the defendant on 27 November 2018 to cancel his indefinite leave to remain in the United Kingdom. The claimant also seeks to challenge what he categorises as a decision of the defendant on 11 November 2021 to refuse to reinstate the claimant's indefinite leave to remain.
Permission for judicial review was granted by Mostyn J, on the papers, on 16 March 2022, when he also extended time to challenge the decision of 26 November 2018. Mostyn J specified that the case should be returned to him, if the parties were unable to agree directions for the progress of the judicial review. In the event, given that Mostyn J was unavailable, the matter came before Bourne J on 6 February 2023. Bourne J ordered that the matter should be listed for a directions hearing. In so doing, he referred to the need to decide whether the court should proceed with open issues; or whether it should give directions for both open and closed submissions.
In brief summary, the claimant is a citizen of Iraq. He was granted indefinite leave to remain under a legacy exercise on 23 March 2011.
On 26 November 2018, whilst the claimant was outside the United Kingdom, the defendant directed that the Claimant be excluded from the UK and cancelled his leave to remain. The exclusion direction was certified under section 2C of the Special Immigration Appeals Commission Act 1997.
The claimant subsequently attempted to return to the United Kingdom on a number of occasions. Eventually, he arrived clandestinely on 29 July 2020, claiming asylum in a false identity.
On 11 February 2021, the defendant made a decision to deport the claimant to Iraq. On 22 April 2021, the defendant made a decision that Article 33(2) of the Refugee Convention applied to the claimant because there were “reasonable grounds” for believing the claimant to be “a danger to the national security of the country”.
On 6 May 2021, the claimant lodged an appeal against the decision to exclude him from the Refugee Convention. The appeal was made to the Special Immigration Appeals Commission (“SIAC”).
On 28 October 2021, the Government Legal Department wrote to the solicitors acting for the claimant to say that, following a review of the claimant's case, the defendant now intended to grant the claimant asylum and leave.
On 11 November 2021, the claimant's solicitors were informed that the defendant would not withdraw her decision of 22 April 2021, on the basis that the decision was correct at the time it was issued.
On 17 November 2021, the defendant granted the claimant asylum and five years' leave to remain in the United Kingdom.
On 19 January 2022, SIAC approved a consent order which had been agreed by the parties. Under that order, the claimant withdrew his asylum appeal on the basis, that, amongst other things, it would not prejudice any right he might have to challenge the decision of the defendant to grant the claimant five years' leave to remain.
The parties have been unable at this stage to agree on a proposed set of directions regarding the progress of the case. At the hearing on 27 April 2023, I was much assisted by the written and oral submissions of Mr Tam KC and Mr Southey KC. I am grateful to them for these.
The nature of the present disagreement can be described broadly as follows. From what I have already said, it is apparent that this case involves matters of national security and that the defendant is, consequently, in possession (or otherwise aware of) material which she is likely to submit it would be contrary to the public interest to disclose to the claimant.
The defendant contends, however, that it is possible to identify preliminary issues which, if determined in the defendant's favour, would be dispositive of the judicial review. Mr Tam KC submits that, accordingly, the court can and should adjudicate upon those preliminary issues on an entirely OPEN basis. By proceeding in this way, the defendant submits that there is a realistic possibility that the proceedings can be concluded without the need to invoke the procedure sanctioned by the Justice and Security Act 2013. To invoke that procedure when, as the defendant contends, it would be possible to determine the judicial review purely on the basis of the OPEN materials would needlessly expend considerable time and, more particularly, a great deal of public money.
To that end, the defendant filed a set of draft directions. The draft attempts to identify the relevant preliminary issues as follows:-
“The issues of:
(a) Whether on 26 or 27 November 2018 the Defendant had material properly justifying her direction that the Claimant be excluded from the United Kingdom or her decision cancelling the Claimant's indefinite leave to remain;
(b) Whether on 11 November 2021 the Defendant had material that undermined the evidence or material that she had on 26 or 27 November 2018;
(c) Whether the Court should make a declaration under section 6 of the Justice and Security Act 2013 permitting a closed material application to be made to the Court;
are stayed pending the determination of the legal issues raised by the Claimant and the Defendant that can be heard and determined by the Court in OPEN proceedings without the resolution of the issues set out at I(a) and (b) above (“the OPEN-only issues”)
2. The OPEN-only issues relating to the cancellation decision include (but are not necessarily limited to) the following, namely:
(a) In the light of the existence at that time of an extant exclusion direction, which had been given on the basis of the material then before the Defendant, and which was the basis for the cancellation decision, whether the cancellation decision itself can be impugned by a challenge to the adequacy of that material;
(b) Whether the cancellation decision can be impugned by a challenge to the adequacy of that material when the exclusion direction is not challenged and is not challengeable in the present proceedings;
(c) Whether any challenge to the adequacy of that material should have been brought by an application to the Special Immigration Appeals Commission for a review of the exclusion direction pursuant to section 2C of the SIAC Act 1997;
(d) Whether the challenge to the cancellation decision should be dismissed or whether any remedy should be withheld because of the Claimant's failure to avail himself...
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