J1, R (on the application of) v Special Immigration Appeals Commission & Anor, Court of Appeal - Administrative Court, November 23, 2018, [2018] EWHC 3193 (Admin)

Resolution Date:November 23, 2018
Issuing Organization:Administrative Court
Actores:J1, R (on the application of) v Special Immigration Appeals Commission & Anor
 
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Case No: CO/499/2018

Neutral Citation Number: [2018] EWHC 3193 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 23 November 2018

Before :

THE HONOURABLE MR JUSTICE SUPPERSTONE

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Between :

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Stephanie Harrison QC and Anthony Vaughan

(instructed by Birnberg Peirce) for the Claimant

The Defendant did not appear and was not represented

Robin Tam QC and Rosemary Davidson

(instructed by Government Legal Dept.) for the Interested Party

Hearing dates: 3 and 30 October 2018

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JudgmentMr Justice Supperstone :

Introduction

  1. The Claimant, J1, challenges an order dated 27 November 2017 giving effect to a decision of the Special Immigration Appeals Commission (Sir Stephen Silber, Upper Tribunal Judge Pitt and Sir Andrew Ridgway) (``SIAC'') made on 22 November 2017, by which SIAC partially dismissed the Claimant's disclosure application dated 11 August 2017. The disclosure decision was made in the context of a statutory appeal against the revocation of the Claimant's indefinite leave to remain (``ILR''). The Claimant's ILR was revoked on the basis that he is liable to deportation but cannot be removed from the United Kingdom for legal reasons.

  2. The issues in this claim relate to the correct interpretation of sections 85(4) and 76(1) of the Nationality, Immigration and Asylum Act 2002 (``the 2002 Act''), and whether the revocation of the Claimant's ILR engaged Article 8 of the European Convention on Human Rights (``ECHR''):

    i) In an appeal against the revocation of ILR under section 76 of the 2002 Act, to what extent does s.85(4) of the 2002 Act permit SIAC to admit post-decision evidence (Ground 1).

    ii) Whether there are any implied limits on the power to revoke ILR under s.76 of the 2002 Act, requiring there to be some prospect of deportation being achieved in the future (Ground 2).

    iii) Whether the revocation of the Claimant's ILR engaged Article 8 ECHR (Ground 3).

  3. On 27 June 2018 Foskett J granted permission in respect of Grounds 1 and 3, and directed that permission with respect to Ground 2 be considered on a ``rolled-up'' basis by the judge hearing the substantive judicial review application.

  4. Ms Stephanie Harrison QC and Mr Anthony Vaughan appear on behalf of the Claimant, and Mr Robin Tam QC and Ms Rosemary Davidson appear on behalf of the Secretary of State, as they did before SIAC.

    Factual background

  5. The factual background to this claim is set out in the judgment of Sir Stephen Silber at paragraphs 2-9:

    ``2. The Appellant is an Ethiopian national, who came to the United Kingdom with his family in 1990. In 2010, the Secretary of State came to the conclusion that the deportation of the Appellant from the United Kingdom would be conducive to the public good for reasons of national security. So on 25 September 2010, the Secretary of State notified the Appellant of her decision to make an order that he be deported to Ethiopia.

  6. The Appellant appealed and on 15 April 2011 this Commission decided that the Appellant's deportation from the United Kingdom was conducive to the public good on national security grounds. In a separate determination made on 7 July 2011, this Commission decided that the Appellant's deportation would not breach his rights under Article 3 ECHR.

  7. On 27 March 2013, the Court of Appeal allowed the Appellant's appeal against the decision to deport him on the ground that although there was no doubt that the Secretary of State was entitled to conclude that the Appellant's deportation was conducive to the public good on national security grounds, there was a real risk that his deportation to Ethiopia would infringe his rights under Article 3 ECHR. On that ground alone, SIAC's decision was reversed, but Jackson LJ (with whom Elias an Treacy LJJ agreed) explained at paragraph 94 that:

    `I have no doubt that the Secretary of State was entitled to conclude that the appellant's deportation was conducive to the public interest on national security grounds'.

  8. On 1 July 2014, after the Secretary of State made a second decision to deport the Appellant, but just before the hearing of the Appellant's appeal against the decision, the Secretary of State withdrew the notice of intention to deport the Appellant.

  9. On the same day, the Secretary of State also revoked the Appellant's ILR pursuant to the powers conferred in section 76(1) of the Nationality, Immigration and Asylum Act 2002 (`the 2002 Act'), .... The present proceedings relate to the Appellant's appeal against that decision to revoke ILR. There was a grant of restricted leave to the Appellant on 1 July 2014 which was subsequently withdrawn and a further grant of restricted leave on 4 September 2014 was subsequently quashed. In the circumstances, the Appellant's ILR has been extended until the hearing of his appeal against the revocation of his ILR by reason of the provisions of section 3 D (2) of the Immigration Act 1971, ...

  10. The national security issues have been refined and the present position is that:

    (a) the basis of the Secretary of State's conclusion on 1 July 2014 that it was conducive to the public good to deport the Appellant was the national security decision of SIAC dated 15 April 2011 as explained in Georgina Balmforth's witness statement of 19 June 2017;

    (b) for the purposes of this litigation, but for no other purpose, the Secretary of State accepts that the Appellant poses no current threat to national security;

    (c) for the purposes of this litigation, but for no other purpose, the Secretary of State is content for SIAC in determining these proceedings to proceed on the basis that there is no positive intelligence case that the Appellant posed a threat following the handing down of SIAC's national security judgment on 15 April 2011 and to which reference has been made in paragraph 3 above; and that

    (d) the Secretary of State accepts that no conduct of the Appellant subsequent to 15 April 2011 is relied on by her on this appeal.

  11. Orders for disclosure have been made and on 27 July 2017, the Secretary of State was ordered to file with the Commission `exculpatory material of which she was aware' by 4pm on 3 October 2017. She failed to do so and just before the hearing in front of us, the Secretary of State sought a variation of that Order relating to the nature of the exculpatory material for which she was obliged to search for and disclose. This was the subject of discussion at the hearing on 18 October 2017 and in consequence, the Secretary of State served a revised proposed variation on 23 October 2017 which stated that

    `1A. For the purposes of paragraph 1 of [the Order of 27 July 2017], the ``exculpatory material'' which the Secretary of State is obliged to search for and disclose is limited by the following: -

    (a) The Secretary of State's case in this revocation appeal is that on 1 July 2014 it remained conducive to the public good to deport the Appellant to Ethiopia. That case is based on the Commission's determination on 15 April 2011 of the issue of national security in J1's first deportation appeal and the matters then considered by the Commission. For the purposes of that case, the Secretary of State does not rely on any conduct by J1 subsequent to the Commission's 15 April 2011 determination. Further, for the purposes of that case the Secretary of State does not assert in these proceedings that after that date J1 has posed (or currently poses) any threat to national security (as set out in the Government Legal Department's letters of 30 August 2017 and 16 October 2017).

    (b) Accordingly, the ``exculpatory material'' is material which adversely affects the Secretary of State's case as set out above, namely material which could undermine the national security findings in the Commission's 15 April 2011 determination.

    (c) A full exculpatory process having been carried out in relation to the issue of national security before the Commission's determination of 15 April 2011, the Secretary of State is not obliged to search again for, or to (re-)disclose, any material pre-dating the Commission's decision of 15 April 2011.

    (d) A full exculpatory process having been carried out in relation to the issue of national security for purposes of J1's second deportation appeal which had been due to be heard in July 2014, the exculpatory material relating to that issue having been served in the disclosure process leading up to that intended hearing, and the Secretary of State having re-served that exculpatory material on 2 October 2017 in this revocation appeal, the Secretary of State is not obliged to search again for, or to (re-)disclose, any material pre-dating the decision under appeal of 1 July 2014.

    1B. For the purposes of paragraph 15 of the Practice Note, the Secretary of State's ``relevant disclosure obligations are modified by Paragraph 1A above.'

  12. The Appellant's lawyers were asked to comment on this proposal and they duly served written submissions stating that the variation application should be stayed. The Secretary of State's counsel made further written submissions supporting their application. ...''

    Legislative Framework

  13. Section 76(1) of the 2002 Act provides:

    ``76 Revocation of leave to enter or remain

    (1) The Secretary of State may revoke a person's indefinite leave to enter or remain in the United Kingdom if the person--

    (a) is liable to deportation, but

    (b) cannot be deported for legal reasons.

    ...

    (4) In this section--

    `liable to deportation' has the meaning given by section 3(5) and (6) [of the Immigration Act 1971].''

  14. Section 3(5) of the Immigration Act 1971 (``the 1971 Act'') provides:

    ``3 General provisions for regulation and control

    (5) A person who is not a British citizen is liable to deportation from the United Kingdom if--

    (a) the Secretary of...

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