J1, R (on the application of) v Special Immigration Appeals Commission & Anor

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 22November 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 The Claimant’s ILR was revoked on the basis that he is liable to deportation but cannot be removed from the United Kingdom for legal reasons.

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”):

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.

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.

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.

3.

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.

4.

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’.

5.

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.

6.

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, ...

7.

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.

8.

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.’

9.

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. …”

Section 76(1) of the 2002 Act provides:

“76Revocation 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].”

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 State deems his deportation to be conducive to the public good; or

(b)

another person to whose family he belongs is or has been ordered to be deported.”

As the 2002 Act stood at the time of the revocation of the Claimant’s ILR by the Secretary of State, it was an “immigration decision” listed in s.82(2)(f) of the 2002 Act, and, accordingly, a right of appeal arose in respect of that decision under s.82(1), which the Claimant exercised.

The effect of the Claimant exercising his right of appeal against the revocation is set out in s.3D of the 1971 Act, which continues to apply to the Claimant and provides:

“Continuation of leave following revocation

(2)

The person’s leave is extended by virtue of this section during any period when—

(a)

an appeal under section 82(1) [of the 2002 Act] could be brought, while the person is in the United Kingdom, against the … revocation …, or

(b)

an appeal under that section against the … revocation, brought while the appellant is in the United Kingdom, is pending …”

It is common ground first, that SIAC had jurisdiction to hear the Claimant’s appeal; second, that the Claimant filed a Notice of Appeal to SIAC on 3 February 2017; and third, that the Notice of Appeal encompassed the following statutory grounds under s.84 of the 2002 Act which provides, so far as is material:

“84 Grounds of appeal

(1)

An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—

(a)

that the decision is not in accordance with immigration rules; …

(c)

that the decision is unlawful under section 6 of the Human Rights Act 1998 … as being incompatible with the appellant’s Convention rights;

…

(e)

that the decision is otherwise not in accordance with the law;

(f)

that the person taking the decision should have exercised differently a discretion conferred by immigration rules;

(g)

that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights.”

Section 85 of the 2002 Act provides:

“85 Matters to be considered

(1)

An appeal under section 82(1) against a decision shall be treated by [SIAC] as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).

(2)

If an appellant under section 82(1) makes a statement under section 120, [SIAC] shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.

(3)

Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.

(4)

On an appeal under [section 82(1) …] against a decision [SIAC] may consider evidence about any matter which [it] thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.

(5)

But sub-section (4) is subject to the exceptions in section 85A.”

Section 85A provides, so far as is material:

“85A Matters to be considered: new evidence: exceptions

…

(3)

Exception 2 applies to an appeal under section 82(1) if—

(b)

the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a ‘Points Based System’, and

(c)

the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f).”

The Special Immigration Appeals Commission (Procedure) Rules 2003, give SIAC power by rule 39 to give directions relating to the conduct of any proceedings, including a direction requiring a party to file and serve further details of his case or any other information which appears to be necessary for the determination of the appeal or application, or any other document.

Ms Harrison advances three grounds of challenge:

The Secretary of State raises a preliminary jurisdiction issue.

The Secretary of State’s position, as advanced by Mr Tam, is that while, in principle, a decision of SIAC is subject to judicial review, the court will not exercise its discretion with respect to such an application in relation to an interlocutory decision unless there is a “gross and florid” error of law.

Dealing with this point on the renewal application, Foskett J said:

“5.

As Lang J observed when refusing permission on the papers, it is rare for an interlocutory decision of SIAC to be susceptible to challenge in this way and the test is usually expressed to be whether there has been a ‘gross and florid error of law’. That is derived from the well-known Cart case, but in Secretary of State for the Home Department v The Special Immigration Appeals Commission [2015] 1 WLR 4709, the President of the Queen’s Bench Division, Sir Brian Leveson, drew a distinction between the general type of case envisaged in R (Cart) v Upper Tribunal [2010] 2 WLR 1012 and cases where there can be no effective appeal in relation to an issue of principle involved in the procedural decision.

6.

In the written material put before me, the Secretary of State argues here that the ‘straightforward interlocutory disclosure decision’ made in this case is ‘in principle capable of being the subject of an appeal at the end of the proceedings’. That may be so, but it is, to my mind, a process that may lead to a disproportionately lengthy time before this case is disposed of finally, a case that, as I’ve observed already, has an extremely lengthy procedural history.

7.

It seems to me to be a case which, in the interests of the claimant and the Secretary of State, and thus the general public, should be resolved as quickly as possible. In the particular context of this case, it seems to me that if there is an arguable point of law that could arguably impact on the ultimate decision of the appeal, it would be wrong not to permit that issue to be resolved before the hearing of the substantive appeal. It could save a lot of costs also.”

Mr Tam told me that, having regard to the observations of Foskett J and the stage at which this claim has reached, the Secretary of State does not press the jurisdiction point in these proceedings, but maintains the position he has advanced for the future.

At the outset of her written submissions on Ground 1 (skeleton argument, para 14) Ms Harrison identifies the issue in Ground 1 in the following terms:

“The issue in Ground 1 is whether, on a s.82 appeal against revocation of ILR under s.76 of the 2002 Act, s.85(4) is to be construed as limiting SIAC’s consideration of the facts and evidence to matters in existence at the date of the decision (in this case 1 July 2014), as the SSHD contends and as SIAC held; or, as the claimant submits, that in such an appeal against revocation, s.85(4) permits SIAC to consider facts and evidence of matters arising after the date of the decision appealed against.”

I agree with Mr Tamthat this is not the issue. The Secretary of State accepts, and SIAC agreed, that post-decision evidence is admissible in a statutory appeal against revocation in so far as it is relevant to the substance of the decision (see SIAC’s judgment at paras 19, 30 and 33).

The real issue between the parties is as to the meaning of the words “relevant to the substance of the decision” in s.85(4). Ms Harrison submits that these words as applied to the present case mean relevant to “the decision to revoke J1’s ILR” (skeleton argument, para 17). Mr Tam does not take issue with this statement as far as it goes, but observes that it merely begs the question: what issues are relevant to the decision to revoke ILR? I agree with Mr Tam that the critical question is whether the issues in the appeal should be considered by reference to the facts in existence at the time of the decision, or whether, as the Claimant contends, SIAC should consider the issue by reference to the facts as at the date of the appeal.

The leading authorities to which I have been referred as to the meaning of the words “relevant to the substance of the decision” in s.85(4) are: AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076, [2011] 1 WLR 385; AQ (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 833; and Patel v Secretary of State for the Home Department [2013] UKSC 72, [2014] AC 651.

In Patel Lord Carnwath stated (at para 38) in respect of the reference in s.85(4) to matters relevant to “the substance” of the decision appealed against:

“That seems a curiously ambiguous term, which can fairly be read as referring either to the substantive effect of the decision or to the substantive reasons underlying it.”

In AS Arden LJ took the latter view; Sullivan LJ (with whom Moore-Bick LJ agreed) took the opposite view. Although he considered the arguments to be finely balanced, Lord Carnwath (with whom all their Lordships agreed on this point) said (at para 44) that he preferred the approach of the majority in AS. Lord Carnwath observed, “Like Sullivan LJ I find a broad approach more consistent with the ‘coherence’ of this part of the Act”.

Ms Harrison submits that SIAC’s approach to s.85(4) is incompatible with the Supreme Court ruling in Patel. Applying the broad and purposive approach to construction, she submits that if “the decision” for the purposes of s.85(4) is the generic decision to revoke ILR, then there is no basis for implying a temporal limit on the evidence which SIAC can consider, and limiting it to that in existence as of 1 July 2014.

In support of this submission Ms Harrison also relies on what she describes as the long-established approach of the Upper Tribunal as to the scope of s.85(4) as confirmed in LS (post-decision evidence: direction; appealability) Gambia [2005] UKAIT 00085 at paras 9 and 10, and Yussuf v Secretary of State for the Home Department [2018] UKUT 00117 (IAC). Further Ms Harrison relies on a decision of SIAC itself in the case of ZZ v Secretary of State for the Home Department (SC/63/2007), 1 April 2015, (on appeal see [2017] EWCA Civ 133), to which SIAC in the present case was not referred.

I do not agree that the approach adopted by SIAC is incompatible with Patel. Further I do not consider that any of the cases relied on Ms Harrison support this submission.

Patel was concerned with applications for leave to remain. The “one-stop” system barred the claimants from adducing post-decision evidence in their appeals under the Immigration Rules (by reason of exception 2 of s.85A of the 2002 Act, see para 12 above). They therefore wished to adduce that evidence in support of a new claim under Article 8 ECHR. Even though the Supreme Court decided that a challenge to “the substance of the decision” could permissibly include an Article 8 complaint about it, it would still be a challenge to the decision made. As Mr Tam observes, the evidence in question was evidence of the state of affairs at the time of that decision. The Supreme Court did not decide that it would be permissible for the claimant to argue that regardless of what the situation was at the time of the decision, his Article 8 circumstances had changed by the time of the appeal.

The appellants (Alam and Anwar) failed to produce relevant information as required under the Points Based System at the relevant time, but each appellant was able to adduce the relevant evidence in response to the s.120 notice (see Lord Carnwath at para 32). The new evidence related to material which was available at the time of the decisions (para 34).

AS was not concerned with evidence of events subsequent to the Secretary of State’s decision. As Pill LJ noted in AQ:

“26.

Both cases considered in AS involved consideration of evidence of events prior to the decision of the Secretary of State. In one case an application to the Secretary of State had been based on an intention to establish the appellant in business (r.206E) where she could have applied under the International Graduate Scheme. In the second case, the application for leave to remain was based on 10 years’ residence in the United Kingdom whereas the appellant could have sought variation of her leave to remain on the basis that she was a student. Moore-Bick LJ stated, at paragraph 83, that ‘the matters relied on [in the section 120 Notice] all pre-date the decision [under appeal]’.

…

27.

Sullivan LJ, at paragraph 106, plainly had in mind evidence available at the time of the Secretary of State’s decision in his example, at paragraph 106, of an applicant who had applied for leave to remain on the wrong basis and failed to mention their marriage to a United Kingdom citizen.”

LS was concerned with applications for leave where there was a change of circumstances between the date of the decision and the date of the appeal. The “one-stop” process is highly relevant to leave applications when an individual can make multiple applications for leave based on different grounds depending on the circumstances that pertain at the relevant time (see para 10 of the Tribunal’s decision). I agree with Mr Tam that the position is different with respect to revocation appeals where the Secretary of State makes only one decision which may be appealed.

The case of Yussuf did concern revocation of ILR pursuant to s.76(1) of the 2002 Act. The Upper Tribunal (Immigration and Asylum Chamber) (“UTIAC”) concluded that the Secretary of State had power to revoke the appellant’s ILR, but that the First Tier Tribunal judge had erred in holding that he could not substitute his discretion for that of the Secretary of State. UTIAC further concluded that “given the passage of time since the hearing in December 2014, up-to-date evidence concerning the appellant would be required” (para 42) for the purposes of the re-determination of the appellant’s case that UTIAC would make at a later date. However it is not possible to discern from UTIAC’s decision why this was so.

ZZ v Home Secretary was not a revocation appeal, but rather an appeal against refusal of entry. The Secretary of State had cancelled ZZ’s ILR and excluded him from the UK. He had left the UK, and a little over a year later he arrived at Heathrow and was refused admission to the country. The decision of SIAC (Irwin J (as he then was) presiding) makes clear that the approach of SIAC in that case where the appellant had an Article 8 claim was determined by the fact that both the Article 8 claim and the EU law principle of proportionality required a balancing of the national security case against the appellant’s family life. Irwin J stated (at para 31):

“Our approach has been as follows. Both the level of risk to national security represented by the Appellant and the degree or extent of incursion on his Article 8 rights evidently lie at the heart of this decision, and after-coming evidence on these issues affect the ‘substance’ of that decision. Moreover, in assessing whether exclusion is proportionate, we must balance the risk to national security against the impact on the Article 8 rights. It is hard to see how that could be done rationally by looking at the historic evidence as to national security and the up-to-date evidence on Article 8. That is particularly so here, given the effect of the decision of the CJEU.”

On 29 July 2015 the Secretary of State obtained permission to appeal SIAC’s decision on the ground that SIAC erred in looking at evidence subsequent to the Secretary of State’s decision of 19 September 2006 to refuse ZZ admission to the UK. The Court of Appeal, at the substantive hearing on 9 March 2017, ruled the appeal to be academic by reason of ZZ’s re-admission to the UK on 18 August 2015. However, Gross LJ (with whom Simon and Flaux LJJ agreed) observed (at para 26):

“…the question of construction raised by the appeal is not altogether straightforward. On the one hand, there is something curious about deciding the correctness of a 2006 decision by reference to the facts known in 2015 (and not available to the decision taker in 2006). On the other hand, the common sense of the 2015 SIAC judgment is, with respect, readily apparent: the rival national security and Art.8 cases need to be weighed: how can it be right to do so with reference to the facts as known in 2015 in respect of the Art.8 case but to ignore the change in the national security case (as SIAC found there had been) between 2006 and 2015? Issues of this nature are best resolved in cases where they are necessary for the decision and the decision is not academic…”

Whether the factors that led SIAC to reach the decision it did in ZZ apply in the present case will depend, at least in part, on the determination of Ground 3 (see paras 41-71 below).

The case on which the Secretary of State relies is AQ, where the Court of Appeal held that the type of application there in issue (an application for leave under the Points Based System) had to be considered as at the date of the decision.

Pill LJ stated (at para 36):

“Section 85(2), put by the appellant at the heart of his case, concludes by referring to the availability of grounds of appeal ‘against the decision appealed against’. I agree with Mr Payne that the focus is on the decision of the Secretary of State. In my judgment, the ‘decision’ is clearly the decision of the Secretary of State. In the present context, fresh matters may be raised but are relevant only insofar as they challenge that decision. As Sedley LJ recognised in Pankina at paragraph 39, there will be cases under the Rules which depend on the situation existing at the time of the Secretary of State’s decision. In my judgment, Rule 245Z is one of those cases. The points to be accumulated must be accumulated at the time of the Secretary of State’s decision. That includes, as is agreed, a requirement that the relevant degree has been awarded.”

SIAC, in the present case, was of the view (judgment, para 26) that this statement is “powerful support” for the Secretary of State’s submissions, as was the statement of Sullivan LJ in AQ (who had also been a party to the decision in AS) that:

“41.

… In AS the Court was not concerned with decisions made by the Respondent under the ‘Points-Based’ system of determining applications for leave to remain. In such cases there is a ‘fixed historic time-line’. The effective operation of a points based system requires the points to have been accumulated at the date of the Secretary of State’s decision.”

Ms Harrison submits that AQ does not assist the Secretary of State because it is in a different category from cases such as AS, LS, and Patel as AQ involved an immigration rule which required that a number of “points” had to be acquired at the date of the Secretary of State’s decision. Section 76 of the 2002 Act is worded in the present tense, whereas the relevant rule in AQ was not, and had, she contends, an express temporal focus. Further, the 2002 Act now expressly provides that the AQ-type of case is an exception to how matters are to be considered under s.85 of the 2002 Act (see para 12 above).

In my view AQ does provide support for the Secretary of State’s submissions because it makes clear that the relevant test is whether the rules or statutory provisions require proof of a particular state of affairs as at the date of the Secretary of State’s decision. I agree with Mr Tam that while AQ and Pankina are both cases that concern the Points Based System, the statement of principle is of wider application. The context in which revocation decisions occur must be relevant. Such a decision is taken on the basis of events that have already occurred. The decision involves no forward-looking assessment of the kind familiar in asylum and human rights appeals. That being so, in my view, an appeal from a revocation decision requires consideration of matters as at the date of the decision.

I conclude that the appeal against the revocation of the Claimant’s ILR is to be considered by reference to the facts in existence at the time of the decision unless Article 8 ECHR is engaged, in which case, having regard to the approach adopted by SIAC in ZZ, and the observations of the Court of Appeal in that case (see paras 32-33 above) the position may be different. I will therefore next consider whether Article 8 is engaged in the present case.

The Claimant contends that SIAC erred in concluding that the revocation of his ILR did not engage Article 8.

In AG (Eritrea) v Secretary of State for Home Department [2007] EWCA Civ 801; [2008] 2 All ER 28, Sedley LJ stated at para 28:

“…while an interference with private or family life must be real if it is to engage Art.8(1), the threshold of engagement (‘the minimum level’) is not an especially high one.”

Ms Harrison submits that the threshold is plainly met in the present case. SIAC erred, she contends, in three respects. First, in failing to take into account the revocation itself removes from the Claimant an existing secure and settled immigration status with all the attendant rights and benefits that he has enjoyed for over a decade. Ms Harrison submits that revoking ILR cannot be assessed in a vacuum, in isolation from its inevitable consequences and intended effects. Second, SIAC failed to have regard to material evidence regarding the consequence of revocation of ILR and adverse effects on the Claimant and his family. The Claimant has resided in the UK for 26 years, of which 18 have been lawful, while his wife and six children are British subjects. Third, SIAC erred in conflating the issue of engagement in Article 8(1) with issues relating to justification under Article 8(2).

Ms Georgina Balmforth, Head of the Special Cases Unit within the Home Office, explains in her first open witness statement dated 19 June 2017 the reasons for revoking the Claimant’s ILR, which, she says, are set out in a submission sent to the Secretary of State dated 24 June 2014. Ms Balmforth states in her witness statement:

“8.

… Recognising the legal barrier to deportation, the decision to revoke J1’s ILR was taken on the basis that the Secretary of State has deemed that his deportation is conducive to the public good pursuant to s.3(5) of the 1971 Act and that his case warrants limited leave with conditions. This is to emphasise the temporary nature of his leave in the UK and allow the Home Office to undertake regular reviews to effect deportation at the earliest opportunity. Meanwhile, along with the Foreign and Commonwealth Office, the Home Office would continue to work with the Ethiopian authorities to mitigate the current Article 3 ECHR risk that prevented J1’s deportation.”

The submission to the Secretary of State includes the following:

“The effect of discontinuing the J1 case

13.

… DWA remains our only means of removal… we do not consider this to be forthcoming in the foreseeable future.

14.

Nevertheless, we wish to impose significant restrictions on J1. By discontinuing the DWA case, SIAC bail will fall away. We propose to revoke J1’s ILR… and grant limited leave with conditions imposed under the 1971 Immigration Act. The conditions could include a residence restriction, restrictions on employment and study, and a reporting requirement. We would propose weekly reporting. Further, limited leave will reduce their stability and indicate our intention to keep their cases under regular review. …”

Ms Balmforth continues:

“9.

When making this decision regard was given to the Home Office’s guidance on revoking ILR, Asylum Policy Instruction: Revocation of Indefinite Leave to Remain dated 10 June 2013 (section 3.1) (‘the Home Office guidance on revocation of ILR’).”

Section 3.1 of the Home Office guidance on revoking ILR states, so far as is material:

“Section 3: Revoking Indefinite Leave

3.1

In Deportation Cases

Section 76(1) gives the Secretary of State the power to revoke indefinite leave to enter or remain in the United Kingdom where a person is liable to deportation, but cannot be deported for legal reasons.

The circumstances in which a person is liable to deportation include:

•

where the Secretary of State deems the person’s deportation to be conducive to the public good;

…

For further information on what leave to grant after indefinite leave is revoked under section 76, see section 5.3 of this instruction: …”

Section 5.3 of the Home Office guidance on revoking ILR states, so far as is material:

“5.3

Leave/Status after Revocation

Where the decision maker revokes indefinite leave under section 76, they must determine if the person qualifies for leave in another category. If so, they must grant leave accordingly. This might be leave under the rules, Discretionary Leave or Restricted Leave. …”

The letter dated 1 July 2014 from the Secretary of State dealt with both revocation of indefinite leave to remain and the grant of limited leave to remain for a period of six months with conditions imposed pursuant to s.3(1)(c) of the 1971 Act.

Ms Balmforth continues at paragraphs 10 and 11 of her witness statement:

“10.

In place of ILR, J1 was granted six months’ limited leave to remain with conditions. J1 appealed to the First-tier Tribunal (Immigration and Asylum Chamber) (‘FTT’) against the decision to revoke his ILR, on grounds which included an asylum claim. … The Secretary of State considered the asylum claim and withdrew the grant of limited leave to remain. On 4 September 2014, the Secretary of State refused the asylum claim because J1 is excluded from the Refugee Convention by Article 1F(c), and again granted J1 six months’ limited leave to remain in accordance with her Restricted Leave policy…

11.

J1 commenced an application for judicial review challenging the lawfulness of the Restricted Leave policy and the lawfulness of the specific conditions imposed on him. In parallel, on 29 October 2014 the FTT considered whether the second grant of limited leave had resulted in J1’s appeal against the revocation of ILR falling to be treated as abandoned pursuant to s.104(4A) of the 2002 Act. On 7 November 2014, the FTT decided that it did and issued a notice of abandonment. On 12 May 2016 a panel of the Upper Tribunal (Collins J and Judge O’Connor) considered both the judicial review claim and an appeal against the FTT’s decision. The Upper Tribunal allowed the appeal against the decision of the FTT and the claim for judicial review. … The appeal was remitted to the FTT but, on 2 November 2016, pursuant to s.97(3) of the 2002 Act, the Secretary of State certified that her decision to revoke ILR had been taken wholly or partly in reliance on information which should not be made public… Consequently, the FTT appeal lapsed and a right of appeal to SIAC arose.”

Mr Tam submits that the revocation of the Claimant’s ILR does not in itself engage Article 8 in the absence of any other steps. He is presently at no risk of removal and in itself revocation does not materially change his family circumstances. The Claimant’s ILR remains statutorily extended pending the final determination of his appeal (see para 9 above). If his appeal is unsuccessful and the Secretary of State then grants some form of limited leave with conditions, it would be the effect of those conditions which may engage Article 8. The Secretary of State contends:

“The duration and conditions of such leave will be for the Secretary of State’s decision at the time of any such grant. At that time [the Claimant] would be able to bring a challenge to the Secretary of State’s decision inter alia on the basis of the effects on him and his family of the duration of the leave and any conditions imposed.” (Summary Grounds of Resistance, para 44).

Mr Tam suggests that the precise terms of any limited leave to remain which may be granted “cannot be guessed in advance” (skeleton argument, para 51). Ms Harrison observes the two grants of limited leave to remain were for six months with conditions (see para 50 above); that being so any future grant of leave is likely to be similarly limited with conditions.

In support of her submission that the revocation of ILR in itself engages Article 8, Ms Harrison relies on the case of R (Johnson) v Secretary of State for the Home Department [2017] AC 365; [2016] UKSC 56, which concerned the denial of British citizenship to the claimant whose parents were not married. The Supreme Court decided that whilst the Convention did not guarantee the right to acquire a particular citizenship, the denial of citizenship, which had such an important effect upon a person’s social identity, was sufficiently within the ambit of Article 8 to trigger the application of the prohibition on discrimination in Article 14.

Ms Harrison contends that in Johnson the Supreme Court decided that the denial of British citizenship “engages” Article 8(1). Mr Tam submits that is not so. I agree with Mr Tam that what the Supreme Court decided was all that it was required to do, namely to determine whether the denial of citizenship was sufficiently “within the ambit of Article 8 to trigger the application of the prohibition of discrimination in Article 14” (Baroness Hale at para 27). In R (Carson and Reynolds) v Secretary of State for Work and Pensions [2006] 1 AC 173; [2005] UKHL 37, Lord Nicholls stated (at para 3):

“Article 14 does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in article 14.”

In any event if Article 8 was engaged in that case because of the significant and immediate effect that denial of citizenship has upon a person’s social identity, it does not follow that the removal of ILR in itself engages Article 8 in the absence of any other steps.

In Kuric v Slovenia (2012) 56 EHRR 20 (referred to by Baroness Hale in Johnson at para 26), the discriminatory erasure of the applicants’ residence rights was held to be a breach of Article 14 read with Article 8 even though their residence had not in fact been affected. Ms Harrison relies on the observation of the Grand Chamber (at para 339) that “the Government did not contest before it that the ‘erasure’ and its repercussions had had an adverse effect on the applicants and amounted to an interference with their ‘private or family life’ or both within the meaning of Art.8(1) of the Convention”; and that the Grand Chamber saw no reason to depart from the Chamber’s findings in this regard.

Mr Tam points out that in Kuric the concession was made on the back of the “repercussions” of the erasure, and comments that it is not difficult to see why Article 8 was engaged in that situation. The facts of that case are a far cry, he submits, from the present case.

Mr Tam relies on the case of R (MS (India)) v Secretary of State for the Home Department [2017] EWCA Civ 1190; [2018] 1 WLR 389. That case also concerned individuals whose deportation was considered to be conducive to the public good but who could not be deported because their removal would involve a breach of their Article 3 rights. They applied for and were refused ILR. They challenged the Secretary of State’s “Restricted Leave Policy” (“the RLR policy”). They also challenged decisions refusing them ILR, and granting them restricted leave subject to conditions.

Mr Tam relies in particular on the statement in MS of Underhill LJ (at para 124): “I do not believe that the refusal of ILR as such engages Article 8 at all”. In support of this view Underhill LJ referred to the decision of the Grand Chamber of the European Court of Human Rights in Jeunesse v The Netherlands (2014) 60 EHRR 17 at para 103.

Ms Harrison submits that MS was about a refusal to grant ILR, not the revocation of ILR, which involves the removal of an existing secure status with wide-ranging attendant benefits. Denial of ILR in MS simply meant the continuation of restricted leave pursuant to which the appellants in that case were already subjected to Article 8(1) interferences. Whilst the Claimant holds ILR he does not suffer the Article 8(1) interferences of restricted leave. Similarly, Jeunesse was a case where the appellant was asserting a right to remain when he had none, rather than, as in the present case, being deprived of an existing settled status.

I do not agree. In my view SIAC was entitled to consider that the reasoning of the Court of Appeal in MS provides “strong support” (para 57) for the conclusion that the Article 8 rights of the Claimant were not engaged. This is as SIAC observes,

“especially as the Court of Appeal in that case held that it was not the refusal of ILR which engaged Article 8, but that instead it was the grant of limited leave in those cases pursuant to the Restricted Leave Policy which engaged Article 8 as appears from paragraphs 102 and 124 of the judgment.”

In MS Underhill LJ stated at para 102:

“… The application of the RLR policy is liable to interfere with the Article 8 rights of the persons to whom it is applied, essentially because the conditions which it contemplates being imposed and the short duration of the grants of leave have the effect of placing obstacles in the way of creation of private and family life: indeed that is part of their purpose…”.

At para 124 Underhill LJ continued:

“… It was common ground before us, as noted at para 102 above, that decisions under the RLR policy did not consist simply in the refusal of ILR, and that viewed as a whole there was liable to be at least some interference with article 8 rights. …”

The SIAC judgment in the present case continues:

“58.

A crucial fact is that Article 8 is a qualified right as it provides that:

‘There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, for the protection of public order… or for the protection of the rights and freedoms of others.’

59.

That is significant because, as has been explained in paragraph 4 above, Jackson LJ giving the judgment of the Court of Appeal on J1’s appeal in 2013 concluded 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’. This indicates that the removal of the Appellant’s ILR does not in itself constitute a breach of the Article 8 rights of the Appellant, his wife or his children because it was ‘in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, for the protection of public order’. That would mean that the revocation of the Appellant’s ILR would not be an interference with the exercise of any Article 8 rights of the Appellant, his wife or children. By similar reasoning the imposition of prison sentence on a notoriously violent offender would not interfere with any Article 8 rights of the offender, his wife or children.”

Ms Harrison submits that in these paragraphs SIAC conflated the issue of engagement of Article 8(1) with the issue of justification under Article 8(2), and therefore wrongly brings the latter into account in assessing the former.

I do not accept this is so. These paragraphs, read in the context of the SIAC judgment as a whole which includes specific reference to paragraphs 102 and 124 in MS, make clear that a distinction must be drawn between (1) the removal of ILR which in itself does not engage the Claimant’s Article 8 rights, and (2) the grant of limited leave with conditions, which may engage his Article 8 rights if and when limited leave with conditions is granted in its place.

Finally, Ms Harrison submits that, having it appears accepted the significance of the impact of the revocation of ILR on the Claimant’s children in the context of the findings made in relation to his children’s rights under s.55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”), SIAC inconsistently and erroneously did not take these matters into account in assessing whether Article 8(1) is engaged.

Insofar as is material, s.55 of the 2009 Act provides that:

“55.

Duty regarding the welfare of children

(1)

The Secretary of State must make arrangements for ensuring that—

(a)

the functions mentioned in sub-section (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom…

(2)

The functions referred to in sub-section (1) are—

(a)

any function of the Secretary of State in relation to immigration, asylum or nationality…

(3)

A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of sub-section (1).”

The Home Office guidance on revocation of ILR provides at para 1.4:

“1.4

Application in Respect of Children

…

Officers must not apply the actions set out in this instruction either to children or to those with children without having due regard to s.55…”

The statutory duty to children includes the need to demonstrate “the child’s interests being made a primary, although not the only consideration”.

SIAC stated (at para 67):

“…The interests of the children of the Appellant will have been adversely affected by the decision to revoke the Appellant’s ILR because instead of having a father with ILR for the foreseeable future, the consequence of the revocation of their father’s ILR meant that his right to remain in this country was very uncertain and it could be ended at the hearing of their father’s appeal against the section 76 decision. …”

Mr Tam submits that there is no inconsistency in SIAC’s judgment. The Article 8(1) and s.55 issues are distinct. Section 55 is what Mr Tam describes as a pre-decision obligation. It places a duty on the Secretary of State to make arrangements for ensuring that, inter alia, immigration functions are discharged, having regard to the need to safeguard and promote the welfare of children in the UK.

SIAC’s findings in the context of s.55 do not equate, Mr Tam contends, to a finding that Article 8 is, even arguably, engaged by the revocation of ILR. Paragraph 67 (and para 65) of the judgment should be read together with para 57 where SIAC made the finding that the Claimant’s Article 8 rights were not engaged. What paragraph 67 is doing is focusing on the time of the potential dismissal of the appeal against revocation.

In the present case, as a result of the events and decisions described in Ms Balmforth’s witness statement at paras 10 and 11 (see para 50 above, and see the SIAC judgment at para 6 set out in Factual Background at para 5 above), the Claimant’s ILR has been revoked but there is no extant decision to grant him limited leave with conditions. That being so, in my view, Article 8 is not engaged in this case.

The Claimant contends that (i) the s.76(1) revocation power depends upon the existence of “some prospect” of deportation being achieved; and/or (ii) in any event the power cannot be exercised if the prospects of deportation are so remote that it would be irrational to revoke his settled status.

The first limb of this ground involves a question of statutory construction of s.76 of the 2002 Act and s.3(5)(a) of the 1971 Act. Ms Harrison submits that the “liable to detention” power in paragraph 16 of Schedule 2 to the 1971 Act informs the construction of the term “liable to deportation” in s.3(5)(a). The common thread, Ms Harrison submits, running through the cases is that the Secretary of State’s powers are not unfettered and indefinite; they cannot lawfully be exercised when there is no real prospect of their underlying immigration purpose being achieved.

The House of Lords in R (Khadir) v Secretary of State for the Home Department [2005] UKHL 39; [2006] 1 AC 207 held that the exercise of the paragraph 16 power (“liable to detention”) was impliedly limited to cases in which there was “some prospect” of effecting the person’s removal so that the person could properly be said to be “liable to” detention (see Lord Brown at para 32).

The words “liable to” are common to the temporary admission power in paragraph 16, and to the provision which deems a person as liable to deportation in s.3(5)(a), which is imported into the s.76 revocation power under the 2002 Act. Ms Harrison submits that the same words used in the same statute or statutory scheme cannot be given two different meanings. Thus, if there is no prospect of deporting a person, the statutory preconditions for revocation of their ILR, liability to deportation, cannot be met.

The second or alternative limb to this second ground is that even if the s.76 revocation power remains available in principle, it cannot rationally and lawfully be exercised in a case where the prospects of removal are so remote that it would be irrational to revoke ILR and deprive the individual of his settled status.

This submission is based on the reasoning of Baroness Hale in Khadir. At para 4 she stated:

“There may come a time when the prospects of the person ever being able safely to return, whether voluntarily or compulsorily, as so remote that it would be irrational to deny him the status which would enable him to make a proper contribution to the community here …”.

Ms Harrison suggests that an analogous approach has been applied to the power to grant limited leave to remain under s.3 of the 1971 Act. Thus in MS (at para 111) Underhill LJ said:

“… It would no doubt be disproportionate for the Secretary of State to have a policy (or, since that is what it would be, a rule) that migrants who were excluded but irremovable should never be eligible for ILR, whatever the circumstances and however long they have been here …”

It follows, Ms Harrison submits, that the question whether there is a prospect of deporting the Claimant to Ethiopia at all, or within a foreseeable period of time, compatibly with his fundamental rights is, at the very least, a relevant factor in the appeal against the revocation of his ILR.

As for the first limb of this ground, the critical point is that in contrast to the term “liable to deportation”, the term “liable to detention” is not defined by statute. I agree with Mr Tam that the statutory definition of “liable to deportation” in s.3(5)(a) of the 1971 Act (see para 7 above) is conclusive in the Claimant’s case. A person’s deportation can be regarded as conducive to the public good even if his deportation cannot foreseeably be actually effected. Mr Tam observes, and I agree, that the Claimant’s contention that the s.76 revocation power depends on the existence of “some prospect” of deportation being achieved would in effect limit the exercise of that power to those whose deportation was considered possible, but just not quite yet. In my view such a proposition would undermine Parliament’s clear intention.

The purpose of the revocation power in s.76 was described by Lord Hughes (with whom Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Toulson agreed) in R (George) v Secretary of State for the Home Department [2014] UKSC 28, at para 16:

“The case for the existence of such a power is clear. A human rights claim may well prevent actual deportation, but the individual concerned is, by definition, a person whose presence is no longer conducive to the public good. If a deportation order cannot be made, it may make good sense to alter his status from indefinite leave to remain to limited or, more likely, conditional leave which may give scope for control of his activities in the public interest.”

Lord Hughes continued (at para 31):

“Persons are liable to be deported, under any of the procedures which may apply, because their presence in the United Kingdom is judged not to be conducive to the public good… If it turns out that there is a legal obstacle to actual removal, for example because of Convention rights which cannot be infringed, that does not alter the fact he is a person whose presence is not conducive to the public good. There is no legal symmetry in indefinite leave to remain co-existing with the status of someone whose presence is not conducive to the public good. It makes perfectly good sense, whilst the legal obstacle remains, for the Secretary of State to be in a position to revisit the terms of leave to enter. Moreover the legal obstacle is not necessarily, or even usually, permanent…”

The term “liable to detention” is used in a different context. Whether an individual is “liable to detention” is not governed by whether there are any prospects of the individual becoming detained in the future. The decision in the House of Lords in Khadir is that the prospects of a completely different event, namely removal, govern whether the detention power “under paragraph 16(1)” continues to exist. It is the existence of the paragraph 16(1) power which then governs whether a person is “liable to detention”.

The judgment of the Supreme Court in George plainly envisages that there may be some cases where the obstacle to removal is permanent. Similarly in MS the reasoning of Underhill LJ (at paras 118-123) recognised that there may be cases where an individual can remain liable to deportation but ineligible for ILR for long periods of time; and cases where an individual can, in practice never be removed but who nonetheless will never become eligible for ILR. I agree with Mr Tam that if the Claimant is correct in his submission that the s.76 power could not be exercised where there were no prospects of removal it would mean that, however serious the previous conduct of the individual in question, the s.76 power could not be exercised. That would be contrary to the statutory purpose of s.76 as recognised by the Supreme Court in George, and run contrary to the reasoning of the Court of Appeal in MS.

As for the second limb of this ground, I agree with Mr Tam that the Claimant’s reliance on the observation of the Court of Appeal in MS (at para 111) that it would be irrational for the Secretary of State to have a policy that migrants excluded from the protection of the Refugee Convention should never be eligible for ILR is misplaced. The fact that the Claimant has had his ILR revoked does not mean that the Secretary of State has decided that he will never in future be eligible for ILR. In George at para 32 Lord Hughes said:

“Whether or not it may become appropriate after the passage of time to re-grant indefinite leave is a matter for [the Secretary of State].”

I consider this ground to be arguable and I therefore grant permission. However I do not accept that there are implied limits on the power to revoke ILR under s.76 as contended for by the Claimant.

In my judgment

Accordingly, this application for judicial review is dismissed.