M, R (on the application of) v Secretary of State for the Home Department

19 May 2023

[2023] EWHC 1156 (Admin)

High Court

A man's UK visa was cancelled, and the government refused to give it back. The court needs to decide if secret information is involved. If so, a special secret court process will be used to protect national security, ensuring fairness to both sides.

Key Facts

•Claimant (M), an Iraqi citizen, had his indefinite leave to remain (ILR) in the UK cancelled on 26 November 2018.
•The cancellation was linked to an exclusion direction under section 2C of the Special Immigration Appeals Commission Act 1997.
•M subsequently claimed asylum in the UK using a false identity.
•On 11 November 2021, the Home Secretary refused to reinstate M's ILR.
•On 17 November 2021, M was granted asylum and five years' leave to remain.
•M challenges both the cancellation of his ILR and the refusal to reinstate it via judicial review.
•The case involves national security issues, with potentially non-disclosable material.

Legal Principles

Duty of candour on the part of the defendant in judicial review proceedings.

R v Barnsley Metropolitan Borough Council, ex parte Hook [1976] WLR 1052

Procedure for handling closed material in judicial review under the Justice and Security Act 2013.

Justice and Security Act 2013, section 6

Careful identification and articulation of preliminary issues in national security cases.

Secretary of State for the Home Department v Smith [2023] EWCA Civ 376

Definition of 'historic injustice' in relation to immigration decisions.

Rahaman and another v Secretary of State for the Home Department [2022] EWCA Civ 310, citing Patel v Secretary of State for the Home Department (historic injustice) NIAA Part 5A [2020] UKUT 00351 (IAC)

Outcomes

The court will not postpone deciding whether to make a declaration under section 6 of the Justice and Security Act 2013.

Fairness requires the defendant to confirm the absence of closed material relevant to preliminary issues before proceeding. The court cannot confidently determine that all preliminary issues are purely legal and unaffected by potentially closed material.

The parties are directed to cooperate and propose a timetable for an application under section 6 of the 2013 Act.

The possibility of relevant closed material necessitates a procedure under the 2013 Act to ensure fairness to the claimant.

M, R (on the application of) v Secretary of State for the Home Department

Key Facts

Legal Principles

Outcomes

Similar Cases

YMB & Ors, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs

CX1 & Ors, R (on the application of) v Secretary of State for Defence & Anor

FMA & Ors v Secretary of State for the Home Department

Andrew Hale-Byrne v Secretary of State for Business and Trade & Anor

B4 v Secretary of State for the Home Department