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

On an appeal against revocation of indefinite leave to remain, post-decision evidence is generally relevant only if it bears on the statutory decision as made. A revocation decision under section 76 of the Nationality, Immigration and Asylum Act 2002 is ordinarily assessed by reference to facts existing when the decision was made. Article 8 may require a different approach where the revocation is accompanied by a measure that engages Convention rights, such as limited leave with restrictive conditions. Revocation itself does not necessarily engage Article 8. The statutory power is not implicitly limited to cases where deportation is likely to be achieved. A person may remain liable to deportation because deportation is conducive to the public good even where removal is prevented by a legal obstacle.

J1 sought judicial review of a disclosure decision made by the Special Immigration Appeals Commission in his statutory appeal against revocation of his indefinite leave to remain. His leave had been revoked under section 76(1) of the Nationality, Immigration and Asylum Act 2002 because he was liable to deportation but could not then be deported for legal reasons.

The claim challenged SIAC’s approach to post-decision evidence under section 85(4), its interpretation of the statutory power to revoke indefinite leave, and its conclusion that revocation did not engage Article 8 of the ECHR. Permission had been granted on Grounds 1 and 3, while Ground 2 was considered on a rolled-up basis.

1. Ground 1 dismissed. Section 85(4) permits SIAC to consider post-decision evidence only where it is relevant to the substance of the decision under appeal. The decisive question is whether the statutory scheme requires the relevant state of affairs to exist at the decision date. A revocation decision under section 76 is based on events already occurring and involves no forward-looking assessment of the kind found in asylum or human-rights appeals. It must therefore ordinarily be considered by reference to facts existing when the Secretary of State decided to revoke leave. The position may differ where Article 8 is engaged, having regard to the approach in ZZ v Secretary of State for the Home Department.
2. Ground 3 dismissed. Revocation of indefinite leave, without an extant grant of limited leave with conditions, did not engage Article 8 in this case. The court accepted the distinction drawn in R (MS (India)) v Secretary of State for the Home Department: refusal or removal of indefinite leave is distinct from the grant of short-duration leave subject to conditions, which may interfere with private or family life. SIAC had not improperly conflated engagement under Article 8(1) with justification under Article 8(2). Its treatment of the children’s welfare under section 55 of the Borders, Citizenship and Immigration Act 2009 did not require a different conclusion.
3. Ground 2 dismissed. The words “liable to deportation” are defined by section 3(5) of the Immigration Act 1971. They do not import a requirement that there be some prospect of actual deportation. The reasoning in R (George) v Secretary of State for the Home Department confirmed that a person may remain liable to deportation because his presence is no longer conducive to the public good, notwithstanding a legal obstacle to removal. Nor was the power irrational merely because removal might be permanently or indefinitely prevented; future eligibility for indefinite leave remained a matter for the Secretary of State.
4. The judicial review application was dismissed.

First-instance judicial review of a decision of the Special Immigration Appeals Commission. The court dismissed the claim and upheld SIAC’s approach on the three grounds identified.