S2 v The Secretary of State for the Home Department

Where a statutory appeal or review will conveniently determine the factual and national security issues underlying a judicial review claim, the Administrative Court should refuse permission to that extent. It may nevertheless retain and stay the judicial review where discrete public law issues remain and later disclosure or findings may make a challenge arguable.

Whether a person is liable to deportation under section 3(5)(a) of the Immigration Act 1971 depends on the Secretary of State deeming deportation conducive to the public good. It is not a precedent-fact question for the reviewing court. A section 76 revocation of indefinite leave to remain need not await related proceedings, and the court should be especially cautious before granting interim relief which would interfere with that revocation.

The claimant challenged the revocation of his indefinite leave to remain under section 76 of the Nationality, Immigration and Asylum Act 2002. He also had linked proceedings before the Special Immigration Appeals Commission concerning his exclusion from the United Kingdom and refusal of asylum, including the national security case relied on by the Secretary of State.

The claimant argued that he was not liable to deportation, that revocation was inconsistent with the statutory scheme or was an unlawful exercise of discretion, and that the judicial review should be preserved pending SIAC’s determination. He sought interim relief effectively restoring his indefinite leave to remain.

1. Permission and overlapping proceedings. Applying W2 v Secretary of State for the Home Department [2018] EWCA Civ 761, the court should refuse permission insofar as judicial review raises issues more conveniently determined in a statutory appeal or review. SIAC was the appropriate forum for testing the underlying national security case. The judicial review nevertheless raised a distinct legal issue concerning the revocation decision, so the existence of the SIAC proceedings did not itself bar permission.
2. Liability to deportation. Under section 3(5)(a) of the Immigration Act 1971, liability to deportation depended on the Secretary of State’s opinion that deportation was conducive to the public good. It did not depend on an objective precedent fact for the Administrative Court to determine. Secretary of State for the Home Department v Rehman [2001] UKHL 47; [2003] 1 AC 153 confirmed the substantial judgment and policy entrusted to the Secretary of State, subject to ordinary public law review. Bah v Secretary of State for the Home Department [2012] UKUT 00196 (IAC) concerned the former merits-based appellate regime and was of limited assistance.
3. Statutory scheme and discretion. The post-2014 scheme deliberately removed the right of appeal against section 76 revocation, ended statutory suspension of its effects and provided no equivalent transitional protection pending judicial review. The Secretary of State could therefore revoke leave while related proceedings were pending. If she considered the claimant a national security threat and restricted leave better controlled that risk, declining to revoke could itself conflict with the public interest. Her consideration of the claimant’s psychiatric evidence and other personal effects was sufficient; the weight assigned to those matters was for her absent irrationality.
4. Promptness and procedure. Permission was not refused for delay. The claim was brought within three months, the publicly funded and overlapping national security context explained the timing, and no material prejudice was shown. The court observed that CPR 54.5 does not entitle a claimant to wait until the end of the period.
5. Stay and interim relief. Although the current grounds were not arguable, judicial review was flexible enough to defer the permission decision and stay the application pending SIAC’s determination, preserving a possible later challenge. Interim relief was refused. The court could not grant indefinite leave as such; any relief would interfere with or stay the revocation and thereby revive leave. The court should be particularly cautious because Parliament had removed statutory transitional preservation of leave.