IG, R (On the Application Of) v The Special Immigration Appeals Commission

Abuse of process is assessed through a broad, merits-based evaluation of all the circumstances, including the public and private interests engaged. The fact that an issue was previously considered, or that a later argument resembles a collateral attack, does not make its reconsideration abusive where the proceedings, decisions or material circumstances have materially changed. A tribunal may adopt a pragmatic wait-and-see approach where it can revisit relevance if circumstances change. Such an approach is not unlawful merely because the issue might be reconsidered later.

The claimant sought permission to apply for judicial review of a decision by the Special Immigration Appeals Commission concerning proceedings under section 2D of the Special Immigration Appeals Commission Act 1997. The Secretary of State had withdrawn reliance on disputed information in earlier proceedings, after SIAC had ordered disclosure of a gist. Following reconsideration of the nationality applications, new decisions were made and fresh SIAC proceedings commenced.

The Special Advocates argued that it was an abuse of process for the Secretary of State to contend that the disputed information was irrelevant, relying on Henderson v Henderson and Johnson v Gore Wood. SIAC rejected that argument and concluded that the information was not relevant. The issue before the High Court was whether those conclusions disclosed any reasonably arguable error of law.

1. Permission refused. The grounds of challenge were not reasonably arguable.
2. Abuse of process, as explained by Lord Bingham in Johnson v Gore Wood [2002] 2 AC 1, requires a broad, merits-based assessment of the public and private interests and all the circumstances. There is no hard and fast rule that a matter is abusive merely because it could have been raised earlier.
3. SIAC was entitled to conclude that it was not manifestly unfair to allow the Secretary of State to revisit the relevance of the disputed information. The earlier and later proceedings concerned different decisions. The Secretary of State’s reconsideration had excluded the disputed information, and one of the earlier bases for disclosure had consequently fallen away. These were material changed circumstances, even though the later argument could be characterised as a form of collateral attack.
4. SIAC was not required to treat the sensitivity of the disputed information as irrelevant to the abuse-of-process issue. Nor was its pragmatic decision to permit the Special Advocates to seek reconsideration of relevance if circumstances changed unlawful. That approach disclosed no error of law.
5. The application for permission to apply for judicial review was refused.

First-instance renewed application for permission to apply for judicial review. The High Court refused permission.