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

In national-security judicial review proceedings involving potentially closed material, preliminary issues must be identified and articulated with particular care. The court should not determine supposedly open-only issues before addressing whether the closed-material procedure under the Justice and Security Act 2013 may be required, unless it is satisfied that no potentially closed material could materially bear on those issues. Fairness requires the defendant to confirm whether relevant closed material exists. A preliminary issue should be treated as purely legal only where it is fanciful that closed material could have any material bearing on it.

The claimant challenged the cancellation of his indefinite leave to remain and an alleged later refusal to reinstate it. The cancellation followed an exclusion direction made while he was outside the United Kingdom. He later returned, claimed asylum, and was granted asylum and five years’ leave to remain after the defendant reviewed the case.

The defendant proposed that several preliminary issues be decided on open material before consideration of an application under section 6 of the Justice and Security Act 2013. The claimant argued that closed material might reveal further grounds of challenge and that the proposed issues could not yet be treated as purely legal. The court therefore considered the proper sequencing of the open and closed procedures.

1. Directions. The court directed the parties to cooperate in bringing forward timetabled proposals for an application under section 6 of the Justice and Security Act 2013.
2. It was legitimate for the defendant to seek to avoid unnecessary public expenditure by identifying preliminary issues capable of disposing of the judicial review on open material. However, both the Administrative Court and SIAC must take particular care that such issues are correctly identified and articulated, since otherwise time spent on them may be wasted: Secretary of State for the Home Department v Smith [2023] EWCA Civ 376.
3. Fairness required the court to address the section 6 question before determining the proposed preliminary issues. The defendant should be directed to confirm whether potentially closed material was relevant to the eventual issues. The court would need to be satisfied that the issues were entirely legal in nature, so that it was fanciful that closed material could materially affect them.
4. The proposed issue concerning the alleged 2021 refusal to grant or reinstate indefinite leave could not be characterised with the requisite confidence as purely legal. The legality of that decision might require examination of the material underlying the earlier cancellation decision.
5. The claimant’s submission that further disclosure might permit amendment of his grounds was not, by itself, a reason to prevent an open preliminary issue from being decided where success would necessarily dispose of the judicial review. That consideration did not resolve the present case because the proposed 2021 issue might depend on closed material.
6. The claimant’s description of a possible “historic injustice” was inaccurate. The relevant concept, if established, would be historical in nature, as explained in 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).