Chain wen Wei & anor v The Minister for Justice & anor (Approved)

Factual and Procedural Background

The Applicants are two Malaysian nationals who arrived in The State on 12 December 2020 to commence a full-time English-language course scheduled for 4 January 2021. Because of the Covid-19 pandemic, the course had shifted to on-line delivery. Immigration officers refused them leave to land under s. 4(3)(j) of the Immigration Act 2004, concluding that their presence would be “contrary to public policy” in light of Government guidelines issued on 27 October 2020 restricting entry for students whose courses were delivered remotely.

The Applicants sought judicial review of the refusals. The High Court (Judge Burns) upheld the decisions on 23 March 2021, interpreting “public policy” as a concept distinct from “national security.” The Court of Appeal (Judge Faherty) dismissed the Applicants’ appeal on 2 June 2023. The Supreme Court subsequently granted leave to appeal on the proper construction of “public policy” in s. 4(3)(j) and has now delivered the present judgment.

Legal Issues Presented

1. Whether the phrase “public policy” in s. 4(3)(j) of the Immigration Act 2004 is a concept separate from “national security” or is to be construed narrowly as linked to, and informed by, national security concerns.
2. If “public policy” bears the narrower, security-linked meaning, whether the Applicants’ presence could lawfully be refused on that ground.

Arguments of the Parties

Applicants' Arguments

• “Public policy” in s. 4(3)(j) must be read conjunctively with “national security,” taking its meaning from companion terms and EU law, so that refusal may occur only where the individual poses a genuine and sufficiently serious threat to fundamental interests of society.
• The Government guidelines of 27 October 2020 had no statutory foundation and could not expand the statutory ground for refusal.
• They posed no threat to national security or public policy in the narrow sense, making the refusals unlawful.

Respondents' Arguments

• “Public policy” and “national security” are separate, stand-alone grounds; the statutory use of “or” indicates disjunctive meaning.
• The October 2020 guidelines represented a legitimate expression of public policy during the pandemic, justifying refusal.
• The High Court and Court of Appeal correctly applied a broader interpretation consistent with legislative intent.

Table of Precedents Cited

Court's Reasoning and Analysis

The Supreme Court, per Judge Hogan, conducted a contextual analysis of s. 4(3)(j). Three principal considerations guided the Court:

• EU Law Context: Section 2(2) of the 2004 Act preserves EU obligations. Under Article 27 of the Citizenship Directive, “public policy” is narrowly confined to situations posing a serious threat. The Court found it illogical for the same statutory phrase to carry a broader meaning for third-country nationals.
• Textual Interpretation: The Court applied the “rule as to context,” concluding that the conjunction “or” was used conjunctively rather than disjunctively. “Public policy,” therefore, derives content from its proximity to “national security.”
• Structural Considerations: Section 4(3) contains ten distinct refusal grounds. If the legislature had intended a broad, free-standing ground, it would have separated “public policy” into its own sub-paragraph.

Based on these factors, the Court held that “public policy” in s. 4(3)(j) must be interpreted narrowly, encompassing only situations where an individual’s personal conduct constitutes a genuine and sufficiently serious threat comparable to national security concerns. As the Applicants posed no such threat, the statutory ground relied upon was inapplicable.

Holding and Implications

ORDER OF CERTIORARI GRANTED. The refusals of leave to land are quashed.

Direct Implications: The Applicants are no longer barred under the challenged decisions and may seek lawful entry. Broader Implications: The judgment constrains the executive’s reliance on “public policy” under s. 4(3)(j), requiring a security-linked justification and aligning domestic law with EU standards. No entirely new cause of action was created, but the decision narrows administrative discretion in immigration matters.