Prince Harry visa news: US accused of ‘stonewalling’ after denying release of Duke of Sussex visa records

Mr Bardo argued last week that sufficient coverage from mainstream US media was required for a request to be expedited. He mentioned outlets such as The New York Times, The Washington Post, The Wall Street Journal and the TV networks.

Heritage lawyer Samuel Dewey meanwhile argued in front of Judge Carl Nichols that DHS regulations simply say “media” without specifying where the outlets are based.

Mr Dewey told The Independent after the hearing on 6 June that “you can’t define mainstream. That’s almost absurd in this context. So as a policy matter, that is a very alarming statement for the press and for transparency for the administration”.

Nile Gardiner, the director of the Margaret Thatcher Center for Freedom at the foundation, added: “I do find it astonishing that the British press is referenced as obscure.”

“These are big publications with a wide global reach including millions of Americans who read these newspapers and I find it absolutely astonishing this description today [that there’s] some media that actually count and matter and others that do not. That is an extraordinary statement to make and absolutely unacceptable,” he added.

At the hearing last week, the department argued that an injunction to force DHS to expedite the request shouldn’t go ahead as the foundation hasn’t shown how they will suffer irreparable harm if the information isn’t shared.

Representing the government, Assistant US Attorney John Bardo argued on 6 June that it wouldn’t make a difference when the request was handled, even if the response came a year from now.

The Heritage Foundation said the interest in Prince Harry’s immigration status would decrease over time.

Large parts of the hearing centred on the amount of media attention on Prince Harry and his supposed drug use, which some legal experts say would have barred him from entering the US.

The Heritage Foundation has suggested that the federal government may have been engaging in favouritism and may have turned a blind eye to actions, which may have caused the authorities to reject the visa application. The foundation also argued that the public should be allowed to see Prince Harry’s immigration records to see if he may have provided untruthful answers.

The Heritage Foundation’s request for a preliminary injunction was withdrawn as moot on 14 June following the reply from DHS.

“We can neither confirm nor deny the existence of any records relating to your request under Section 3, pursuant to FOIA Exemptions (b)(6) and (b)(7)(C). Exemption (b)(6) exempts from disclosure personnel or medical files and similar files the release of which would cause a clearly unwarranted invasion of personal privacy,” DHS wrote, according to Inner City Press.

“The privacy interests of the individual in the records you have requested outweigh any minimal public interest in disclosure of the information. Exemption (b)(7)(C) excludes records or information compiled for law enforcement purposes, but only to the extent that the production of such materials could reasonably be expected to constitute an unwarranted invasion of personal privacy,” the agency added. “To the extent records exist, this office does not find a public interest in disclosure sufficient to override the subject’s privacy interests.”

Judge Nichols is now set to decide how to proceed with the case.

Heritage lawyer Samuel Dewer told the New York Post that the reply from DHS “shows an appalling lack of transparency by the Biden Administration”.

“The Department of Homeland Security’s efforts to stonewall the Heritage Foundation’s Freedom of Information request are unacceptable, and we will be contesting their position,” he added. “We expected to have to fight every step of this case in federal court and will continue to press for transparency and accountability for the American people.”

The director of the Heritage Foundation’s Oversight Project, Mike Howell, submitted the request on 8 March, requesting records from DHS, Customs and Border Protection, US Citizenship and Immigration Services, and the Office of Biometric Identity Management.

Ahead of the hearing on 6 June, only DHS had yet to respond. The other three agencies rejected the requests.

Legal experts predict that the judge is unlikely to side with the foundation’s argument because immigration documents contain a wealth of personal information about the applicant and so ordering the release of Prince Harry’s would set a potentially dangerous precedent.

Stacy Cozart Martin, an immigration lawyer and professor at Case Western Reserve University, told the BBC: “Those applications have a tonne of personal information on them. It would be very, very shocking, and I think a little frightening, if that were to be released to the public. Not only for him, but as a whole.”

DHS previously said the think-tank had failed to demonstrate the necessity of releasing the document and questioned whether there was truly “widespread” public interest in the matter.

Prince Harry’s spokespeople have so far said they will not comment “at this time”.

The case opened in a federal court in Washington DC on Tuesday 6 June, with Judge Carl Nichols ruling that the Biden administration had one week to decide how it would handle the foundation’s FOIA request. That response, rejecting the request, came on Tuesday and was first reported the following day, 14 June.

Representing the US government, assistant US attorney John Bardo argued in court on 6 June that sufficient coverage from mainstream American media was required for a request to be expedited.

Mr Dewey countered that DHS regulations simply say “media” without specifying where the outlets are based, pointing out that news websites have a global audience online these days, no matter where their parent company might be situated.

“You can’t define mainstream,” he told The Independent on 6 June. “That’s almost absurd in this context. So as a policy matter, that is a very alarming statement for the press and for transparency for the administration.”

If the duke’s application were to be published and reveal that his answers contradicted his later public revelations about his dalliances with drugs, the case would call into question the Biden administration’s handling of the visa application process, the organisation contends.

In a statement ahead of DHS’s response, the Heritage Foundation said that it hopes to determine whether “celebrity elites” such as the Duke of Sussex were likely to receive preferential treatment and whether the DHS was operating “fairly – without fear or favour”.

Speaking to Sky News, its counsel Sam Dewey said: “The [US] government has taken the position that ‘there’s nothing to see here’.

“We’ve taken the position that no, if you look through all the details of his admissions, you look at the drug laws, you look at the laws on admissions, there’s a real serious question as to whether or not he should have been admitted.

“The alternative, if he didn’t disclose the drug use – then there’s a very serious question as to whether or not proceedings should have begun against him for that.”

The think-tank insists the application is of “immense public interest” in light of the duke’s subsequent confessions of past illegal drug use as a teenager and as an adult, which he made in the Netflix series Harry & Meghan in his recent memoir Spare.

The duke wrote in Spare that he had taken cocaine but found it “wasn’t much fun, and it didn’t make me particularly happy, as it seemed to make everyone around me” and said of smoking cannabis while still a pupil at Eton, the prestigious Berkshire private school: “Marijuana is different, that actually really did help me.”

A US DS160 visa application form explicitly asks the applicant to answer truthfully to the questions, “Have you ever been a drug abuser or addict?” and, “Have you ever violated, or engaged in a conspiracy to violate, any law relating to controlled substances?”

The director of the Heritage Foundation’s Oversight Project, Mike Howell, submitted the request on 8 March, requesting records from DHS, Customs and Border Protection, US Citizenship and Immigration Services, and the Office of Biometric Identity Management.

Ahead of the hearing on 6 June, only DHS had yet to respond. The other three agencies rejected the requests.

The Heritage Foundation’s request for a preliminary injunction was withdrawn as moot on 14 June following the reply from DHS.

“We can neither confirm nor deny the existence of any records relating to your request under Section 3, pursuant to FOIA Exemptions (b)(6) and (b)(7)(C). Exemption (b)(6) exempts from disclosure personnel or medical files and similar files the release of which would cause a clearly unwarranted invasion of personal privacy,” DHS wrote, according to Inner City Press.

“The privacy interests of the individual in the records you have requested outweigh any minimal public interest in disclosure of the information. Exemption (b)(7)(C) excludes records or information compiled for law enforcement purposes, but only to the extent that the production of such materials could reasonably be expected to constitute an unwarranted invasion of personal privacy,” the agency added. “To the extent records exist, this office does not find a public interest in disclosure sufficient to override the subject’s privacy interests.”

Judge Nichols is now set to decide how to proceed with the case.

Heritage lawyer Samuel Dewey told the paper that the reply from DHS “shows an appalling lack of transparency by the Biden Administration”.

“The Department of Homeland Security’s efforts to stonewall the Heritage Foundation’s Freedom of Information request are unacceptable, and we will be contesting their position,” he added. “We expected to have to fight every step of this case in federal court and will continue to press for transparency and accountability for the American people.”