AHK and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards |
| Judgment Date | 21 February 2014 |
| Neutral Citation | [2014] EWCA Civ 151 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: T3/2013/1774(A); T3/2013/1778(A); T3/2013/1815(A)(B); T3/2013/1893(A) |
| Date | 21 February 2014 |
[2014] EWCA Civ 151
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Ouseley
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Case Nos: T3/2013/1774(A); T3/2013/1778(A); T3/2013/1815(A)(B); T3/2013/1893(A)
The Queen on the application of
and
Amanda Weston (instructed by Bates Wells & Braithwaite) for AHK and AS
Hugh Southey QC and Barnabas Lams (instructed by Wilsons Solicitors LLP) for AM
Ramby de Mello (instructed by Broudie Jackson Canter) for FM
Rory Phillips QC and Julian Blake (instructed by The Treasury Solicitor) for the Secretary of State
The four appellants (AHK, AM, AS and FM) all have permission to appeal against orders made by Ouseley J in the Administrative Court by which, or as a result of which, their claims for judicial review were dismissed. The central issue before me is whether the appeals should be stayed pending pursuit by the appellants of an alternative remedy now available to them by way of applications to SIAC. A hearing of that issue, at which all parties were represented, took place on 11 February 2014. At the end of the hearing I reserved my judgment, in part because we had run out of time but principally in order to enable me to give proper consideration to written submissions and authorities relied on by Mr Southey QC which, through no fault of his, had not been received by me in advance of the hearing.
The background is that each of the appellants applied for naturalisation as a British citizen but had his application refused by the Secretary of State on the ground that he did not meet the "good character" requirement. In each case the Secretary of State declined to give detailed reasons for the refusal, adopting the position that disclosure of the reasons would be contrary to the public interest. AHK was simply told that his application for naturalisation was refused because of his association with Iranian elements hostile to British national interests. AM was told nothing beyond that naturalisation had been refused on the grounds of character and that it would be contrary to the public interest to give reasons. AS was initially told that it would be contrary to the public interest to give reasons beyond that naturalisation had been refused on grounds of national security; but he was subsequently told that it had been refused because there was reason to believe that he had made statements of an Islamist extremist nature to a number of individuals and had been involved in a range of activity for the purpose of advancing an Islamist extremist agenda. FM was told that the reasons for refusal were that he had openly preached anti-Western views and voiced sympathy with Usama Bin Laden at the Hatherley Street Mosque in Liverpool.
Each appellant brought a claim for judicial review to challenge the refusal of his application for naturalisation. Their claims came to be joined, numerous other claims of a similar nature being stayed behind them.
The judgments under appeal
I can pass over the earlier procedural stages and pick the matter up with the judgment of Ouseley J handed down on 2 May 2012. In that judgment Ouseley J held, in the light of the decision of the Supreme Court in Al Rawi v Security Service & Others [2011] UKSC 34, [2012] 1 AC 531 that there could be no closed material procedure even by consent in judicial review proceedings, save to the extent inherent in the PII process. He directed that the cases should therefore proceed to a PII hearing. Effect was given to the judgment by an order sealed on 22 June 2012.
The PII hearing took place on 25 October 2012. By an order of that date the judge upheld the Secretary of State's PII certificates and directed that, save for certain wording agreed between the Secretary of State and the Specially Appointed Advocate in the case of FM, there was to be no further disclosure to the appellants.
A further hearing then took place to decide what was to happen to the four cases. Somewhat to the judge's surprise, as he observed in the judgment he handed down on 7 June 2013, a variety of further submissions were raised by the appellants at that hearing as to why further disclosure was required in law. The judge rejected those submissions. He repeated the view he had expressed in May 2012 that in the absence of full disclosure of the reasons for the Secretary of State's decision the appellants were bound to lose their claims. The only appellant who sought a specific determination of the substantive claim on its merits was FM. The judge dismissed the claim, stating that FM simply could not show that the decision was flawed. Effect was then given to the judgment by an order sealed on 26 June 2013, dismissing all the claims.
The grounds of appeal
The judge granted permission to appeal on points arising from his judgments of 2 May 2012 and 7 June 2013. The appellants' grounds of appeal raise in broad terms the following issues, though they are put in different ways by the different appellants:
i) The appellants are entitled to a core minimum level of disclosure of the reasons for refusal of citizenship and an effective opportunity to rebut the allegations which underlie the assertion that they are not of good character.
ii) The judge was wrong in his approach to the PII exercise in circumstances where the essence of the case against the appellants had not been disclosed and no closed material procedure was available.
iii) The judge was wrong to find that the upholding of the PII claims meant that the appellants were bound to lose and that their claims should be dismissed.
iv) The judge was wrong to find that there was no interference with, or breach of, the appellants' ECHR rights, in particular under article 8 though articles 9 and 10 are also in play.
There is an application on behalf of AS to amend his grounds of appeal. The points he seeks to raise are similar in substance to points already advanced by others. Mr Phillips QC for the Secretary of State indicated that there would be no objection to the amendment if the appeals were not stayed.
In opposing a stay Mr Southey advanced for the first time a line of argument going beyond AM's existing grounds of appeal and without any formal application to amend. Although objection was made by Mr Phillips to such points being advanced in this way at this stage, I think it important to take the argument into account in considering whether a stay should be ordered. I come back to this below.
The alternative remedy in SIAC
At about the same time as Ouseley J granted permission to appeal there came into force provisions of the Justice and Security Act 2013 ("the 2013 Act") providing an alternative procedure for challenges against certain types of decision including the naturalisation decisions in issue in the present proceedings. Section 15 of the 2013 Act inserted new provisions into the Special Immigration Appeals Commission Act 1997 ("the 1997 Act") empowering the Secretary of State to certify that the decision was based on information that should not be made public in the interests of national security and, where such a certificate was made, entitling the person concerned to challenge the decision in SIAC. Specifically, new section 2D of the 1997 Act relates to naturalisation and citizenship decisions. It includes provisions to the effect that SIAC is to apply judicial review principles in determining such applications and has all the remedies that would be available in judicial review proceedings. The Justice and Security Act 2013 (Commencement, Transitional and Saving Provisions) Order 2013 ("the 2013 Order") contains provisions empowering the Secretary of State to certify decisions made before the 2013 Act came into force.
There was a delay in rendering an application to SIAC an effective route of challenge because it was only at the end of November 2013 that the relevant SIAC procedure rules came into force. Now that those rules are in place, however, challenges to naturalisation decisions certified by the Secretary of State can be pursued in the normal way in SIAC with the benefit of a closed material procedure.
On 6 February 2014, after a considerable further delay, the Secretary of State certified under section 2D of the 1997 Act each of the naturalisation decisions in issue in these proceedings, thereby giving the appellants the opportunity to challenge those decisions by way of applications to SIAC notwithstanding that, subject to the present appeals, their judicial review challenges to those decisions have been dismissed. The point is made on behalf of the Secretary of State that certification in these cases is unusual since ordinarily the dismissal of a claim would not allow for a further challenge to the underlying decision, but she has certified out of fairness to the appellants.
By virtue of rule 8 of the SIAC (Procedure) Rules 2003 as amended, if the appellants wish to avail themselves of the opportunity now given to them to apply to SIAC, notice of their applications must be given not later than 10 working days after they have been served with notice of the certification if the appellant is in the United Kingdom and not later than 28 working days if he is outside the United Kingdom. Whilst at the hearing none of the appellants displayed any enthusiasm about the opportunity to make an application to SIAC,...
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