AHK and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 07 June 2013 |
| Neutral Citation | [2013] EWHC 1426 (Admin) |
| Docket Number | Case Nos: CO/1076/2008, CO/8559/2010, |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 June 2013 |
[2013] EWHC 1426 (Admin)
Mr Justice Ouseley
Case Nos: CO/1076/2008, CO/8559/2010,
CO/8598/2008 & CO/4391/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
(1) Ms Amanda Weston (instructed by Bates Wells & Braithwaite Solicitors for AHK 1 st Claimant
(2) Mr Hugh Southey QC and Mr Barnabas Lams (instructed by Scudamores Solicitors) for AM 2 nd Claimant
(3) Ms Stephanie Harrison QC and Mr Edward Grieves (instructed by Fountain Solicitors) for AS 3 rd Claimant
(4) Mr R de Mello (instructed by Jackson Canter Solicitors) for FM 4 th Claimant
Mr James Eadie QC, Mr Charles Bourne and Mr Paul Greatorex (instructed by Treasury Solicitors) for the Defendant
Miss Judith Farbey QC (instructed by SASO) Special Advocate
Hearing dates: 22 April 2013
The background to this judgment is set out in a judgment I handed down on 2 May 2012, [2012] EWHC 1117 (Admin), the first paragraph of which is as follows:
"There are over forty cases currently before the Administrative Court in which Claimants are seeking judicial review of decisions of the Secretary of State for the Home Department refusing to grant them naturalisation as British citizens under section 6 of the British Nationality Act 1981. The refusals have been on the grounds that the SSHD was not satisfied that the applicant was of good character. However, the common feature of the cases is that few or, occasionally, no reasons have been given as to why the Secretary of State was not so satisfied. She has explained that to give more reasons would be harmful to national security. Likewise, she is not willing to disclose documents upon which she relied in reaching her decisions. This judgment concerns a directions hearing which I held in four selected naturalisation cases which raised the question of whether and if so in what circumstances and with what consequences a Closed Material Procedure, CMP, could be held where issues of national security arose."
I said at paragraphs 23–24:
"23. The essence of the various Claimants' grounds is that, before any adverse decision is made on an application for naturalisation, the applicant should be told of the SSHD's areas of concern so that they can be addressed as far as possible. After an adverse decision is made, the applicant should be told the reasons and basis for the refusal of naturalisation, or at least sufficient of them, so that he can respond effectively to them. The absence of sufficient information at either stage makes the refusal unfair. The essential and immediate purpose of the proceedings is to obtain a remedy in respect of the absence of sufficient notice of the areas of concern and of the reasons to enable them to be responded to effectively. That can be put as a claim for declarations that the refusals are unfair, in breach of natural justice and in other ways too, on the basis that fairness required greater disclosure. The cases are far more about the fairness of the procedure thus far adopted by the SSHD than about the substantive merits of a decision the basis for which the Claimant has not been told much about. Disclosure is effectively the substantive relief.
24. One of the matters of concern to the Claimants is that they are not in a position to challenge the decisions on other traditional Wednesbury grounds since they do not know what the bases for the decisions were. They would not, normally, expect at this stage of the argument, when the grounds for refusal are known only in the most general terms, that they could succeed in obtaining an order quashing the refusals on their substantive merits, let alone an order that naturalisation be granted."
I concluded that a PII process should be the next step in the proceedings, since that was the means whereby the Court could satisfy itself that there was a proper basis for the claim to PII, before it considered whether disclosure should nonetheless be ordered. I set out the approach to be adopted in taking that decision. I also concluded that the PII process should be the means whereby evidence, inadmissible because it had been obtained by torture of a third party, should be excluded from the Court's consideration.
I considered and rejected an argument from Ms Harrison for AS, to which Mr de Mello for FM added a footnote, that the fact that human rights, Article 8 ECHR in particular, were or might be engaged, would be relevant to the way in which the PII balance was struck. I also rejected her argument that the upshot of the PII process had to be that the Claimants knew sufficient of the reasons or concerns so as to be able to answer them, and that the protected public interest could not prevail over that.
I rejected the argument of the SSHD that there should then be a closed material procedure, CMP, since I concluded that the decision of the Supreme Court in Al Rawi and Others v Security Service [2011] UKSC 34, precluded the judicial creation of such a procedure. Nor could such a procedure be undertaken if one or both parties were to consent. The absence of a CMP could have no effect on the way in which the PII process was undertaken or the balance struck.
I also considered what would be the state of proceedings after the conclusion of the PII process, and the disclosure of what had been ordered to be disclosed of the areas of concern before the naturalisation decision was taken, and of the reasons for the decision when actually taken. The issues over whether the duty of fairness implied into the British Nationality Act 1981 required more disclosure of the areas of concern or reasons would have largely been concluded. There might be an issue over whether the disclosure of material showed that there had been unfairness in the earlier decision, but the real issue would be over the effect on the substantive challenges to the decisions based on the material already disclosed or disclosed pursuant to the PII process. In paragraphs 55–56, I said this:
"55. Before turning to the submissions about CMP, I add two observations. The ordinary principles of common law fairness, implied into the 1981 Act, cannot require the SSHD to ignore relevant material on the grounds that it could not be disclosed in Court and in consequence grant naturalisation despite being satisfied that the applicant was not a person of good character. That would first require the SSHD to act contrary to the public law duty, implicit in the Act, to have regard to all material considerations; see A (No 2) [2006] 2 AC 221. Second, it would require her to grant naturalisation when she was satisfied that a person was not of good character, contrary to what he express terms of the Act require.
56. The claim to PII is a Ministerial duty; see paragraphs 127 and 146 of Al Rawi; Lords Mance and Clarke respectively. Parliament cannot rationally be taken to have legislated by implication that the SSHD had to choose between breaching her duty to protect national security in order to defend her decision, or to grant naturalisation to applicants who she was satisfied were not of good character. It would require the clearest legislative language to impose so dire and dangerous a dilemma. It is idle to suppose that Parliament would be unaware that the SSHD might have to take into account information, sensitive on national security grounds, which was relevant to her judgment of whether an applicant for naturalisation was of good character. The Court would have already ruled that the interests of national security required that the undisclosed material should remain undisclosed. The lack of full disclosure of areas of concern would have been justified to and upheld by a judge. An absence of full or any reasons for the decision in those circumstances could not permit the inference that there were no or no satisfactory reasons. Article 6 does not require such a result."
There were three possibilities in relation to the substantive hearings. I rejected the notion that the Court could fairly review the substantive lawfulness of the decision, since it would not have all the material upon which the Secretary of State as decision-maker relied. The absence of the complete material would have been the result of a judicial decision in the PII process. I could not see how the Claimants could win if the SSHD confirmed that she had relied on material she had not been ordered to disclose. In paragraph 58, I said:
"If the SSHD gives evidence that there were good reasons and a sound relevant basis for her decision, having considered the Claimant's representations, which she could not further disclose, it would be impossible for the Court fairly or reasonably to hold that she was wrong in saying that. The Claimant would have no prospect of persuading the Court to the contrary. It is not so much that the case is untriable; it can be tried. It is simply that the evidence means that the Claimant cannot win. So there is no point in it going to trial."
This was akin to the position in Carnduff v Rock and Chief Constable of West Midlands Police [2001] EWCA Civ 680, [2001] 1 WLR 1786.
It could not be right for the SSHD to lose for the reasons I gave in paragraph 60:
"For the same reasons, there is really no second possibility that the SSHD must lose. The Court cannot require the SSHD either to disclose material harmful to national security in order to prove the lawfulness of her conclusion that the Claimant was not of good character, when the Court itself had decided against ordering...
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