AHK & Others v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 02 May 2012 |
| Neutral Citation | [2012] EWHC 1117 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1076/2008, CO/8598/2008, CO/4391/2007 & CO/8559/2010 |
| Date | 02 May 2012 |
[2012] EWHC 1117 (Admin)
Mr Justice Ouseley
Case No: CO/1076/2008, CO/8598/2008, CO/4391/2007 & CO/8559/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Hugh Southey QC and Amanda Weston (instructed by Bates Wells and Braithwaite) for AHK, Claimant
Mr Hugh Southey QC (instructed by Scudamores Solicitors) for AM Claimant
Ms Stephanie Harrison and Mr Edward Grieves (instructed by Tyndallwoods Solicitors) for AS, Claimant
Mr Ramby de Mello and Mr Tony Muman (instructed by Jackson Canter Solicitors) for FM, Claimant
Mr James Eadie QC, Mr Charles Bourne and Mr Paul Greatorex (instructed by Treasury Solicitors) for the Defendant
Ms Judith Farbey QC (instructed by SASO) Special Advocate
Hearing dates: 24 and 25 January 2012
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.
Three of these four Claimants, but not AM, plus four others, were before the Court of Appeal in R(AHK) and Others v SSHD [2009] EWCA Civ 287, [2009] 1WLR 2049. That case considered the circumstances in which it was appropriate for a Special Advocate to be appointed for the purposes of making submissions to the Court on what documents should be disclosed to the Claimants, instead of the Court considering them on its own. Subsequently, on 23 February 2010, Blake J decided after written submissions that some cases required a Specially Appointed Advocate, SAA, to assist the court in dealing with further disclosure; in others, including FM, he concluded that a sufficient gist had already been given.
In July 2010, the Supreme Court granted permission to appeal from the Court of Appeal in Al Rawi and Others v Security Service [2011] UKSC 34, [2011] 3 WLR 388. The Claimants obtained permission to amend their grounds to take such points as might advance their claims in the light of the decision in that case. I am not concerned here with the various directions aimed at making progress with at least some of the cases in the meantime. On 28 July 2011, shortly after the Supreme Court's decision in Al Rawi, most of the naturalisation claims were stayed pending final determination of a selection of cases, chosen as representative of the range of issues arising from the whole array, with a directions hearing to be arranged to consider the issues arising out of Al Rawi. In December 2011, it became apparent that there were quite significant differences between the parties over the effect of Al Rawi, how it might relate to AHK, and to the Orders already made by Blake J. The directions hearing is intended to deal with those issues.
The claims as they currently stand
AHK seeks the quashing of the decision and the provision of sufficient of the reasons and information upon which the SSHD relied to give him a fair opportunity to respond to it. He was simply told that his application for naturalisation was refused because of his association with Iranian elements hostile to British national interests.
The essence of AHK's claim is that the SSHD had acted unfairly, and in breach of Article 6 ECHR, in refusing to disclose sufficient information as to the factual basis of her decision for the Claimant to have a reasonable opportunity to make representations about it. She had failed to explain why the provision of adequate information would breach national security to the extent necessary to justify a departure from the rules of fairness. She had failed to disclose what material already in the public domain or otherwise disclosable had been taken into account, and had failed to balance the interests of the individual against the interests of the state. AHK also now raises a claim that the decision breaches Article 8 since it harms his reputation without affording him the means to counter the information which underlies it.
By amendment, AHK also claims that, in determining those issues, the court could not depart from the fundamental principle that the Claimant should see all the material before the Court, by adopting a CMP for a substantive hearing. For the purposes of judging whether Public Interest Immunity, PII, prevented disclosure, the Court could obviously see material which the Claimant did not.
AS also contends that the refusal of his application was unfair and flawed by lack of reasons; Article 8 is said to be engaged and damages are sought for negligence, misfeasance in public office and for breaches of the Human Rights Act 1998. Although he was initially told that it would be contrary to the public interest for the SSHD to give reasons for the refusal of naturalisation beyond that it had been refused on the grounds of national security, a letter of 9 January 2012 said 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 has been involved in a range of activity for the purpose of advancing an Islamist extremist agenda". Ms Harrison on his behalf submitted that this late and unexplained change still failed to provide adequate reasons. She emphasised that the challenge was to the failure to give adequate reasons and to comply with the duty of fairness. AS raised the same point as AHK in relation to CMP by amendment.
FM makes the same basic claim as AHK, although he also seeks, perhaps optimistically, a mandatory order requiring the SSHD to grant him naturalisation. The reasons for the refusal are no more elaborate than that he "has openly preached anti-western views and voiced sympathy with Usama Bin Laden (UBL) at the Hatherley Street Mosque in Liverpool". He alleges that Articles 9 and 14 ECHR were breached and that the refusal constituted unlawful racial discrimination.
AM makes the same claim as AHK and AS, expressed in different language. But he has been told nothing other than that naturalisation has been refused on the grounds of character and that it would be contrary to the public interest to give reasons. His claim included the CMP issue from the outset. All have permission to apply for judicial review.
The purpose of the directions hearing
The purpose of the directions hearing, as I have said, was to decide how the cases should proceed in the light of the decision of the Supreme Court in Al Rawi. These four cases were selected as representative of those challenging naturalisation decisions, in which the SSHD defends the adequacy of the reasons for the decisions, and resists further disclosure in the light of what she contends are national security implications. The SSHD contended that I should order that the trials proceed by some form of CMP, involving SAAs to act for the Claimants in hearings dealing with sensitive material which would not be disclosed to the Claimants themselves. Alternatively, she contended that I should hold that such a procedure would be followed if a Claimant in any particular case were to agree that that should happen. The Claimants contended that I should direct a PII hearing in each case; some argued that no CMP could be held at all; others, while opposing such a procedure, argued that it could be held in certain circumstances, to prevent the claim being struck out, but only with a Claimant's consent. No decision on that could be made by a Claimant until after the PII hearing. There was considerable disagreement over what the consequences would be of not having a CMP, and whether that was an issue which I needed to decide at all, rather than waiting and seeing what the position was in the light of the outcome of the PII hearings.
It eventually became clear that the SSHD was not quite contending for a CMP of the scope which the Security Service had failed to persuade the Supreme Court to institute for the purposes of an ordinary civil claim for damages. Both sides here agreed that PII hearings were the necessary next stage in the proceedings, whatever my decision on the CMP issue.
The parties were unsure as to the process which underlay the Order of Blake J on 23 February 2010; and it was agreed that all the claims should proceed through a conventional PII procedure. So the cases have reached the stage where a PII hearing needs to be held, which will decide what disclosure or gisting can be given on the conventionally applicable principles for a PII claim.
The duty of fairness and its relationship to PII
It is necessary, first, to say something about the nature of the claims themselves, since this can affect decisions in the PII hearings and the consequent trials.
Sections 6(1) and 6(2) of the British Nationality Act 1981 p...
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