MH and Others v Secretary of State for the Home Department (Rev 1)

Hearing date: 24 th September 2008

Introduction

There is before the court an application for directions for the hearing of a number of applications for judicial review of decisions by the Secretary of State refusing applications for naturalisation as British citizens. Anonymity orders have been made in all cases by consent having regard to the potential damage to the claimants' reputation and private life that would arise from the repetition of the untested allegations made in respect of them.

The common theme between each of the cases is that the defendant Secretary of State for the Home Department has concluded that it is not possible to give a detailed explanation for the reasons refusing the application. In some of the cases, information has been given of an association with either named individuals who have notoriety in the context of Islamic extremism, in other cases a general allegation of undesirable nexus with groupings considered as hostile to the UK, its citizens and armed forces is indicated, in yet another case no reasons are given at all. In each case it is intimated that the requirements of national security prevent further disclosure. The outline histories and reasons for the decision are set out in tabular form as follows:-

All the claimants have been refused British citizenship on the grounds that the Secretary of State was not satisfied that they were of good character as required by Schedule 1 to the British Nationality Act 1981 (BNA). In all other respects the claimants qualify for naturalisation. They are UK residents who have been given indefinite leave to remain and have lawfully resided here for the requisite number of years and many for much longer periods. Most have been recognised as refugees in the country, sometimes as a result of connection with the same groups that are used to deny them citizenship. None have been refused refugee status on national security grounds. Nearly all have close family: spouses and dependent children who either are British citizens or have been granted this status at the same time as the claimant has been refused it. None have been convicted of any criminal offence in the UK or elsewhere; none are facing deportation or other proceedings to deprive them of their status as refugees or UK residents. None are, or have been, subject to applications for control orders. As far as the court is aware there are no pending criminal or related proceedings outstanding against the claimants, and there has been no indication of a police investigation that might lead to such proceedings in the foreseeable future. The claimants have not themselves disclosed any discreditable conduct or connections that might have led to an adverse conclusion; all deny any association with terrorism or Islamic extremism.

All the claimants rely as a starting point on the observations of the Court of Appeal in R v SSHD ex p Fayed [1998] 1 WLR 76 where Lord Woolf concluded that judicial review would be available as a remedy where a decision refusing naturalisation was taken in breach of the common law requirements of natural justice or fairness, even where the statutory regime at the time did not require the Secretary of State to give reasons for his conclusion and where any decision was said not to be capable of a legal challenge on the merits. In that case the court recognised that common law fairness was engaged in part as a result of the potential damage to reputation.

The claimants submit that if this was the outcome in a challenge under the unpromising regime of the BNA 1981 before amendment, the principles of Fayed are even more relevant to the present cases where the amendment made by the Nationality Immigration and Asylum Act 2002 has removed the statutory restraint on the giving of reasons. It is clear that at common law the requirements of fairness are flexible and take into account the context, the interests at stake, and the practicalities of the case.

The defendant however points out that Lord Woolf MR at 777A-B also recognised that there may be a class of case where national security is engaged where the imperative requirements of such a compelling public interest prevent the disclosure of information that would otherwise be communicated in order to make the decision fair. These cases, it is submitted, are pre-eminent examples of what Lord Woolf had in mind and, therefore, once the court is satisfied that national security is indeed engaged and prevents any further disclosure than that which has already been made, this concludes the judicial review proceedings in favour of the defendant.

The issue on which these cases were listed for directions is the extent to which, if at all, the tension between national security and the common law duty of fairness can be resolved by the appointment by the Attorney General at the request of the court of specially appointed advocates (SAA). I use the terminology adopted in the case of R (Roberts) v SSHD [2005] 2 AC 738 so as to contrast these common law discretionary arrangements from the statutory appointments made under the Special Immigration Appeals Commissions Rules.

The appointment of special advocates and SAAs

It is well known that from the coming into force of the Special Immigration Appeals Commission Act 1997, the UK has a statutory scheme in the immigration context for the appointment of a special advocate to represent in closed session the interests of a person facing adverse Home Office action. The Act as originally drafted also embraced EEA cases but these are now referred to the Commission under Regulation 31 of the Immigration (EEA) Regulations 2000. The essential function of the Special Advocate (SA) is defined by the SIAC Rules 2003 .It includes first considering whether any material which is claimed cannot be disclosed for national security grounds can in fact be disclosed in one form or another; second whether the...