R (AHK and Others) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Anthony Clarke MR |
| Judgment Date | 02 April 2009 |
| Neutral Citation | [2009] EWCA Civ 287 |
| Docket Number | Case Nos: C4/2008/2747, 2748 CO/4391/07 CO/1076/08 CO/9703/07, CO/8598/08 CIO/8357/07 CO/5651/06 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 April 2009 |
[2009] EWCA Civ 287
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
The Hon Mr Justice Blake
Before : Sir Anthony Clarke Mr
Lord Justice Jacob And Lord Justice Maurice Kay
Case Nos: C4/2008/2747, 2748
2749, 2750, 2751 and 3036
CO/4391/07
CO/1076/08
CO/9703/07,
CO/8598/08
CIO/8357/07
CO/5651/06
Lisa Giovannetti, Charles Bourne and Kate Grange (instructed by the Treasury Solicitor) for the Secretary of State
Amanda Weston (instructed by Bates Wells and Braithwaite) for AHK,
Sanjay Lal (instructed by Dotcom) for GA
Stephanie Harrison (instructed by Tyndallwoods) for AS and AH
Manjit Gill QC and Danny Bazini (instructed by Trott and Gentry) for FT and NT
Rambert de Mello and Tony Muman (instructed by AS Law) for FM
Hearing dates: 17 and 18 February 2009
Sir Anthony Clarke MR:
This is the judgment of the court.
Introduction
These appeals raise a narrow procedural question as to how the court should approach applications for judicial review of refusals by the Secretary of State for the Home Department ('the Secretary of State') of applications for British nationality (or citizenship) on the ground that the applicant has not demonstrated good character in circumstances in which the Secretary of State is not willing to disclose relevant material to the applicants on public interest grounds. The question is in what (if any) circumstances the judge should consider the documents before deciding whether or not to invite the Attorney General to appoint a special advocate to assist the court.
The appeal is from an order made on 31 October 2008 in which Blake J ('the judge') invited the Attorney General to appoint special advocates to represent nine claimants in judicial review proceedings. He also invited the Attorney General to consider whether one or two special advocates might represent the interests of all nine claimants rather than each claimant having a special advocate of his own. The nine claimants were AHK, BM, GA, ZG, AS, MH, IG, FT and NT. We note in passing that the Attorney General has indicated a willingness to appoint special advocates as requested by the judge. The judge granted the Secretary of State permission to appeal in all nine cases but stayed the appeals in the cases of BM, IG and ZG until the determination of the other appeals. The Secretary of State's appeal is therefore limited to the cases of AHK, GA, AS, MH, FT and NT. In the same order the judge declined to invite the Attorney General to appoint special advocates in the cases of AM and FM. He granted AM and FM permission to appeal but stayed AM's appeal pending the outcome of FM's appeal. The judge gave further directions, although he stayed them pending the decisions in these appeals. All the claimants now have permission to apply for judicial review. In some cases permission had been granted before the matter came before the judge, whereas in the remaining cases the judge himself granted permission.
Background
All the claimants came to this country as refugees and have indefinite leave to remain as refugees. They have all been refused British citizenship on the sole ground that the Secretary of State is not satisfied that they are of “good character” as required by section 6 and Schedule 1 of the British Nationality Act 1981 ('the BNA'). Attached to this judgment as Annex A is a schedule which summarises both the stated reasons for that refusal and the immigration status of the claimant in each case, except FM.
The position of FM is this. The decision letter refusing citizenship was dated 12 July 2006. The ground of refusal given was that the Secretary of State was not satisfied that FM was of good character because he had preached extreme Muslim views. In a letter dated 5 October 2006 upholding that decision the Secretary of State said that she was not prepared to elaborate further. However, there followed some correspondence between the parties, which included a letter of 28 February 2007 which asserted that FM had “openly preached anti-western views and voiced sympathy with Usama Bin Laden at the Hatherley Street Mosque in Liverpool”. The acknowledgment of service was dated 9 July 2007. It included reference to a letter dated 20 March 2007 from FM to his solicitor in which he said that he had never voiced any kind of sympathy with Usama Bin Laden and indeed that he had never mentioned Usama Bin Laden in any of his sermons or anything else whilst being in Hatherley Street Mosque. Lloyd Jones J refused permission to apply for judicial review on paper on 30 August 2007 but it was granted by Sullivan J after an oral hearing on 26 February 2008.
Since December 2004, the Secretary of State, through the UK Border Agency ('the UKBA'), has refused 138 applications for naturalisation on the basis of what Mr Philip Larkin of the UKBA calls restricted grounds. Of those, 35 were refused in 2008 and seven before 12 February in 2009. The Secretary of State is currently defending 22 applications for judicial review of such decisions. Similar procedural problems arise in each of these cases and all the cases which are not the subject of these appeals have been stayed pending our decision. Of the 138 cases since December 2004, 125 applications were refused on grounds which involved national security considerations, either wholly or in part. The remainder involved other public interest considerations, such as the protection of ongoing police investigations. In order to put the problem we are considering in context it is perhaps important to note that about 100,000 applications are successful every year.
In all the cases with which the judge was concerned the Secretary of State refused either to give full (or any) reasons or to disclose relevant material, including material she took into account in reaching her decision, or both. Because of the similarity of the issues likely to be raised in them, Collins J ordered that there be a directions hearing so as to determine how any application by the claimants for reasons or more reasons or by the Secretary of State for an order permitting her not to disclose such material should be approached. All parties welcomed Collins J's order.
The BNA
Sections 6(1) and 6(2) provide:
“(1) If, on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.
(2) If, on an application for naturalisation as a British citizen made by a person of full age and capacity who on the date of the application is married to a British citizen [or is the civil partner of a British citizen], the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.
Paragraph 3 of Schedule 1 provides:
“Subject to paragraph 4, the requirements for naturalisation as a British citizen under section 6(2) are, in the case of any person who applies for it –
(a) that he was in the United Kingdom at the beginning of the period of three years ending with the date of the application, and that the number of days on which he was absent from the United Kingdom in that period does not exceed 270; and
(b) that the number of days on which he was absent from the United Kingdom in the period of twelve months so ending does not exceed 90; and
(c) that on the date of the application he was not subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom; and
(d) that he was not at any time in the period of three years ending with the date of the application in the United Kingdom in breach of the immigration laws; and
(e) the requirements specified in paragraph 1(1)(b), (c) and (ca).”
The requirements of paragraph 1(1)(b), (c) and (ca) are as follows:
“(b) that he is of good character; and
(c) that he has a sufficient knowledge of the English, Welsh or Scottish Gaelic language; and
(ca) that he has sufficient knowledge about life in the United Kingdom…”
Unlike the position as to the other express requirements of paragraph 1(1), the Secretary of State has no express power to dispense with the requirement of good character: see paragraph 2 of Schedule 1.
Until its repeal by the Nationality, Immigration and Asylum Act 2002, with effect from 7 November 2002, section 44(2) of the BNA provided:
“The Secretary of State … shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion; and the decision of the Secretary of State on any such application shall not be subject to appeal to, or review in, any court.”
The repeal of that section was subsequent to the decision of this court in R v SSHD ex parte Fayed (No 1) [1998] 1 WLR 763.
There is no statutory definition of 'good character' in the BNA and no relevant statutory guidance. The Secretary of State has however provided guidance to her officers as to the application of the test: see Annex D to Chapter 18 of the Nationality Instructions. That...
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