R (Murungaru) v Secretary of State for the Home Department and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keith,MR JUSTICE MITTING |
| Judgment Date | 30 November 2006 |
| Neutral Citation | [2006] EWHC 3726 (Admin),[2006] EWHC 2416 (Admin) |
| Docket Number | CO/6870/2005,Case No: CO/6870/05 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 November 2006 |
[2006] EWHC 2416 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Keith
Case No: CO/6870/05
Mr Rabinder Singh QC, Mr Dan Squires and Ms Tessa Hetherington (instructed by Messrs Leigh Day & Co) for the Claimant
Mr Jonathan Crow and Ms Lisa Giovanetti (instructed by the Treasury Solicitor) for the Defendants
Introduction
Most immigration decisions are taken by immigration officers in the name of the Secretary of State for the Home Department. Very few are made by the Secretary of State personally. This case concerns one which was. It relates to a Kenyan politician. The Secretary of State decided that he should be excluded from the United Kingdom on the ground that his presence here would not be conducive to the public good. In this claim for judicial review, that decision, together with decisions associated with it, are subjected to a sustained legal challenge.
The facts
The claimant, Dr Christopher Murungaru, is a Member of Parliament in Kenya. At the time of the decisions complained of, he was Kenya's Minister of Transport. On 9 April 2005, he was issued with a visa permitting him to enter the United Kingdom for medical treatment. He had sustained a severe soft tissue injury to his arm, and his local doctors had referred him to a team of specialists in London. The visa was valid until 9 October 2005, and permitted Dr Murungaru to make multiple entries into the United Kingdom. He entered the United Kingdom on the basis of that visa on two occasions. The first was on 12 April 2005. He underwent surgery during that visit, and returned to Kenya on 17 May 2005. The second was on 8 June 2005. His medical condition was reviewed during that visit, and he returned to Kenya on 10 June 2005. He was intending to return in September 2005 for his condition to be further reviewed and for such treatment as may have been necessary.
But he was not to return then. Some time after 9 April 2005 when Dr Murungaru had been issued with the visa, new material became available to the Secretary of State which led him to consider whether Dr Murungaru should be permitted to continue to visit the United Kingdom. By the time the Secretary of State came to consider that material, he had become aware that Dr Murungaru had already visited the United Kingdom twice on his current visa, and he knew that Dr Murungaru could return to the United Kingdom at any time prior to 9 October 2005. Indeed, on 20 July 2005, he was informed by the Foreign and Commonwealth Office that they believed that Dr Murungaru was planning to visit the United Kingdom in early August. Accordingly, since there was some urgency in the matter, the Secretary of State decided to make his decision whether to exclude Dr Murungaru from the United Kingdom there and then, without notifying Dr Murungaru of that decision or what the reasons for it were, and without inviting any representations from Dr Murungaru. He concluded that Dr Murungaru's presence in the United Kingdom would not be conducive to the public good, and he decided that Dr Murungaru should be excluded from the United Kingdom. He made that decision on 21 July 2005. That is the first decision challenged on this claim for judicial review.
What lay behind this decision was information which the Secretary of State had received since the issue of Dr Murungaru's visa. At the time of the issue of the visa, the entry clearance officer in Nairobi was aware that serious allegations of corruption had been made against Dr Murungaru. However, the information which the Secretary of State received after that was that Dr Murungaru had been "involved in activities connected with" these allegations while he had been in the United Kingdom. The nature of that information has never been made public, and it is not known whether the allegation relates to his activities on either or both of the occasions when Dr Murungaru came to the United Kingdom after the visa was issued, or whether they relate to his activities on earlier visits to the United Kingdom.
Following the issue of these proceedings, it was said on behalf of the Secretary of State that "[t]he most important material" on which the Secretary of State based his decision could not be disclosed on public interest grounds – perhaps implying that public interest grounds may not have justified the non-disclosure of the less important information on which the decision was based. The material was put before Collins J at a hearing on 16 March 2006 of which Dr Murungaru's advisers were not given notice. As a result of what was said at that hearing, the Parliamentary Under Secretary of State for Foreign and Commonwealth Affairs on 5 May 2006 issued a certificate in which he claimed public interest immunity from disclosing the material ("the PII certificate"), certifying that the public interest did not favour the disclosure of the material. The material was set out in a confidential schedule to the PII certificate, and was described as forming "an important part of the decision-making process".
When making his decision, the Secretary of State had taken into account what he had been informed of by the Foreign and Commonwealth Office about corruption in Kenya. That information included the reputation which the previous regime in Kenya had had for "grand-scale corruption, which was endemic within Government and involved ministers and officials from the very top of Government down". The new President of Kenya had promised "zero tolerance" towards corruption, but despite the appointment of an anti-corruption czar, "many of those who had conducted corrupt business with the former regime [had] established links with Ministers and officials in the new regime". The Government of the United Kingdom was supporting the new President's efforts to stamp out corruption, and was pressing the President to take action against anyone in his Government who was implicated. Indeed, the evidence filed on behalf of the Secretary of State – though it is not said that the Secretary of State was aware of it at the time – is that in February 2005, the Foreign and Commonwealth Office had provided the new President, on a strictly confidential and personal basis, with details of "about 20 Kenyan Government transactions which required transparent investigation, publication of results and resolution". Part of the Secretary of State's reason for regarding the increasing concerns about Dr Murungaru's involvement in corruption as requiring his exclusion from the United Kingdom was that otherwise the United Kingdom's support of the Kenyan Government's determination to stamp out corruption would be undermined.
Although the nature of the information implicating Dr Murungaru in corruption has never been disclosed, it is a matter of record that Dr Murungaru was appointed to the key post of Minister for National Security and Provincial Administration in the Office of the President. As such, he was responsible for the armed forces and the police. However, there were allegations in the media of corruption in connection with the supply of military and police equipment, and these allegations were connected to the Office of the President. In February 2005, Dr Murungaru was removed from his post and appointed Minister of Transport, a move which was widely regarded as a demotion in response to calls to tackle corruption.
Dr Murungaru was notified of the Secretary of State's decision to exclude him from the United Kingdom by a letter from the Immigration and Nationality Directorate of the Home Office dated 25 July 2005. It read:
"The purpose of this letter is to notify you that on the 21 July, after most careful consideration, the Home Secretary personally directed that you should be excluded from the United Kingdom on the grounds that your presence would not be conducive to the public good in the light of your character, conduct and associations. You have no right of appeal against this decision."
The letter did not explain why it was thought that Dr Murungaru's "character, conduct and associations" made his presence in the United Kingdom not conducive to the public good. It was sent under cover of a letter dated 26 July 2005 from the entry clearance officer, requesting Dr Murungaru to arrange for his passport to be sent to the British High Commission in Nairobi so that the visa could be cancelled, since the decision to exclude him from the United Kingdom rendered it invalid.
On 27 July 2005, the British High Commissioner in Nairobi distributed an alert to airlines that Dr Murungaru's visa had been revoked, that he was therefore not acceptable for travel to the United Kingdom, and that he should not be carried there. The effect of this instruction was that he could not even be a transit passenger passing through the United Kingdom, i.e. one who did not leave the parts of the airport designated for such travellers and who are deemed by section 11 of the Immigration Act 1971 as not having entered the United Kingdom. This instruction is the second decision which is challenged. The skeleton argument prepared for this hearing on behalf of Dr Murungaru said that "[t]his circular was distributed to the media and the matter promptly received widespread coverage". The defendants do not accept that the British authorities provided any information to the media about either the revocation of Dr Murungaru's visa or the instruction to the airlines....
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