R v Secretary of State for the Home Department, ex parte Fayed
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,LORD JUSTICE PHILLIPS |
| Judgment Date | 13 November 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J1113-9 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBCOF 96/0365/D |
| Date | 13 November 1996 |
[1996] EWCA Civ J1113-9
The Master of the Rolls
(Lord Woolf)
Lord Justice Kennedy
Lord Justice Phillips
QBCOF 96/0365/D
QBCOF 96/0422/D
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
(MR JUSTICE JUDGE)
Royal Courts of Justice
Strand
London WC2
MR M BELOFF QC and MR M SHAW and MR R SINGH (Instructed by Palmer Cowan, London W1X 5AE) appeared on behalf of the Appellants.
MR S RICHARDS and MR S CATCHPOLE (Instructed by The Treasury Solicitor, London, SW1H 9JS)) appeared on behalf of the Respondent
This appeal raises issues which concern the relationships between the legislature, the executive and the courts. This is because of the terms of section 44(2) of the British Nationality Act 1981 (the "Act"). Section 44(2) lays down that in the case of decisions to which the section applies the Home Secretary is not "required to assign any reason for the grant or refusal of any application under" the Act and the decisions "shall not be subject to appeal to, or review in, any court".
Normally any decision taken by a minister under a discretion conferred on him by Parliament which affects a member of the pubic is required to be exercised in a manner which is fair or, as use to be said, in accordance with the rules of natural justice. This is a long established principle confirmed by a series of cases in the House of Lords, a recent example of which is R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531. In that case, in a speech with which all the members of the House agreed, Lord Mustill summarised the principle in these terms (at p 560 D\G):
"What does fairness require in the present case? My Lords. I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result: or after it is taken, with a view to procuring its modification ; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."
It is also a principle of our administrative law that when a decision is taken in manner which breaches the requirement that it should be taken fairly, in the absence of any alternative satisfactory remedy, the member of the public who has been unfairly treated is entitled to a remedy from the High Court on an application for judicial review. In providing a remedy the court is ensuring that decisions of the executive are taken in the manner required by Parliament. This principle was reflected in a statement made by Viscount Simonds in Pyx Granite V M.H.L.G. [1960] A.C.260 when he said;
"It is a principle not by any means to be whittled down that the subjects recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words. That is, as McNair J. called it in Francis v Yiewsley and West Drayton U.D.C. [1957] 2 QB 136 a "fundamental rule" from which I would not for my part sanction any departure."
This statement was made before distinction between public and private law rights had been developed but is equally applicable today to the situations were the courts grant a public law remedy.
The language of section 44(2) obviously could alter the usual position and in order to determine this appeal it is necessary to decide the extent to which the section relieves the Minister from the normal obligation to act fairly and interferes with the ability of the court to play its usual role of protecting members of the public who have been unfairly treated.
THE FACTS
Although these appeals raise issues of principle the facts are not unimportant in determining the issues. My task in reciting the facts is made immeasurably easier by my ability to rely heavily on the extremely concise and clear summary of those facts contained in the judgment of Judge J. who dismissed the applications which are the subject of this appeal.
The applicants are two brothers, Mr Mohammed Fayed ("Mohammed") and Mr Ali Fayed ("Ali"). Both were born in Egypt. Mohammed in 1933 and Ali in 1943. Mohammed has lived permanently in this country since 1964. He was granted leave to remain indefinitely. Ali started to live permanently in this country in the late 1960's and was granted indefinite leave to remain in 1977. Mohammed is married to a citizen of Finland, but he has dependent children who are British citizens. Ali is married to a British citizen and his three children are also British citizens. As well as making their homes here the Fayeds have substantial business interests in the United Kingdom.
Both are resident here for tax purposes and are fulfilling their fiscal obligations. Their financial contributions to the commercial life of this country are significant. In addition both brothers have made generous contributions to United Kingdom charities. Their careers both before and after they arrived in this country have, however, been the subject of controversy and considerable media interest.
On the 29th January 1993, Ali submitted an application for naturalization as a British citizen under the Act and this was followed by an application by Mohammed on the 15th February 1994. The applications were made on forms provided for this purpose which request very limited information. On 23rd February 1995 in separate letters, both applications were refused.
During the lengthy period when the applications were under consideration they were merely two out of the 42,000 outstanding applications for British citizenship. The Judge therefore was right in stating in his judgment that "as well as raising questions of moment to the applicants personally, the present case involves consideration of issues of general significance in relation to procedures currently adopted by the Secretary of State to enforce and implement the 1981 Act and the very large number of applications by citizens of other countries for naturalization here".
Because Ali was married to a British citizen, his application was governed by section 6(2) of the Act while Mohammed's was made under section 6(1) of the Act. I will refer to section 6 later but the difference in the two brothers positions are of no significance to the outcome of their appeals.
Ali's application showed that he had been absent from the United Kingdom for a few more than the maximum 90 days allowed in the year prior to submission of his application. However by letter of the 10th May 1995, it is confirmed on behalf of the Home Office that Ali's failure to meet the residence requirement was not the reason for refusal of his application.
In March 1993 the then Home Secretary informed one of Ali's referees that enquiries (the nature of which have not been revealed) were under way and in August 1993 the Home Office requested further documentation including his marriage certificate and confirmation of his tax position.
On the 6th December 1993 the head of the Nationality Division confirmed to those representing Ali, the receipt of all documentation requested and gave, what proved to be an optimistic forecast, that a decision would be made in "up to two months" and that a report was going shortly to the Secretary of State. After consideration by officials Ali's application was passed to a junior minister at the Home Office, Mr Charles Wardle. Subsequently Mohammed's application was also considered by Mr Wardle. In April 1994 the Home Secretary himself suggested further enquiries should be made and following a ministerial reshuffle in July 1994 Mr Nicholas Baker replaced Mr Wardle as Minister responsible for making the decisions. This appeared in a news release of the 24th October 1994 made by the Secretary of Secretary in which he set out his own involvement with the applications. The release also indicated that the applications by the brothers were regarded as being "especially difficult or sensitive". No further enquiries or investigations were made of or directed to either of the applicants.
After questions in the House of Commons during the Autumn 1994, in November 1994 Ali's Solicitors offered to meet the Minister to discuss the application because they were concerned about the delay. They were also concerned that his application might, in some unspecified way, beadversely affected unless it was treated...
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