The Secretary of State for the Home Department v The Special Immigration Appeals Commission AHK, as, FM, AM, SN/MA, and Habib Ignaoua (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P,Lady Justice Macur,Mr Justice Ouseley |
| Judgment Date | 18 March 2015 |
| Neutral Citation | [2015] EWHC 681 (Admin) |
| Docket Number | Case No: CO/4806/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 March 2015 |
[2015] EWHC 681 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Lady Justice Macur DBE
and
Mr Justice Ouseley
Case No: CO/4806/2014
and
Steven Kovats Q.C. and Julian Blake (instructed by the Treasury Solicitor) for the Claimant
The Defendant did not appear and was not represented
Stephanie Harrison Q.C., Amanda Weston and Edward Grieves variously for the 1 st, 2 nd, 4 th and 6 th Interested Parties (instructed by Birnberg Pierce & Partners, Wilsons Solicitors, Bates Wells Braithwaite and Fountain Solicitors)
Ramby de Mello (instructed by Broudie, Jackson & Cantor) for the 3 rd Interested Party
Judith Farbey Q.C. and Martin Goudie (instructed by the Special Advocates Support Office) as Special Advocates
Hearing date: 10 th-11 th February 2015
This application by the Secretary of State for the Home Department (SSHD) for judicial review of two preliminary decisions of the Special Immigration Appeals Commission (SIAC) is the most recent development in long running litigation brought by Habib Ignaoua in respect of a direction of the Secretary of State for the Home Department that he be excluded from the United Kingdom (first promulgated on 26 October 2009) and by the remaining interested third parties whose applications for naturalisation have been refused (the relevant decisions having been made between 2006 and 2014). These proceedings, brought with the leave of Ouseley J, concern the extent to which the SSHD must provide disclosure of CLOSED material to special advocates appointed to represent the interests of the interested parties.
The underlying proceedings which constitute the present litigation consist of statutory judicial review proceedings under ss.2C and 2D of the Special Immigration Appeals Commission Act 1997 in Habib Ignaoua v Secretary of State for the Home Department SN/6/2013 (' Ignaoua') and AHK and ors v Secretary of State for the Home Department SN/2–5/2014 (' AHK') respectively. These provisions grant SIAC jurisdiction to review a direction to exclude a non-EEA national, or a decision to refuse naturalisation, where SSHD certifies that the direction or decision was based on information which in her opinion should not be made public. They were inserted by s.15 of the Justice and Security Act 2013 in order to address the deficiency described by Richards LJ in R (Ignaoua) v Secretary of State for the Home Department [2013] EWCA Civ 1498, [2014] 1 WLR 651 [at 24] as:
"…the impossibility or the improbability of a claimant succeeding in a judicial review of this kind in the absence of a closed material procedure."
In the circumstances, on application by SSHD under s.6(2) of the 2013 Act, Ouseley J granted a declaration that a closed material application may be made in these proceedings. As a result, submissions and argument have been received from the SSHD and the interested parties in OPEN and from the SSHD and special advocates in CLOSED. The latter have obviously informed our decision in the former and both OPEN and CLOSED judgments have been prepared.
Background
These cases have a significant history going back at least eight years; for the purposes of this application, however, the facts do not require detailed analysis. In summary, SSHD refused the applications of AHK, AS, FM, AM and MA for naturalisation as British citizens under s.6 of the British Nationality Act 1981, and directed that Mr Ignaoua be excluded from the United Kingdom. The common theme is that SSHD has concluded that it is not possible to give detailed reasons for her decisions or direction.
In some cases, information has been given that there is an association between the applicant and individuals who are connected with extremist action; in others, if reasons are given, there has been a general allegation of connection with groups considered as hostile to the United Kingdom. In all cases it is indicated that it is not in the public interest to provide further disclosure. In due course, the Interested Parties applied to SIAC for review of the SSHD's decisions and the argument has been focused on the extent of the obligation of the SSHD to disclose material beyond that which formed what has been described as the summary (in AHK at [35]) and the assessment ( Ignaoua [21]) or, more accurately, the report or submission which was provided to the relevant decision maker (the SSHD or an official on her behalf) for a decision.
The legal framework
The nature of the SIAC review is set out by statute and procedural rules. First and foremost, the legislation was specifically designed to resolve the problem identified in AHK et al v Secretary of State for the Home Department [2014] EWCA Civ 151, [2015] 1 WLR 125 and provide for a closed material procedure which did not carry a right of appeal. In that regard, s. 2C(3) and s. 2D(3) of the 1997 Act are identically worded:
"In determining whether the decision should be set aside, the Commission must apply the principles which would be applied in judicial review proceedings."
The way in which that review is to be conducted is also identified. Rule 9(1A)(a) of the Special Immigration Appeals Commission (Procedure) Rules 2003 (the 2003 Rules) provides that the notice of application for review must specify:
"…by reference to the principles which would be applied in an application for judicial review, the grounds for applying for a review."
Rule 4 of the 2003 Rules sets out SIAC's duties in respect of disclosure and bears quotation in full:
(1) When exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.
(2) Where these Rules require information not to be disclosed contrary to the public interest, that requirement is to be interpreted in accordance with paragraph (1).
(3) Subject to paragraphs (1) and (2), the Commission must satisfy itself that the material available to it enables it properly to determine proceedings.
Rules 10 and 10A of the 2003 Rules, which impose on SSHD a duty to search for exculpatory material in appeals, do not apply to reviews: rules 10(A1) and 10A(A1). Rule 10B(1) provides that on review SSHD must file a statement of the evidence on which she relies in opposing the application; and material relevant to the issues. Rule 37(5) enables SSHD, with leave of SIAC or agreement of the special advocate, to amend or supplement her closed evidence. Rule 39(5)(c)(i) enables SIAC to direct any disclosure that appears to be necessary to determine proceedings.
These provisions have been considered in an earlier round of the Ignaoua litigation by Ouseley J (with whom Irwin J agreed) when it was observed that "all relevant material would be disclosed to the Special Advocate and to the Commission": see [2014] EWHC 1382 (Admin) at [32]. Ouseley J went on (at [46]) that the closed material procedure was intended to be:
"part of a process which enables issues which would not otherwise have been fairly triable to be reviewed by judges. This advances rather than restricts judicial oversight of the lawfulness of executive acts."
These provisions specific to SIAC exist alongside other duties of more general application. The Practice Direction to CPR Part 54 states (at §12) that "disclosure is not required unless the court orders otherwise." Thus CPR 31 (which sets out the rules applicable on standard disclosure) will not ordinarily apply on an application for judicial review. The corollary, however, is the well-established duty of candour on public authority defendants to judicial review claims. As explained for example by Lord Donaldson MR in R (Huddleston) v Lancashire County Council [1986] 2 All ER 941:
"This development [judicial review] has created a new relationship between the courts and those who derive their authority from public law, one of partnership based on a common aim, namely the maintenance of the highest standards of public administration … The analogy is not exact, but just as the judges of the inferior courts when challenged on the exercise of their jurisdiction traditionally explain fully what they have done and why they have done it, but are not partisan in their own defence, so should be the public authorities."
The principle is expressed in the Treasury Solicitor's January 2010 Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings, as being "not … to win the litigation at all costs but to assist the court in reaching the correct result and thereby to improve standards in public administration". The nature and extent of the duty is also expressed in R (Al Sweady and ors) v The Secretary of State for Defence [2010] HRLR 2, per Scott Baker LJ, following Laws LJ in R (Quark Fishing Limited) v Secretary of State for Foreign & Commonwealth Affairs [2002] EWCA Civ 1409 [at 50] in terms that:
"there is … a very high duty on public authority respondents, not least central government, to assist the court with full and accurate explanation of all the facts relevant to the issue the court must decide. The real question here is whether in the evidence put forward on...
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