In the Media

Judicial review

PUBLISHED May 15, 2012

Evidence - Claimants seeking judicial review of decisions of defendant secretary of state refusing to grant naturalisation

R (on the application of AHK and ­others) v Secretary of State for the Home Department: QBD (Admin) (Mr Justice Ouseley): 2 May 2012

There were more than 40 cases before the Administrative Court in which claimants were seeking judicial review of the decisions of the defendant secretary of state refusing to grant them naturalisation as British citizens under section 6 of the British Nationality Act 1981.

The refusals were on the grounds that the secretary of state was not satisfied that the applicant was of good character. A common feature of the cases was that few or, occasionally, no reasons had been given as to why the secretary of state was not so satisfied. She contended that to give more reasons would be harmful to national security and was not willing to disclose documents on which she relied in reaching her decisions.

In July 2010, the Supreme Court granted permission to appeal from the Court of Appeal in Al Rawi and Others v Security Service [2012] 1 All ER 1. A directions hearing was ordered to decide how the instant claimants' cases were to proceed in light of that decision. The instant four cases were selected as representative of those challenging naturalisation decisions.

The issue which fell to be determined was whether, and if so in what circumstances and with what consequences, a closed material procedure (CMP) could be held where issues of national security arose.

The parties agreed that public interest immunity (PII) hearings were the necessary next stage in the proceedings, whatever the decision on the CMP issue. Consideration was given to article 6 of the European Convention on Human Rights.

The court ruled: While a CMP was capable of being compliant with article 6 of the convention, the decision in Al Rawi meant that a CMP in judicial review proceedings required legislation, nor could it be held by consent. Although Al Rawi only dealt with what could be required in a claim for damages for tort and for breaches of the Human Rights Act 1998, the fact that a case might be brought in the form of judicial review governed by part 54 of the Civil Procedure Rules was not capable of being a principled basis for reaching a different conclusion on the allocation of responsibility between parliament and the courts.

There were also real difficulties about how a court, after a PII procedure, should decide that a CMP procedure should then be applied, and by whom and on what basis. Further, a number of difficulties would arise if it was open to the parties to consent to a CMP, inter alia, in that the claimant would have to be advised that the case was arguable to the extent that it was worth having a CMP (see [67], [72], [83], [87], [89]-[93] of the judgment).

In the naturalisation cases, there could be no CMP even by consent, save as was inherent in the PII process. The cases would have to be considered in the light of anything which emerged from the PII process (see [47], [97] of the judgment).

It was directed that the cases should proceed to a PII hearing which should be held with the benefit of a specially appointed advocate (SAA) for the claimant in each case. The PII procedure could be adapted at least to the following extent: first, the secretary of state or the witnesses on her behalf should provide to the SAA and lodge with the court the witness statement and supporting document in the usual way for a judicial review, along with the certificates of PII in respect of documents and part of the statements. Second, PII should cover the question of material which had been obtained by torture, which the secretary of state should not rely on in court. The material would be irrelevant and would not be disclosed, because it was no longer being relied on (see [98] of the judgment).

Hugh Southey QC and Amanda Weston (instructed by Bates Wells & Braithwaite) for the first claimant; Hugh Southey QC (instructed by Scudamores Solicitors) for the second claimant; Stephanie Harrison and Edward Grieves (instructed by Tyndallwoods Solicitors) for the third claimant; Ramby de Mello and Tony Muman (instructed by Jackson Canter Solicitors) for the fourth claimant; James Eadie QC, Charles Bourne and Paul Greatorex (instructed by the Treasury Solicitor) for the secretary of state; Judith Farbey QC (instructed by SASO) as special advocate.