“(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).”
“(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…”
“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.”
“94. Mr Eadie [counsel for the claimant] submits that it is clear from the judgment that material, apparently decisive of the outcome of the application for the production order, was not seen by the claimant or his legal representatives. We have read the closed documentation carefully and can confirm that it does contain material which had an important bearing on the outcome of the application before the judge and that the judge was right so to regard it. Mr Eadie submits that the common law requirements of natural justice were not satisfied by the procedure that was adopted in this case. It is fundamental to a judicial inquiry that a person must have the right to see all the information that is put before the judge, so that he may comment on it, challenge it and, if necessary, counter it by contrary evidence. In addition, Mr Eadie submits that the claimant’s article 6 civil rights were engaged by the Chief Constable’s application and the procedure adopted did not afford the claimant a substantial measure of procedural justice as required by the Convention. At the very least, a special advocate was required to view the closed material and attend the closed hearing in order to cross-examine Detective Inspector Richardson and make submissions to the judge. 95. Mr Eadie further submits that the need for a special advocate was heightened on the facts of this case by the seriousness of the consequences for the claimant if a production order was made. If he complies with the order, he runs all the risks to which we have earlier referred. If he does not comply, then he commits a contempt of court. 96. The use of special advocates was first sanctioned by Parliament in the context of national security deportations by the creation of the Special Immigration Appeals Commission (“SIAC”) to hear immigration appeals in matters with a national security element: seesection 2 of the Special Immigration Appeals Commission Act 1997 . The functions of a special advocate in that context are set out in rule 35 of the Special Immigration Appeals Commission Rules SI 2003 No 1034 (as amended). A special advocate in SIAC proceedings has, broadly speaking, two principal tasks: (i) to test the Secretary of State’s objections to disclosure of material to the appellant and see whether more can be moved from the closed to the open part of the proceedings; and (ii) to represent the interests of the appellant in any closed proceedings. Once a special advocate has received closed material, his ability to communicate with the appellant or his representatives is severely curtailed (rule 36). The SIAC model has been adopted in various other legislative contexts. It is not necessary to describe these. They do not include applications for production orders under the 2000 Act. 97. There have been cases where, without an applicable statutory scheme, the court has asked the Attorney-General for a special advocate. Examples are Secretary of State for the Home Department v Rehman in the Court of Appeal at[2003] UKHL 47 at [31] and [32]; R v Shayler[2002] UKHL 11 ,[2003] 1 AC 247 at [34]; R v H[2004] UKHL 3 ,[2004] 2 AC 134 at [22] (in the context of an ordinary criminal trial); and R (Roberts) v Parole Board[2005] UKHL 45 ,[2005] 2 AC 738 . 98. In R v H at [22], Lord Bingham, giving the opinion of the Appellate Committee of the House of Lords said, in the context of a discussion about criminal trials, that the court should not be deterred from requesting the appointment of a special advocate to represent a defendant in public interest immunity matters, where the interests of justice are shown to require it. He said: “But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort”
“Although they do not arise directly in the present case, there are some larger principles which need to be borne in mind by courts. The help of a special advocate is to be sought if, but only if, the interests of justice require it: it is a last resort if all other means of doing justice fail (see Lord Bingham in R v H[2004] 2 AC 134 §22). Even disclosure of evidence is not a universal right (see Lady Hale in Home Secretary v MB[2008] AC 440 §58ff). The availability of a special advocate can never be a reason for reducing the procedural protections which the law otherwise guarantees (see Lord Woolf in Roberts v Parole Board §59). These, whether under art. 6 or at common law, may vary with the gravity of the potential consequences of the proceedings (see Lord Bingham in Home Secretary v MB §24).”
“Because of the certificate the court will have to evaluate the material for itself. Mitting J, a judge with very considerable experience in this problematical field, took the view that a special advocate would be of value to the court in this exercise – not because a special advocate can represent the claimant (they cannot and do not purport to) but because he or she can probe the material independently and relieve the judge of what might otherwise resemble a partisan intervention.”
“23. The last of these considerations may, however, be negotiable. In Malik the divisional court said: “It is true that a special advocate could test and probe the assessments of the officer, but so too could the judge”
“That is true, but we doubt whether the court should be more willing to request the appointment of a special advocate in other contexts.” “It is true that a special advocate could test and probe the assessments of the officer, but so too could the judge”
“Second, in those cases and in cases 1 and 4, I consider for the reasons already given in this judgment that the court is likely to be assisted by the appointment of an SAA to examine, negotiate and if appropriate make submissions about whether further data can be disclosed without damage to the public interest. I am conscious that I have not seen the closed material and that there is much to commend the defendant’s suggestion that whatever criteria the court adopts to decide when an SAA is needed, the court should examine the closed material for itself before deciding on whether an SAA is needed. As against that the directions hearing were designed to clarify whether an SAA should be appointed or not and further delay in reaching a conclusion on this issue should be avoided if possible. In the light of my conclusions that Convention rights are engaged, that the procedure should be as fair as possible and that there is a reasonable possibility on the present state of information that use of an SAA could result in disclosure of further data I consider it appropriate that I should make my request now to the Attorney General in this group of cases.”
“The refusal of British nationality to one who has, apparently, satisfied all the technical requirements … is likely to carry the natural implication, both in this country and abroad, that he has attributes of background character and conduct that are disreputable. I consider that these factors give the applicants stronger grounds for urging a duty of disclosure … The refusal of the benefits of naturalisation and the adverse inferences that will be drawn from such refusal are so serious that, as a matter of natural justice, an applicant should not be visited with them without a fair chance to meet the adverse case that threatens that result.”