Murungaru v Secretary of State for the Home Department & Ors [2006] EWHC 2416 (Admin)

Case No CO/6870/05

[2006] EWHC 2416 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Wednesday 4th October 2006

Before

MR JUSTICE KEITH

Between

Christopher MurungaruClaimant

(1) Secretary of State for the Home DepartmentDefendants

(2) Entry Clearance Officer, NairobiDefendant

(3) British High Commissioner, NairobiDefendant

(Transcript of the Handed Down Judgment of

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Mr Rabinder Singh QC, Mr Dan Squires and Ms Tessa Hetherington (instructed by Messrs Leigh Day & Co) for Claimant

Mr Jonathan Crow and Ms Lisa Giovanetti (instructed by the Treasury Solicitor) for Defendants

Judgment

Introduction

[1]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

[2]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.

[3]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.

[4]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.

[5]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”.

[6]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.

[7]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.

[8]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.

[9]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. Indeed, in response to a request for information from the Kenyan Ministry of Foreign Affairs, the British High Commission confirmed that the letter revoking Dr Murungaru’s visa had been sent only to him, that the information given to the airlines about that had been in confidence, and that the reasons for such decisions are not disclosed to third parties.

[10]Dr Murungaru did not comply with the entry clearance officer’s request for him to arrange for his passport to be sent to the British High Commission for the visa to be cancelled. Accordingly, on 25 August 2005, the entry clearance officer wrote to Dr Murungaru informing him that the entry clearance issued to him on 9 April 2005 had been revoked under para. 30A(iii) of the Immigration Rules, which permitted the entry clearance officer to revoke Dr Murungaru’s entry clearance if he was satisfied that Dr Murungaru’s exclusion from the United Kingdom would be conducive to the public good. The revocation of Dr Murungaru’s entry clearance is the third decision which is challenged.

[11]Following the issue of the claim for judicial review, the Secretary of State decided that Dr Murungaru could be informed of the nature of his concern that Dr Murungaru’s presence in the United Kingdom would not be conducive to the public good. Accordingly, his solicitors were informed by a letter from the Immigration and Nationality Directorate dated 23 November 2005 that the decision had been made “[f]urther to increasing concerns regarding [his] involvement in corrupt practices”. No information was given about the nature of that involvement or when it had taken place or the material on which the concern was based, but Dr Murungaru was invited to make such representations as he wished in the light of this indication. That invitation was declined on the basis that the additional information was so limited that Dr Murungaru was “still not in a position to make sensible representations”.

[12]The decisions challenged are said to have had significant implications for Dr Murungaru. First, he was unable to continue to see the doctors who had been treating him. He claims that he is still in pain and discomfort. Having said that, it is by no means clear that his condition would have required further treatment from his English doctors had his visa not been revoked. And he would have had to settle for treatment from his doctors in Kenya after the expiration of his visa if it had not been renewed following its expiration. Secondly, his inability to travel to, or even through, the United Kingdom is said to have affected his role as Minister for Transport. That role required him to travel to the United Kingdom, and through the United Kingdom to other European countries, for discussions relating to the improvement of transport links between Kenya and the rest of the world. Only one such trip was referred to in the evidence before his visa would have expired, namely for a meeting in London in September 2005 with the Director-General of the International Maritime Organisation. The only other specific event which Dr Murungaru was due to attend for which a date was given in evidence was one in November 2005 which was after his visa would have expired. Thirdly, Dr Murungaru claims that when his exclusion from the United Kingdom became known, his standing, reputation and authority was seriously undermined. That was especially so in view of(a) the nebulous grounds cited for his exclusion,

(b) the speed with which the Secretary of State had acted on being informed of what was believed to be Dr Murungaru’s plan to return to the United Kingdom in early August, and

[13]Although not directly relevant to Dr Murungaru’s claim, two recent developments should be noted. First, on 19 October 2005, Dr Murungaru was informed that the Government of the United States had determined that he was ineligible for a visa to the United States, on the ground that he had “committed, participated in, or [been] the beneficiar[y] of corruption in the performance of public functions”. Secondly, on 23 November 2005, following a referendum on a draft constitution, the President of Kenya removed all members of his cabinet from their positions, including Dr Murungaru. Some newspaper reports speculated that the removal of Dr Murungaru from the cabinet was in response to pressure from countries which provide aid to Kenya and was linked to his exclusion from the United Kingdom.

[14]Finally, on 9 January 2006, Dr Murungaru was issued with a notice by the Kenyan Anti-Corruption Commission, requiring him to provide a written statement of his assets, and a further notice requiring him to attend the offices of the Commission to assist in its investigation into his affairs. Dr Murungaru attended the office of the Commission and answered the questions of the investigating officer, but he challenged the constitutionality of the statutory provisions enabling the Commission to issue the notice requiring him to provide details of his assets. On 24 March 2006, the Kenyan Court of Appeal held that his challenge was arguable, and issued a stay of the notice and the magistrates’ court proceedings issued against Dr Murungaru for failing to comply with it. By 25 April 2006, the Commission had not provided Dr Murungaru with the material or information said to justify a reasonable suspicion of his involvement in corruption or economic crime, and no charges had been brought against him.

The grounds of challenge

[15]The attack on the decisions which are challenged is on five fronts. First, the process by which the decision of the Secretary of State to exclude Dr Murungaru from the United Kingdom was reached was unfair, since he was given no notice that the Secretary of State was considering excluding him from the United Kingdom, nor was he told of the reasons why his exclusion from the United Kingdom was being considered, nor was he given an opportunity to make representations to the Secretary of State prior to the decision being made. Secondly, no reasons – or at any rate no adequate reasons – have been given to him for the decision to exclude him from the United Kingdom. It is said that fairness required him to be provided with sufficient reasons to enable him to see whether there were any grounds for challenging it. Thirdly, these shortcomings are said to have amounted to a breach of Dr Murungaru’s right to effective access to a court and a fair hearing in the determination of his civil rights protected by

Art. 6 of the European Convention on Human Rights

(“the Convention”). Fourthly, to the extent that the decisions which are challenged interfered with his contractual right to receive private medical treatment in the United Kingdom, that interference infringed his right to “peaceful enjoyment of his possessions” protected by Art. 1 of the First Protocol to the Convention. Finally, the instruction to airlines not to carry Dr Murungaru to the United Kingdom was irrational to the extent that it precluded Dr Murungaru from passing through the United Kingdom as a transit passenger. The other grounds relied on in the judicial review claim form are no longer pursued.

The PII certificate

[16]I have only seen that part of the PII certificate which contains the conclusion that the public interest does not favour the disclosure of the information on which the Secretary of State’s decision was based. I have not seen the confidential schedules to the certificate which contain(a) the material – or at least some of it – which the Secretary of State took into account and

(b) the reasons why the view is being taken that the disclosure of the information is regarded as so damaging as to justify its non-disclosure. Dr Murungaru’s advisers say that this case can be disposed of without the court looking at the contents of the schedules, since the primary contention advanced on his behalf is that the decisions challenged should be quashed because no public interest argument can, on the facts of this case, justify the failure to give Dr Murungaru any advance warning of the proposed decision or a gist of the reasons for it, or any opportunity to make such representations as he could prior to the final decision being made.

[17]The Secretary of State takes a different stance. Although he does not seek to rely on the contents of the confidential schedules to the PII certificate, he wants the court to understand the constraints under which he was having to act. His position, therefore, is that although it may be possible for the court to dismiss Dr Murungaru’s claim without looking at the material, it would be wrong for the court to decide the case in favour of Dr Murungaru without looking at the material. In these circumstances, both sides agreed that for the time being I should address the issues which the claim raises without looking at the material, and that I should give judgment on those issues to the extent that I can. It is only if I cannot decide all or any of the issues without looking at the material that consideration should then be given to how it should be considered by me. I was prepared to go along with that proposal.

[18]It should be noted that there has been a shift in the label attached to the justification for not disclosing the basis on which there were increasing concerns about Dr Murungaru’s possible involvement in corrupt practices while he has been in the United Kingdom. One might have thought that the need to protect the identity of the source or sources of the information received – i.e. what is sometimes referred to as considerations of “criminal intelligence” – lay behind it. But that does not appear to have been the case. “Diplomatic reasons” were originally cited as the reason for the non-disclosure of the information. However, in the PII certificate, the Under-Secretary of State referred to the non-disclosure of material as being “necessary to protect national security”. Unless and until the court looks at the material, it is not possible to say whether this is only a change in describing the nature of the interest which the non-disclosure of the material is seeking to protect, or whether there has been a change in the interest itself. (1). Pre-decision unfairness

[19]In a much quoted passage in R v Secretary of State for the Home Department ex p. Doody

[1994] 1 AC 531

at p. 560D-G, Lord Mustill summarised the principles to be derived from the authorities as to what the duty of fairness requires:

“(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.”

Thus, the duty to act fairly generally requires that, before a decision adverse to an individual is taken, he is informed of the proposed decision and the nature of the matters being considered by the decision-maker in sufficient detail to enable him to make effective representations about why the decision should not be made, and is given an opportunity to make such representations. These requirements apply just as much to decisions to exclude a person from the United Kingdom as they do to any other decision: see, for example, Re HK

[1967] 2 QB 617

at p. 630A-C and R v Secretary of State for the Home Department ex p. Moon [1997] INLR 165 at p. 168 A-B.

[20]However, what fairness requires to be done will depend on the circumstances of each case. Fairness may, in many cases, require the decision maker to take all the steps which are necessary to enable effective representations against the proposed decision to be made. But there may be cases at the other end of the spectrum – perhaps only a few – in which the requirement to act fairly does not include the taking of any of these steps. It all depends on the particular facts of the individual case. That was why Lord Mustill said at p. 560E that “[t]he 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.” That was also why he added the words “very often” to principles (5) and (6) – to indicate that the duty to take the steps necessary to enable the individual affected by the proposed decision to make effective representations against it is not an absolute one. This was recognised, for example, by Sedley J (as he then was) in Moon at p. 172A-B, when he said:

“Neither the subject matter [the decision to exclude the claimant from the United Kingdom], which involved no consideration of national security or criminal intelligence, nor the time-scale was such as to make the [duty to afford an opportunity to make representations] inapplicable.”

The corollary is that national security or criminal intelligence – or the dictates of diplomacy – may justify depriving someone of that opportunity in an appropriate case.

[21]But depriving someone of that opportunity can only be justified if the Secretary of State has carried out the necessary balancing exercise between the interest which the non-disclosure seeks to protect and the desirability of the individual concerned having that opportunity. Mr Rabinder Singh QC for Dr Murungaru contends(a) that there is no certainty that the Secretary of State did that, and

(b) that even if he did, his approach was patently flawed.

[22]As for (a), it is perfectly true that the Secretary of State has never said in so many words that in reaching his decision he balanced the importance of Dr Murungaru being given an opportunity to make effective representations about his proposed exclusion against the interest which the non-disclosure of the gist of the reasons was intended to protect. It is asserted in the PII certificate that the appropriate balancing exercise has been carried out, but the language of the PII certificate suggests that it was only carried out by the Under-Secretary of State for the purpose of deciding whether to issue the PII certificate, not by the Secretary of State when he took the decision in the first place. Indeed, one view of the evidence is that the Secretary of State may have chosen not to disclose the relevant material to Dr Murungaru, not so much because he had conducted the relevant balancing exercise, but because there simply was not the time to disclose the material to him before he came to the United Kingdom. But it would be grossly premature for the Secretary of State’s decision to be quashed on this ground without the court looking at schedule B to the PII certificate, which sets out the reasons why disclosure of the information would be regarded as so damaging. Those reasons may well show that the Secretary of State had them in mind at the time of his decision, and that he would have decided not to disclose them then, even though that would deprive Dr Murungaru of the opportunity to make effective representations about his proposed exclusion, irrespective of the need to act quickly.

[23]As for (b), four points were taken by Mr Singh:(i) The Secretary of State did not disclose any of the material on which he based his decision, even though it was only the “most important material” on which the decision was based which could not be disclosed.

(ii) If the timing of the decision was dictated by the belief that Dr Murungaru was planning to visit the United Kingdom in early August, then there was sufficient time to give him an opportunity to make effective representations against his proposed exclusion before then. After all, the timescale for giving Dr Murungaru an opportunity to make representations did not need to be more than a few days. In Moon, it was held that there was no reason why the Secretary of State could not have informed the individual concerned of his proposed decision to exclude him and the reasons for it a week or so before the individual was due to travel, and that, having failed to do so, the Secretary of State should hear and consider representations within two days of the court’s judgment.

(iii) If the Secretary of State was eventually able to inform Dr Murungaru that he had been excluded because of increasing concerns over his involvement in corrupt practices while he had been in the United Kingdom, why could he not have done that when the decision was made?

(iv) This is not a case in which it is obvious what the diplomatic or national security reasons are for non-disclosure. Allegations of corruption are unlikely to raise issues of national security, and if the need to maintain good diplomatic relations with the Government of Kenya lay behind the non-disclosure, it is said that excluding a cabinet minister with no explanation about how his “character, conduct and associations” made his presence in the United Kingdom not conducive to the public good was more likely to damage diplomatic relations rather than preserve them. If the Government’s strategy was indeed to press the President of Kenya to take action against governmental figures implicated in corruption, one might have thought that any evidence of corruption should be revealed.

[24]In my judgement, none of these arguments justify quashing the Secretary of State’s decision without the court looking at the material for itself. As for (i), although the Secretary of State must, of course, give such reasons as he can without compromising the interests he is seeking to protect, it may be that once the “most important material” could not be disclosed, there was either virtually nothing left to disclose, or that what was left to disclose would not have enabled Dr Murungaru to make effective representations. As for (ii), even if there had been time before Dr Murungaru’s anticipated arrival in the United Kingdom to give him the opportunity to make effective representations against his proposed exclusion, the fact remains that the Secretary of State took the view that the reasons could not be disclosed to him save in the most attenuated form. As for (iii), it may be that the Secretary of State could have told Dr Murungaru at the time of the decision what Dr Murungaru was subsequently to be told, but the fact is that what he was subsequently told about his alleged involvement in corrupt practices (admittedly not about his alleged involvement in them in the United Kingdom) was not enough to enable Dr Murungaru to make any effective representations then. That is what Dr Murungaru’s own solicitors have said. As for (iv), I do not think it obvious that disclosing the fact that a prominent politician from abroad is suspected of having engaged in corrupt practices in the United Kingdom is incapable of raising delicate issues of diplomacy or sensitive issues of national security. Once it is recognised that they might, the court has little option but to look at the material relied upon by the Secretary of State at the time he made his decision to see whether they do or not.

[25]Finally, Mr Singh pointed to the serious implications for Dr Murungaru – to which I have already referred – of the abrupt revocation of his visa when there were still over two months before it was due to expire. That made the need for him to be afforded the opportunity to make effective representations all the more compelling. There is an echo of thinking of that kind in R v Secretary of State for the Home Department ex p. Fayed

[1998] 1 WLR 763

, in which Mohammed Fayed, the prominent Egyptian businessman, and his brother challenged the decision refusing them naturalisation as British citizens. As Phillips LJ (as he then was) said at p. 787F-G:

“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 or 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 this result.”

However, Lord Woolf recognised that even then disclosure of the material to enable effective representations to be made might be inappropriate. Having stated that the Secretary of State was not required “to do more than to identify the subject of his concern in such terms as to enable the applicant to make such submissions as he can”, Lord Woolf added at pp. 776H-777A:

“In some situations even to do this could involve disclosing matters which it is not in the public interest to disclose, for example, for national security or diplomatic reasons. If this is the position then the Secretary of State would be relieved from disclosure and it would suffice if he merely indicated that this was the position to the applicant who if he wished to do so could challenge the justification for the refusal before the courts. The courts are well capable of determining public interest issues of this sort in a way which balances the interests of the individual against the public interests of the state.”

Thus, Lord Woolf acknowledged that even when the impact of the adverse decision on the individual may be very significant, non-disclosure may still be appropriate, provided that the court is able to review the judgement of the decision-maker that disclosure of the relevant material is outweighed by other considerations.

[26]For these reasons, I cannot go along with the primary contention advanced on Dr Murungaru’s behalf that this claim for judicial review can be decided in Dr Murungaru’s favour without the court inspecting the material contained in the schedules to the PII certificate. By the same token, I do not believe that it can be decided in the Secretary of State’s favour either without an inspection of that material. It was argued on behalf of the Secretary of State that there simply was not time to give Dr Murungaru an opportunity to make effective representations against his proposed exclusion because although it was anticipated that he would not be returning to the United Kingdom until early August, he was entitled to return at any time. So the decision to exclude him had to be made when it was. The flaw in that argument is that there was no evidence as to precisely when, after the grant of the visa on 9 April 2005, the Secretary of State was informed of the increasing concerns about Dr Murungaru’s involvement in corrupt practices while he had been in the United Kingdom. If, for example, the Secretary of State had been informed of that at the beginning of May, he should, on his own argument, have proceeded then to exclude Dr Murungaru from the United Kingdom rather than to have waited until the Foreign and Commonwealth Office informed him that Dr Murungaru’s return to the United Kingdom was imminent.

[27]Again, it was at one stage being argued on behalf of the Secretary of State that since Dr Murungaru chose not to make any representations once his solicitors were informed that his exclusion had been based on increasing concerns about his involvement in corrupt practices while had been in the United Kingdom, he was recognising that nothing could have been gained if Dr Murungaru had been told before the decision was made about what the Secretary of State was proposing to do and why. But there is a difference between making representations at a time when a final decision has not been made, and making representations much later in the hope of procuring a change of stance relating to a decision which has already been made, even if it had not then been publicly known. As I have already said, the additional information which Dr Murungaru was given about the increasing concerns over his involvement in corrupt practices was so unparticularised that no sensible representations could have been made in response to it.

[28]Once these arguments have been put to one side, the only justification for not giving Dr Murungaru the opportunity to make effective representations was that, in the view of the Secretary of State, the interests of national security or diplomatic relations (or both) outweighed the desirability of giving Dr Murungaru the reasons for his proposed exclusion from the United Kingdom. While acknowledging that the court must be the ultimate arbiter on the topic, and while recognising that the court may well want to see the material for itself, Mr Jonathan Crow for the Secretary of State submitted that the court did not have to examine the material to decide whether the Secretary of State got the balance right. But he recognised that that was tantamount to arguing that this was a case in which it was inappropriate for the court to go behind the Secretary of State’s own assessment of where the balance lay, and he did not advance any principled basis for that assertion. And if the only way for the court to review the Secretary of State’s assessment of where the balance lay is to look at the material itself, that is what the court must do.

[29]On this aspect of the case, Mr Singh developed a number of submissions designed to show that the court is generally regarded as well equipped these days to consider issues of national security and diplomacy. The modern view is that these issues are no longer non-justiciable, and that the courts should not simply accept the ipse dixit of the executive on such topics. I shall bear those submissions in mind when I consider the material for myself. (2). Post-decision unfairness

[30]Although there is no general duty in public law to give reasons for decisions, there are many cases where the nature and impact of the decision requires that reasons be given as a routine aspect of procedural fairness. Decisions to exclude someone from the United Kingdom, especially someone who had recently been granted a visa to visit the United Kingdom, would normally be such a case. The need for the decision to appear aberrant would not normally be a pre-requisite for the duty to give reasons to arise in such a case. But just as considerations of national security or the dictates of diplomacy may justify a departure from the steps which would normally be regarded as necessary before a decision is made, so too they may justify a departure from the usual requirement to give reasons for a decision after it has been made.

[31]To quash the decision excluding Dr Murungaru from the United Kingdom because reasons were not given for it without looking at the material on which the decision not to give those reasons was based would be wholly inappropriate. It is unnecessary to canvass the arguments again in this context. Whether the Secretary of State can justify the decision not to give the reasons which reveal the evidence which implicated Dr Murungaru in involvement in corrupt practices in the United Kingdom depends on what that evidence was, and whether its non-disclosure was justified by the need to maintain good diplomatic relations with Kenya or on national security grounds. To make that assessment, I must examine the material myself. (3). The infringement of Dr Murungaru’s Convention rights

[32]

Art. 6(1) of the Convention

provides, so far as is material:

“In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

This right to a fair hearing may be impaired if a particular measure impinges on the effectiveness of an individual’s recourse to the judicial process. An example of that could be the withholding of information relating to the reasons why a decision being challenged in the courts was made. However, Art. 6 does not cover decisions to exclude someone from overseas from the United Kingdom: see, for example, Maaouia v France

(2001) 33 EHRR 42

. Accordingly, Art. 6(1) is only engaged if some other right is engaged. That is accepted by Mr Singh, which is why Dr Murungaru’s claim under Art. 6(1) is put on the basis that his rights under Art. 1 of the First Protocol are engaged. Art. 1 of the First Protocol provides, so far as is material:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law …”

Dr Murungaru’s case is that he had a contract with doctors in the United Kingdom to provide him with continuing medical treatment. Indeed, his visa was granted so that he could obtain that treatment. The revocation of his visa meant that he was unable to enjoy the benefits of that contract. That constituted an interference with “the peaceful enjoyment of his possessions”, since the term “possessions” includes intangible property rights such as contractual rights.

[33]The Secretary of State’s case is that Art. 1 of the First Protocol was not engaged in this case. Two arguments were advanced. The first related to the lack of evidence about Dr Murungaru’s contract with his doctors. Mr Singh accepted that there had to be a contract in existence at the time of the Secretary of State’s decision to exclude Dr Murungaru from the United Kingdom if Art. 1 of the First Protocol was to be engaged. The only evidence about the existence of such a contract is a single sentence in a witness statement made by Richard Stein, Dr Murungaru’s solicitor. Having referred to a team of specialists in London who were contacted by Dr Murungaru’s Kenyan doctors to see if they were prepared to treat Dr Murungaru, Mr Stein said:

“The Claimant contracted with this team of specialists that they would provide him with a course of surgery and post-operative treatment and review in return for payment.”

[34]If the contract was reduced to writing, it has not been produced. And whether it was in writing or not, the court is unaware of its terms. It was therefore argued on behalf of the Secretary of State that it is questionable whether Dr Murungaru could have required the doctors to treat him whenever he returned to the United Kingdom. No doubt they would have been happy to do so, but in the absence of evidence the proper analysis is said to be that they would be providing their services under a separate contract whenever he returned to the United Kingdom for treatment. I cannot go along with this analysis. The evidence is that the doctors continued to provide him “with a course of surgery and post-operative treatment and review”, which suggests that the contract was an umbrella one covering the whole of the treatment which the injury to Dr Murungaru’s arm required.

[35]The other ground for saying that Art. 1 of the First Protocol was not engaged was based on

Art. 1 of the Convention

, which provides that the high contracting parties shall secure to everyone “within their jurisdiction” the rights and freedoms defined in section 1 of the Convention. Although those rights and freedoms include Art. 1 of the First Protocol, any interference by a public authority with Dr Murungaru’s rights under Art. 1 of the First Protocol would not be rendered unlawful by virtue of section 6 of the Human Rights Act 1998 because he was not within the jurisdiction of the United Kingdom.

[36]Mr Crow did not develop this argument save by referring the court to certain passages in R (Quark Fishing Ltd.) v Secretary of State for Foreign and Commonwealth Affairs

[2005] 3 WLR 837

. That case turned on its unusual facts – in particular that the protection afforded by Art. 1 of the First Protocol had not been extended to the territories in whose waters the claimant wished to fish. In any event, that case related to the claimant’s property rights outside the United Kingdom. The present case is concerned with Dr Murungaru’s property rights in the United Kingdom, because the medical treatment which constituted the right which he claims has been infringed was to take place in the United Kingdom. It would be odd if the rights of people living overseas who own property in the United Kingdom were not protected. Mr Crow did not seek to argue that.

[37]It follows that the decision to exclude Dr Murungaru from the United Kingdom amounted to a sufficient interference with his contractual rights as to engage Art. 1 of the First Protocol. Indeed, it amounted to a deprivation of those rights because even though it would have been possible for Dr Murungaru’s medical team to treat him outside the United Kingdom, the contract must be regarded as having contemplated that they would be treating him in the United Kingdom. In these circumstances, the question to be addressed is whether Dr Murungaru’s exclusion from the United Kingdom with the consequence which it would have on his contractual right to be treated in the United Kingdom was(a) provided for by law and

(b) in the public interest.

[38]If Dr Murungaru’s exclusion from the United Kingdom was to be provided for by law, it was necessary for the Secretary of State to have acted fairly in deciding to exclude him. Whether he acted fairly depends on what the requirements for fairness were in this particular case. Accordingly, whether Dr Murungaru’s exclusion was provided for by law depends on the view which the court takes once it has seen the material on which the Secretary of State’s decision was based.

[39]Whether Dr Murungaru’s exclusion from the United Kingdom was in the public interest depends on(a) whether the public interest required his exclusion immediately, rather than, say, waiting for the completion of his treatment or the expiration of his visa, and

(b) whether his immediate exclusion with the consequence that he would not be able to have his medical treatment continued in the United Kingdom was a proportionate response to the interest which his immediate exclusion was seeking to protect. These issues cannot be answered definitively until the court has seen the material on which the decision to exclude Dr Murungaru was based, but it is important not to exaggerate the effect of his inability to have his medical treatment continued in the United Kingdom. The surgery he required had already been carried out, and he had already returned on one occasion to the United Kingdom for a post-operative review of his condition. As Mr Crow pointed out, if Dr Murungaru was truly in need of medical treatment of such a specialist nature that it could not be provided in Kenya, one might have expected him to seek medical treatment in another country with more sophisticated facilities. He has not said that he has done that. Moreover, apart from asserting that his doctors in Kenya were struggling with his condition, making it necessary for him to receive regular treatment and dressings, he has not provided any medical evidence in support of his need for continuing treatment.

[40]Two consequences flow from all this. First, the outcome of Dr Murungaru’s claim that his exclusion from the United Kingdom infringed Art. 1 of the First Protocol has to await my consideration of the material on which the decision was based. Secondly, Art. 1 of the First Protocol having been engaged, it is necessary to return to Art. 6(1). Limitations on the right of effective access to the courts and of a fair hearing by the non-disclosure of relevant information may be permitted in certain cases. But that will only be permissible in those cases where the court looks at the material in question – perhaps with the benefit of a special advocate appointed by the court – to determine whether its non-disclosure was justified and a proportionate response to the interest which the Secretary of State was seeking to protect. It follows that the outcome of Dr Murungaru’s claim that the non-disclosure of the material infringed Art. 6(1) will also have to await that exercise. (4). Transit through the United Kingdom

[41]The unchallenged evidence is that the United Kingdom is the central hub for travel from Kenya to other European destinations and other parts of the world such as the United States and Canada. Denying Dr Murungaru access to the United Kingdom as a transit passenger may make it more difficult for him to travel to those destinations. Sufficient evidence of Dr Murungaru’s participation in corrupt practices in the United Kingdom may justify his exclusion from the United Kingdom. But since there is nothing that he cannot do in a transit lounge which he cannot do from Kenya, it is said to be irrational to exclude him from access to the United Kingdom for the purpose of facilitating his international travel, provided that he does not enter the United Kingdom.

[42]I do not agree. The Secretary of State was not only concerned with preventing Dr Murungaru from participating in corrupt practices in the United Kingdom. He also wanted to give practical support for the new Kenyan President’s initiative to stamp out corruption. Barring Dr Murungaru’s physical presence in the United Kingdom for all purposes was a manifestation of that support. It cannot be said that thinking of that kind was irrational.

Conclusion

[43]For these reasons, I adjourn further consideration of this claim for judicial review. There will have to be another hearing at which I shall hear argument on how the material on which the Secretary of State based his decision and the contents of the confidential schedules to the PII certificate should be considered by me. As I said at the conclusion of the hearing, I do not want to put anyone to the expense of having to attend court when this judgment is handed down, and I leave it to the parties to let my clerk and the Administrative Court Office know how long they think the further hearing should take, bearing in mind that if I decide that a special advocate should be appointed, there will have to be another hearing for him or her to make such representations on the material as may be appropriate. Finally, I regret the lapse of time between the hearing and the handing down of this judgment, but counsel, I know, are aware of the other pressures on my time which have been responsible for that.