MH & Ors v Secretary of State for the Home Department (Rev 1) [2008] EWHC 2525 (Admin)

[2008] EWHC 2525 (Admin)Case No CO/4391/2007CO/2241/2008, CO/1076/2008, CO/4191/2008,CO/8176/2007, CO/9125/2007, CO/9703/2007CO/8357/2007, CO/8598/2008, CO/8598/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31st October 2008
Before
THE HON MR. JUSTICE BLAKE
Between
M. H.ClaimantsB. M.ClaimantF. M.ClaimantF. T. and N. T.ClaimantI. G.ClaimantA. H. K.ClaimantG. A.ClaimantZ. G.ClaimantA. M.ClaimantA.SClaimantThe Secretary of State for the Home DepartmentDefendant
Stephanie Harrison (instructed by Tyndallwoods) for M. H.Rebecca Chapman (instructed by Deighton Guedalla) for B.M.Mr. Rambert de Mello (instructed by AS Law) for F.M.Mr Manjit S. Gill QC and Mr. Danny Bazini (instructed by Trott & Gentry) for F.T. and N.T.Stephanie Harrison (instructed by Tyndallwoods) for I.G.Amanda Weston (instructed by Bates, Wells and Braithwaite) for AHKMr. Sanjay Lai (instructed by Dotcom) for G.AMr. Edward Grieves (instructed by Trott & Gentry) for Z.G.Basharat Ali (instructed by Aman Solicitors Advocates (London) for A.M.Stephanie Harrison (instructed by Tyndallwoods) for A.S.Mr. Tim Eicke and Kate Grange (instructed by the Treasury Solicitor) for Defendan tHearing Hearing date: 24 th September 2008
Judgment

The Hon Mr. Justice Blake:

[1]There is before the court an application for directions for the hearing of a number of applications for judicial review of decisions by the Secretary of State refusing applications for naturalisation as British citizens. Anonymity orders have been made in all cases by consent having regard to the potential damage to the claimants’ reputation and private life that would arise from the repetition of the untested allegations made in respect of them.[2]The common theme between each of the cases is that the defendant Secretary of State for the Home Department has concluded that it is not possible to give a detailed explanation for the reasons refusing the application. In some of the cases, information has been given of an association with either named individuals who have notoriety in the context of Islamic extremism, in other cases a general allegation of undesirable nexus with groupings considered as hostile to the UK, its citizens and armed forces is indicated, in yet another case no reasons are given at all. In each case it is intimated that the requirements of national security prevent further disclosure. The outline histories and reasons for the decision are set out in tabular form as follows:- Claimant Reasons for refusal Immigration. status Permission status 1. MH “association with known Islamist extremists, including a number who have been arrested under anti-terrorism legislation” “involvement in the procurement of false documents” 5.9.00 Arrives UK 24.03.03 ILR marriage Granted 18.1.08 Collins J 2. BM “past involvement with ..GIA and your contact with a number of Islamist extremists in the UK including members of the ..LIFG.. Both groups. are proscribed organisations” 18.03.05 ILR as a refugee following appeal 1.11.07 wife granted citizenship Permission granted and adjourned for directions 4.06.08 Silber J 3.FM “preached extreme Muslim views” “openly preached anti-Western views and voiced sympathy with Usama Bin Laden at the Hatherley Street Mosque Liverpool” 13.4.00 P/A refused ELR granted UK born spouse Granted 26.02.08 Sullivan J 4. FT and ST “association with the PKK prior to the group’s proscription” Resident in UK since 1991 13.11.99 Both recognised as refugees Granted 12.02.08 DHCJ Supperstone 5. A (IG) “past association with members of extremist Islamic organisations and your current association with individual in this country some of whom have links to or are deemed to be members of ..LIFG or Al-Quaida. We strongly judge that these individuals are engaged in facilitation and fund raising in support of the insurgency in Iraq” 1.11.94 Refugee status 27.9.00 ILR 23.05.07 Wife and son granted Citizenship Adjourned for directions 01.02.08 Munby J 6. AHK “association with Iranian elements hostile to British national interests” 27.10.99 IRL as refugee 1.08.07 Wife Granted citizenship Adjourned for permission and directions 24.04.08 HHJ Hickinbottom 7. GA “past activities on behalf of the… DHKP-C which is proscribed” 1995 ILR as refugee with spouse and children Family members granted citizenship Paper refusal 18.02.08 HHJ Hickinbottom 8. ZG “past activities with Dev Sol and its successor…DHKP-C which is proscribed” 3.3.94 ILR refugee 8.03.5 Family members Granted citizenship List for directions 31.07.08 Silber J 9. AM “close association with well known Islamic extremists” “including the extremist spiritual adviser Omar Othman @ Abu Qatada whilst knowing of his extremist views and practices” 7.11.02 Refugee status following appeal Wife and children Granted citizenship Paper refusal 05.02.08 Wyn Williams J 10. AS “it would be contrary to the public interest to give reasons in this case” Lodged 4.09.08[3]All the claimants have been refused British citizenship on the grounds that the Secretary of State was not satisfied that they were of good character as required by Schedule 1 to the British Nationality Act 1981 (BNA). In all other respects the claimants qualify for naturalisation. They are UK residents who have been given indefinite leave to remain and have lawfully resided here for the requisite number of years and many for much longer periods. Most have been recognised as refugees in the country, sometimes as a result of connection with the same groups that are used to deny them citizenship. None have been refused refugee status on national security grounds. Nearly all have close family: spouses and dependent children who either are British citizens or have been granted this status at the same time as the claimant has been refused it. None have been convicted of any criminal offence in the UK or elsewhere; none are facing deportation or other proceedings to deprive them of their status as refugees or UK residents. None are, or have been, subject to applications for control orders. As far as the court is aware there are no pending criminal or related proceedings outstanding against the claimants, and there has been no indication of a police investigation that might lead to such proceedings in the foreseeable future. The claimants have not themselves disclosed any discreditable conduct or connections that might have led to an adverse conclusion; all deny any association with terrorism or Islamic extremism.[4]All the claimants rely as a starting point on the observations of the Court of Appeal in R v SSHD ex p Fayed [1998] 1 WLR 76 where Lord Woolf concluded that judicial review would be available as a remedy where a decision refusing naturalisation was taken in breach of the common law requirements of natural justice or fairness, even where the statutory regime at the time did not require the Secretary of State to give reasons for his conclusion and where any decision was said not to be capable of a legal challenge on the merits. In that case the court recognised that common law fairness was engaged in part as a result of the potential damage to reputation.[5]The claimants submit that if this was the outcome in a challenge under the unpromising regime of the BNA 1981 before amendment, the principles of Fayed are even more relevant to the present cases where the amendment made by the Nationality Immigration and Asylum Act 2002 has removed the statutory restraint on the giving of reasons. It is clear that at common law the requirements of fairness are flexible and take into account the context, the interests at stake, and the practicalities of the case.[6]The defendant however points out that Lord Woolf MR at 777A-B also recognised that there may be a class of case where national security is engaged where the imperative requirements of such a compelling public interest prevent the disclosure of information that would otherwise be communicated in order to make the decision fair. These cases, it is submitted, are pre-eminent examples of what Lord Woolf had in mind and, therefore, once the court is satisfied that national security is indeed engaged and prevents any further disclosure than that which has already been made, this concludes the judicial review proceedings in favour of the defendant.[7]The issue on which these cases were listed for directions is the extent to which, if at all, the tension between national security and the common law duty of fairness can be resolved by the appointment by the Attorney General at the request of the court of specially appointed advocates (SAA). I use the terminology adopted in the case of R (Roberts) v SSHD [2005] 2 AC 738 so as to contrast these common law discretionary arrangements from the statutory appointments made under the Special Immigration Appeals Commissions Rules.

The appointment of special advocates and SAAs

[8]It is well known that from the coming into force of the Special Immigration Appeals Commission Act 1997, the UK has a statutory scheme in the immigration context for the appointment of a special advocate to represent in closed session the interests of a person facing adverse Home Office action. The Act as originally drafted also embraced EEA cases but these are now referred to the Commission under Regulation 31 of the Immigration (EEA) Regulations 2000. The essential function of the Special Advocate (SA) is defined by the SIAC Rules 2003. It includes first considering whether any material which is claimed cannot be disclosed for national security grounds can in fact be disclosed in one form or another; second whether the decision in question is reasonable in the light of all the relevant information, whether open or closed. It is relevant to note that Rule 37(2) prevents the Secretary of State from relying on closed material unless a Special Advocate is appointed.[9]The statutory regime in the context of deportation or refusals of entry has been broadly replicated for cases where the SSHD proposes to restrict the liberty of the person by means of a control order pursuant to Prevention of Terrorism Act 2005 (CPR Part 76). In addition to this legislative introduction of a special regime, the courts have increasingly sought to address perceived defects in fairness between competing considerations by asking the Attorney General to appoint a specially appointed advocate where there is a clash between national security and a fair hearing. Special advocates are both security-cleared and security-trained and with the assistance of the Special Advocates Support Office (SASO) develop an expertise in assessing and challenging security claims that a judge with no previous experience of this field would not have. In other cases where there are public interests other than national security against disclosure of information, special counsel can and have been appointed to represent the interests of a party who does not have access to the relevant data in a wide variety of courts, even where Parliament has not provided a statutory scheme for such an appointment.[10]Moreover, since the decision of the House of Lords in the case of R v H [2004] 2 AC 134 specially appointed advocates have been deployed in the context of criminal trials in cases where the ex parte procedure for a judicial ruling on public interest immunity endorsed in the earlier case of R v Davis [1993] 1 WLR 613 is considered to be unsatisfactory, given the particular issues at stake and the observations of the Human Rights Court in the case of Rowe v United Kingdom (2000) 30 EHHR 1.[11]Special advocates have not been greeted with universal enthusiasm since they were first used. Claimants or immigration appellants have tended to resist the use of an SA to deny them the ordinary course of an immigration or other appeal, because such procedures substantially restrict their ability to prosecute an appeal. It is also important to realise that although the need for the system was inspired by some remarks by the European Court of Human Rights in the case of Chahal v UK (1997) 23 EHRR 413, based on what it had been led to believe was the system still in use in Canada at the time, the Court at Strasbourg has never yet decided that a special advocate has provided a sufficient degree of procedural fairness where human rights considerations require a fair hearing of sorts: see Al Nashif v Bulgaria (2003) 36 EHHR 37 at [97]. In the case of Chahal, because national security was said to be engaged, the appellant was deprived of any immigration appeal as to the merits against the decision to deport despite long residence, presence of close family and legitimate concerns as to his safety on removal. Neither statute nor the common law as understood at the time had provided for a fair hearing and the special advocate regime was a procedural improvement for a claimant.[12]Further, it has been held by the House of Lords that the use of a special advocate applying the restraints laid down in the rules does not necessarily provide a sufficiently fair system for examining the issues, certainly where European Convention rights protected by the Human Rights 1998 are engaged: see the decisions in MB and AF v Home Secretary [2008] 1 AC 440 at [35] and [43], and Roberts v Parole Board [2005] 2 AC 738. In Roberts although their Lordships were divided as to the outcome all were agreed that use of specially appointed advocates could never reduce the standards of fairness otherwise required but they could only be used to increase fairness where the context otherwise permitted exclusion of the party concerned from the material.[13]With the great increase in national security cases following the events of September 2001 and faced with the legislative choice between no disclosure at all, or disclosure to a special advocate, most appellants have been willing to accept the appointment and achieve as much assistance by way of disclosure that the system can allow. Further the request for an SAA has broadened to other areas of legal challenge outside the statutory scheme in a number of different courts for a number of different reasons. Such are the numbers of cases where special advocates are being used, that there is considerable pressure on those cleared to act in this role and the administrative support provided to them by SASO. With this in mind the Attorney General has become reluctant to accede to requests to appoint special advocates or specially appointed advocates in circumstances where it is concluded that they are merely perceived as desirable rather than being necessary.

The contentions of the parties

[14]With this brief summary by way of background, it is necessary to turn to the central issue in the present application for directions. The claimants submit that where national security is relied on as a reason why adequate disclosure cannot be made to a claimant before or after an adverse decision is taken on a naturalisation application, then the court should ask the Attorney General for an SAA to be appointed to assist the interests the claimant in determining the two issues that are or may be engaged namely: i. Can more disclosure be made to the claimant? and ii. Is the decision reasonable on the available material open or closed?[15]The defendant by contrast has submitted that the appointment of a specially appointed advocate is not necessary and in all the cases, whether before or after the grant of permission, the court should examine the closed material for itself in order to determine whether the SSHD has a valid claim for withholding further data. It is submitted that the appropriate procedure should be a hearing pursuant to CPR 31.19 whereby the defendant will justify the claim to public interest immunity in withholding the documents or any further disclosure of information on which reliance is placed in these cases.[16]In support of these submissions the defendant seeks to rely on two recent decisions in support of her contentions. In the first, R (Malik) v Manchester Crown Court [2008] EWHC 1362 Admin, the Divisional Court held that it was only in exceptional cases where a specially appointed advocate was needed by way of departure from the normal rules of the court. The context for the decision was an application by the Chief Constable under Schedule 5 Terrorism Act 2000 for the production of journalistic material relating to a pending criminal investigation against another person who had been interviewed by the claimant. Part of the hearing was heard in private with the claimant and his lawyers excluded. There were open and closed judgments. The court concluded that the interferences with a journalist’s freedom of expression were justified and in accordance with the law laid down by Parliament. It is to be noted that apart from requiring production of journalistic material that the claimant was unwilling to supply voluntarily, neither the police nor the court were making an adverse determination of the claimant’s rights. He was not facing prosecution or other sanction. The impact on the claimant of the disclosure being sought could be examined without the need to go into secret session.[17]The Divisional Court held that the judge hearing the application was not wrong in refusing to request the appointment of an SAA. It noted the comments of Lord Bingham in R v H and Lord Carswell in R (Roberts) v Parole Board that the SAA procedure was only to be used in rare and exceptional cases and as a course of last and never first resort. In my judgment, it is important that these comments are not taken out of context. A general doctrine of “exceptionality” is difficult to apply unless there is an understanding of the norm. As I read the speech of Lord Carswell in Roberts he was emphasising that use of the SAA procedure should not become a matter of routine so as to deprive the prisoner of an open parole board hearing. The SAA procedure was a last resort in Roberts because the first resort was an open hearing with all the relevant data disclosed to the prisoner so he could properly present his case. In R v H it was concluded that the procedure for determining public interest immunity (PII) claims in criminal law was usually sufficient to secure fairness to the defendant because it was well known that if any material data of assistance to the defence existed then the interest of a fair trial trumped those against disclosure and either the judge would order the material to be produced or the criminal proceedings would need to be abandoned. With such a level of procedural protection, it would not be routine to require the additional protection of an SAA.[18]In Malik the court recognised the probing role that a judge can perform on an application for production of documents. The context is familiar to an experienced judge who can ask the informant such questions as may be necessary to ensure that statutory requirements are satisfied and production orders and search warrants are truly proportionate to the interest at stake. Further the decision in Malik has to be seen in the context of what was happening at that hearing. Mr. Malik was able to deploy his case to the full in open session. As the court noted [105]:
“The closed hearing was not and was not likely to be, concerned to investigate the consequences of an order for the claimant…. The claimant could not give any evidence on [closed] issues and could not give instructions as to facts which undermine the evidence of [the police officer]”
[19]Neither Malik nor the earlier decision in R v H on which it is based were cases where the police were seeking to rely on secret evidence against the claimant at a trial or hearing. This is by way of contrast to what the defendant seeks to do in the present group of cases. Accordingly I would not have found Malik of itself an authority that informs as to the principles applicable to procedural fairness in the present case.[20]More formidable by way of relevant authority deployed by the defendant is a very recent decision of the Court of Appeal, handed down since the preparation of the skeleton arguments for the present application. In the case of Murungaru v SSHD [2008] EWCA Civ 1015 a Kenyan national and cabinet minister who had been granted prior multiple entry clearance to come to the UK as a visitor for medical treatment had his documents revoked at the last minute without warning or opportunity to make representations. The decision was challenged by judicial review in 2006. Keith J who first considered the claim concluded that it would be necessary for the court to be apprised of the closed reasons for the action taken before determining whether this course of action was justified. He also concluded that the decision infringed a Convention right contrary to Protocol 1, namely the right to enjoyment of a possession, in this case the multiple entry visa [2006] EWHC 2416 (Admin) 4th October 2006. The matter was adjourned over and came before Mitting J. He relied on and adopted the conclusion of Keith J that a Convention right was engaged and therefore applied the test of “as fair as possible” that he derived from relevant ECHR jurisprudence and invited the Attorney General to appoint an SAA [2006] EWHC 3726 (Admin) 30th November 2006. It should be observed that there was no right of appeal against the decision in question under s.82 NIAA 2002 and so statutory framework for a SIAC appeal by application of s. 97 of that Act.[21]The SSHD appealed to the Court of Appeal against the issue of these directions. The Attorney General was separately represented and made submissions as to the potential strain on the system of SAs/SAAs if inappropriate requests were made by the court. The Court of Appeal was concerned with the possible constitutional ramifications if the Attorney General considered she was unable to accede to the court’s request for an SAA.[22]Upon further consideration of the case, the Court of Appeal concluded first that the standards of Article 6 of the ECHR were not applicable and secondly that no Convention right was engaged. It therefore concluded that Mitting J was wrong to apply the standard of “as fair as possible” when deciding to appoint an SAA. The correct approach in the factual context before it was whether an SAA was necessary as an exceptional departure from the norm. It applied the case of Malik. The court then looked at the closed material for itself, found it straightforward and unproblematic and discharged the order for an SAA.[23]The leading judgment of Sedley LJ referred to the decision of Malik and noted : i. at [23] that the observation of that court that the judge could probe the case for himself unaided by an SAA needed to be tempered by the need to gauge the risk that probing the material may draw the judge from the bench into the arena; ii. at [24] the observation that despite the context of H it doubted whether the court should be more willing to ask for an SAA in other contexts.[24]The decision in Murungaru to revoke the request for an SAA turns on the conclusion that both Keith J and Mitting J were wrong to consider that a Convention right was engaged and that therefore Convention standards of procedural fairness were applicable. Sedley LJ said at [33] that Mitting J’s conclusion would have been right if the premise was correct. He concluded however that it was not and a well established line of Convention authority demonstrated that the fair trial standards of Article 6 did not apply to immigration decisions and this case law could not be circumvented by assuming that immigration permission is a property right within the meaning of Protocol 1 Article 1.[25]Having disposed of Convention considerations, Sedley LJ returned to common law fairness. The court decided to examine the closed material for itself to see if it justified the expedited procedure adopted in that case. At [39] the court concluded that “applying the principles that ought to govern the appointment of a special advocate in proceedings of this kind…there is no reason to think that a judge…cannot do what a special advocate might otherwise do by way of critical examination of the material”.[26]Mr. Eicke appearing for the defendant reminds me that this is a binding and very recent conclusion of the Court of Appeal. I readily accept that it is authority for the proposition that the court charged with making the decision as to how to proceed in a case where closed grounds are relied on, can examine the closed material before deciding how best to proceed. Beyond that it is necessary to consider what is meant by “cases of this kind”, and what is the contemplated norm from which the exceptional case is the departure?[27]I cannot readily accept that Sedley LJ was indicating that a secret hearing of the merits of judicial review claims where national security grounds are relied on which deprive a claimant of what he or she would otherwise expect to receive, is the new normal and that only exceptional circumstances would require the appointment of a special advocate. That would be a very dramatic step entirely unsupported by the context and ratio of either the cases of Malik andH and an advance into uncharted waters contrary to the basic principle that justice is open and inter partes . Indeed, it would undermine the recognised need for statutory SAs in immigration cases where the procedural requirements of Article 6 are not generally not engaged.[28]Sedley LJ at [15] noted the recent decision of the Canadian Supreme Court in the case of Charkaoui v Minister of Citizenship and Immigration [2007] 1 SCR 350 that re-introduced special advocates into the Canadian system of challenges to national security decisions. Although the suggestions of the European Court of Human Rights in the case of Chahal were said to have been inspired by Canadian practice, it emerges from Charkaoui that this practice had never been as extensive as was first thought and had fallen into disuse at the time of the decision in Chahal. Canadian judges considering national security objections to immigration decisions had therefore developed a practice of ex parte consideration of the evidence withheld. However in the light of the UK experience of the Special Advocate system, the Supreme Court now reviewed whether such a practice met constitutional standards and concluded that in certain cases it did not. Thus it seems that Canada, inspired by UK practice based on the ECHR, is moving back towards a SA system, whilst according to Mr. Eicke’s submissions founded on Murungaru the UK may be moving away from it and developing the judge only examination of the material that was found in Charkaoui to be deficient as to the requisite standard of fairness[29]The Secretary of State’s reliance on the Court of Appeal decision in Murungaru was indeed far reaching. I understood Mr Eicke to submit : i. The general test for the appointment of an SAA in any judicial review proceedings should be a high one of exceptionality. ii. Private examination by the judge of closed material for which public interest immunity is claimed should always be the starting point even though it may be decisive of the judicial review application. iii. Such an examination in the absence of the claimant or his legal representatives usually provides an acceptable procedure at common law. iv. It may even be sufficiently fair where the court assumes or decides that a Convention right is engaged. v. An SAA should only be appointed if following the private hearing the Court decided that further disclosure should be made and the SS disagreed with the Court’s decision.

Discussion:

[30]Murungaru was an immigration decision where there were some indications of the undesirable conduct of which the claimant was suspected and expressed concern that he might engage in such conduct if permitted to enter the United Kingdom. The claim was concerned with whether there was good reason for the Secretary of State to act when she said she needed to. The claimant had established no right to reside in the United Kingdom, and had no family or other connections with this country apart from the reasons for his visits.[31]By contrast, the present cases concern nationality decisions in respect of people with substantial residence in the UK and settled family and private lives here. The claimants submit:- i. First they should have had an opportunity to address any adverse factor on which the SSHD was minded to base a negative decision at least by way of the most substantial gist of the factors that could be given without endangering national security. ii. Secondly, if a negative decision was still maintained they ought to be given some explanation of why this was the case despite the representations made, to ensure that no irrelevant or erroneous factor was taken into account and that the factors that were relied on justified the conclusion reached.[32]The claimants submit that the closed material goes to the heart of the decision under challenge. This is a different context from disclosure of unused material at a criminal trial or keeping some material undisclosed to third parties in production applications. It is also different to whether there was good reason not to give notice to a migrant of intended cancellation of a visa to prevent an imminent visit because of suspected corruption.[33]The subject matter of judicial review claims may vary but where the essence of the claim is a right to fairness, and a right to be given sufficient information to be able to make realistic representations it would seem peculiar if such a claim can be determined by the court secretly. In Lamothe v Commissioner of Police for the Metropolis [25th October 1999 unreported] the defendant Commissioner applied to a county judge in providing for an order that he did not have to reveal the grounds on which forced entry to the claimant’s premises was effected. The learned judge concluded that were reasonable grounds to make the entry and that further particulars should not be provided. On appeal the Court of Appeal set aside the order. Lord Bingham (CJ) observed “What happened here however is in my judgment something which cannot on any showing be regarded as acceptable since it violated fundamental rights of the claimants and cannot be allowed to stand”[34]Lamothe was cited with approval in R v H, and informs the principle re-affirmed in Roberts that neither an SA an SAA nor any other ex parte system can detract from fairness otherwise due to the claimant. I am conscious that Lamothe concerned a secret hearing on an issue where the burden of establishing lawful entry and arrest lay on the defendant, but I do not accept that the principle of open justice and a fair hearing is confined to those circumstances.

Conclusions on Murungaru

[35]In my judgment, to conclude either the applications for permission or the substance of the claims in the cases where permission had been granted on secret material, viewed in secret by the judge and one party to the contested proceedings would give rise to precisely the danger that Sedley LJ noted and warned against. The judge would inevitably be seen as descending into the arena and deciding the case without any informed input from the claimant. A judge may indeed be used to testing police claims of reasonable suspicion, but much less used to testing claims by the security service that disclosure of even a gist has deleterious impact on another public interest.[36]Despite all the limitations on the ability of the SA or the SAA to achieve substantive justice, the experience of those like Mitting J who have seen the SA system in action demonstrates that that it provides a benefit certainly favour in the field of submissions about disclosure. What is disclosed after an SA intervention is almost always considerably more than the executive proposed to give before it. In nearly ten years experience as a special advocate, I cannot recall an occasion when absolutely nothing was added to the appellant’s state of knowledge after the disclosure process was complete. I am aware that that experience is not unique.[37]In my judgment, the SA can perform a role that the court cannot readily do for itself. This may be by way either of prior negotiation or conscientious exploration of the material that is with-held and any underlying material on which it is based. SA’s often perform their own searches for publicly available material relevant to the issue in hand within the confines of their obligations. Material regularly comes to light in the public domain in one form or another that meets in part an objection to disclosure. This is particularly the case where there have been prosecutions or other proceedings brought against people who are alleged to have connections with a particular appellant. Sometimes inconsistencies in approach in respect of the same material between different agencies or even between different personnel in the same agency can be identified and undermine objections to greater disclosure.[38]This is a function that goes beyond the judge probing the reasons for an arrest, search or production warrant in the criminal context or the relevance of PII material to issues in contest in criminal proceedings. If the judge were to replicate this function of the SAA alone he or she may either become engaged in conflict with the defendant as to what is necessary or possible to disclose, or else be perceived by the claimant to be supine in failing to challenge adequately or at all the exaggerated contentions of the executive against disclosure. I therefore conclude that by contrast to the decision in Murungaru the SAA could perform functions that the judge could not or could not be readily expected to perform.[39]I further cannot agree in the present context that the appointment of the SAA is only necessary where the judge is minded to rule in favour of the claimant on the question of disclosure. The purpose of the appointment is not to enable the SSHD to defeat the requirements of fairness as determined by the court but to reduce the disadvantage to the claimant in not being able to make representations and submissions as to the propriety of disclosure in the first place. If the court were to decide that fairness required disclosure of the document or a gist of the information contained in the document and in the court’s view this could be achieved without compromising national security procedure, then in my judgment, the defendant is bound either to accept the decision or withdraw opposition to the claim in so far as the opposition depends on reliance on the material sought to be withheld. That is the position under both the SIAC Rules and the common law principles of PII in a criminal trial. It is also an outcome that the Attorney General is likely to have in mind when considering requests for appointment of SAA.

Right to a fair trial

[40]This conclusion does not determine the outcome of the present applications, where the debate is still focused on what the requirements of fairness are in the context of refusal of nationality applications. Mr. Manjit Gill QC took the lead in advancing propositions on behalf of the claimants that other counsel were by and large content to adopt, although significant supplementary submissions were also made by Ms. Harrison and Mr. De Mello and adopted by others concerning Article 8 that are noted below. At various times in the hearing he suggested that the claimants had a right to a fair trial of the contested issue as to whether they were of good character. He further submitted that the right to nationality was of such importance that the defendant could only refuse applications on character grounds if she in effect proved that a claimant was of bad character, rather than the claimant satisfying the defendant of the opposite.[41]I am unable to accept these submissions. In general terms with the abolition of citizenship by registration for adults, no claimant has a right to British citizenship but only a right to have an application fairly considered under the statutory scheme. The BNA makes it clear that the defendant must be satisfied that the applicant is of good character. The only person who can satisfy her is the applicant. A failure to do so after fair opportunity has been given to disabuse the SSHD of any provisional adverse views can result in a legitimate refusal of the claim. It is therefore not for the defendant to prove the existence of the disqualifying characteristic.[42]Further, I am of the opinion that the principle of common law fairness to be derived from the cases of Attorney-General v Ryan [1980] AC 718 and Al Fayed would be satisfied where a gist of the issues of concern would enable the claimant to make sensible submissions before an adverse decision is reached. Full disclosure of underlying documents or statements is unlikely to be either necessary or practical. The essence of the requirements of fairness in this context is an effective opportunity to disabuse the decision maker of some decisive adverse consideration. Even these requirements are subject to the over-riding interests of national security.[43]I am equally unable to accept Mr. Gill’s second submission that the full fair trial rights required by Article 6 ECHR applicable to the determination of civil rights and obligations should be applied in cases like those under present consideration. Decisions of the Secretary of State relating to naturalisation of aliens are exercises of public law discretion or judgment, and there is no civil right to acquisition of British nationality. For the same reasons as apply in immigration cases, disputes about refusal of nationality do not relate to the determination of civil rights or obligations.[44]More realistically, the claimants submit that in the particular circumstances of their cases, the right to respect for private and family life was engaged. They submit that the fact these claimants applied for British nationality is well known in their social circles even if the anonymity orders made by the court restrict further communication of this fact to the outside world. To be refused nationality on the grounds of extremist associations and/or opinions, is a very serious blow to the reputation of the claimants and the esteem within which they are held in their communities.[45]It would not be surprising if those who espoused extremist views in the context of Al-Qaeda related Islamic fundamentalism were regarded with revulsion by friends, neighbours and community associates in the United Kingdom. This damage to reputation affects not merely the claimants but their families; their spouses and children may suffer diminished reputation by virtue of their connection with the claimant.[46]None of the claimants face cancellation of refugee status or deportation but denial of British nationality on the grounds of terrorist sympathies or associations renders them vulnerable to immigration action by way of restriction, revocation and cancellation of their refugee and settled status in the UK. Given the reasons indicated I do not regard those risks as being merely theoretical. It further has a present adverse impact on their ability to travel abroad free from fear or arrest, detention or exclusion.[47]Many of the claimants have been recognised as refugees. This is a recognition that they cannot avail themselves of their country of nationality, and have to avail themselves of the surrogate protection of the country of refuge. If they do not acquire another nationality they are de facto stateless. There is an obligation under the Refugee Convention for the state of refuge to facilitate assimilation and the grant of its nationality. Article 34 of the Geneva Convention Relating to the Status of Refugees provides:
“The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.”
[48]The present policy of HM Government seems to be that in the absence of exceptional circumstances, stateless refugees with UK issued travel documents cannot seek diplomatic assistance from the UK Government. It would only be British nationality that would afford them a link to citizenship of the EU and ability to call on assistance from other member states as such. The evidence of Ms. Conlan filed on behalf of some of the claimants identifies this as a real issue with respect to one of her clients when unfounded allegations of extremist connections led to his detention abroad and HMG was unwilling to assist.[49]Given the impact on reputation, personal security, and statelessness I accept that in principle a refusal of an application for citizenship on the grounds relied on in these cases may have an impact on the private life of the applicant. Although the defendant has not sought to publicise the decisions in the press and the anonymity orders made by the courts were designed to prevent public opprobrium of an applicant’s character from resulting from a failure to satisfy the defendant that the threshold for citizenship is met, those who are aware that a claimant has failed to achieve British citizenship of extremist association could well face ostracism, and difficulties in employment, business and related social relations[50]The nearest Strasbourg authority that the claimants identify that may have a bearing on the issue is Turek v Slovakia ECtHR 14th February 2006 Application No 57986/00 where the applicant received a negative security clearance on the basis that state files had recorded him as being an agent for the former Communist regime. The European Court had accepted at an admissibility hearing in response to submission that any engagement of Article 8 was before Slovakia had acceded to the Convention that the continued deleterious effect on employment prospects of such a negative assessment defeated the inadmissibility contention [91] and [103]. There was a right of appeal to the courts against the decision but as this had taken an excessive period to determine Article 6 was engaged and violated [95] and [99].[51]The Court further concluded that the impact on name and reputation by the negative security clearance engaged the right to respect for private life under Article 8 [110] and of significance in the present context there was an implied procedural obligation under the Article to ensure that the respect for the Convention was practical and effective [111] to [113]. The Court did not consider that denial of the security file in this case was justified as it related to the dealings of the previous communist agency [115]. The Court summed up the position:- “In the present case the applicant was asserting his rights in the context of an interference with them which had been occasioned by state power and arguably without his knowledge. The courts considered it crucial for the applicant to prove that the interference was contrary to the applicable rules. These rules were however secret and the applicant did not have access to them. On the other hand the state- in the purpose of the SIS- did have full access. In those circumstances and irrespective of whether the placing of the burden on proof on the applicant was compatible with domestic law, that requirement placed an unrealistic burden on him in practice and did not respect the principle of equality. It was thus excessive. The applicant’s proceedings cannot therefore be considered as offering him effective protection of his right to respect for his private life”.[52]Mr. Eicke in reply submits that acquisition of nationality is not generally within the ambit of Article 8 and relies on the case of Karassev v Finland (App No 31414/96) where the Court in an admissibility decision said that it did not “exclude that an arbitrary denial of a citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual”.[53]In that particular case the refusal of the Finish authorities to register the claimant as a citizen because of their assessment that he became or remained a Russian citizen at the relevant time was held to be correct and not arbitrary. Nor did it have such consequences as the claimant was not facing expulsion or removal at the relevant time and he was able to obtain the necessary aliens registration documents and be eligible for social assistance.

Conclusions on Article 8

[54]I accept Mr. Eicke’s submission that mere denial of naturalisation will not of itself automatically engage Article 8. I further accept that the fact that such a refusal renders the claimant vulnerable to future immigration action is insufficient. The Convention is a practical instrument looking at the present rather than future hypothetical consequences of a challenged decision. However for similar reasons I conclude that imminent risk of expulsion is not always a minimum requirement before Article 8 of the Convention can be engaged.[55]In the present cases, the grounds for refusing naturalisation that the claimants would otherwise qualify for, do have an adverse impact on social reputation, render it more difficult to travel, and leave the claimants in a vulnerable state of either statelessness as refugees, or unable to obtain future security as to their continued residence here. Although it is not possible to penetrate too deeply in the facts of the individual cases on a directions hearing, I consider that cumulatively these factors may be said to affect the enjoyment of private and possibly also family life in the United Kingdom. Article 8 is therefore engaged, and justification of interference with the right of respect for the values protected by Article 8 (1) requires a measure of procedural fairness in accordance with convention norms.[56]The decision to refuse nationality will not be arbitrary or unjustified if it has been fairly considered and there is good reason to reach it, but this is precisely the issue engaged in this challenge in the first place. The question is what degree of procedural fairness is required to determine the merits of the case?[57]This is a very different class of case from Murungaru where a non-citizen was denied a visitor’s visa. The visa was not a possession within Protocol 1 Article and there was no sufficient connection with the UK by way of lengthy lawful residence, presence of close family and community connections here to come within arguable distance of Article 8.[58]In the case of Al Nashif v Bulgaria the Court observed at [123] “Even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information.”[59]At [136] it noted:- “where national security considerations are involved certain limitations on the type of remedies available to the individual may be justified. As regards secret surveillances and the use of secret information for screening job candidates who would have access to secret information , Art 13 requires a remedy ‘as effective as can be’…the remedy required by Art 13 must be effective in practice as well as law”[60]Mr Eicke’s supplementary written submissions take issue with the procedural aspects of Article 8. He points out that the consideration of procedural fairness in Al Nashif at [136] was in the context of consideration of the claim for a violation of Article 13 which has not been incorporated into domestic law under the schedule to the HRA.[61]In Al Nashif there was a violation of Article 8 because the proposed expulsion of a Muslim preacher on the grounds of radical preaching was not in accordance with the law as required. It was therefore incapable of justification and no further consideration needed to be given to the procedural failures in that case to establish the violation of Article 8 as an interference that is not in accordance with the law is incapable of justification without more. It was for this reason that the failure of Bulgarian law to provide the applicant with a remedy was considered in the context of Article 13 that imposes a duty on contracting states to provide effective remedies for arguable violations of Convention rights.[62]Further the fact that Article 13 is not cited in the schedule to the HRA does not mean that the Court’s jurisprudence is irrelevant as to the kind of effective remedy required to properly examine whether there has been a violation of Articles that are part of the schedule. Article 13 only applies where another Convention article is engaged. I have concluded that the decision falls within the ambit of Article 8 (1) that is an article found in the schedule to the HRA. Unless the interference is justified there is potentially a violation of Article 8 The HRA requires all public authorities to respect human rights set out in the Schedule where primary legislation does not prevent them from doing so (s.6). What is required as a matter of procedural fairness to ensure that a Convention right is not violated is set out generally in the case law of the Court to which the domestic court must have regard (s.2). It is the fact that Article 8 is engaged that requires the effective remedy irrespective of whether Article 13 is in the Schedule to the HRA or not. The provisions of ss.7 and 8 of the HRA itself were drafted to provide the effective remedy that the UK remains obliged to provide by way of binding international obligation. The exclusion of Article 13 from the Schedule does not make the case law on Article 13 irrelevant as to what is required to be done to ensure that is an effective remedy to an arguable breach of Article 8. On the contrary I find it is both illuminating and persuasive in the determination of the present issues.[63]I therefore conclude that there is power in this court to ask the Attorney General to appoint an SAA to assist it in determining the two central questions in this case. The power can be exercised where the court concludes from the evidence filed to date that the issues for determination are likely to be that the court would benefit from the assistance of the SAA in a difficult and sensitive area and that such an appointment is supported by the claimant and is a means on providing greater fairness to the claimant than may otherwise be possible. Where national security is concerned as justification for interference with a human right the test for procedural fairness must be at least “as effective as can be”. The assistance of an SAA is likely to be more effective to the court and the claimants than proceeding without one.[64]The analogy with a PII application under CPR 31 is not exact. However these applications for judicial review do raise the first question, namely whether greater disclosure could be made without damaging a vital public interest. If the answer is yes, the claimants are likely to succeed in setting aside the present decisions refusing their applications, because if greater disclosure is made to them they may be able to make more informed representations than they have previously been able to do. If the answer is no, the applications are likely to fail because the proceedings have been as fair as can be without damaging a vital public interest.

The Individual cases

[65]I finally come to consider the individual cases and what directions it is now possible to give. I am conscious that there are differences between them but the court has not been invited to distinguish them on the facts by either side. It will fall to a future court to decide what the precise requirements of fairness are in the particular case where there is an apparent clash between the interests of the claimant and the interests of the broader community represented by the defendant.[66]I can see no benefit in the range of problems presented by the group of cases now before the court being increased by further cases raising no discrete point until the outcome of the present cases are known. If there are further similar cases lodged I would invite the Administrative Court office to suspend further consideration of them until the outcome of these cases or further judicial order is made. If these ten present cases are to proceed as a group I would invite the claimants to consider how they can be most efficiently presented without duplication of issues, effort and advocates. I now reach the following broad conclusions.[67]First, in the cases numbered 5, 6, 7, and 8 I conclude that permission to move for judicial review should be granted because there is an arguable case that the reasons given are so general as to not enable effective representations to be made in response. Individuals who are said to be undesirable associates are not named, the rough time and place where these associations are said to have occurred are not provided, and I consider at this stage of the proceedings that there is a reasonable possibility that on further consideration of the closed material further disclosure of some information may be forthcoming. There have been prosecutions or other state action taken to disrupt a number of potentially relevant organisations and individuals within the public domain and it may by that means be possible to give at least a gist more informative than the present reasons. Case 10 was an application not included in the consolidated bundles prepared by the defendants. It was a later application for permission. Uniquely, in this case it has been decided that no reasons at all can be given for the decision. In principle, therefore, it seems to me that permission ought to be given and the case joined with these others because clearly no relevant representations can be made at all to disabuse the decision maker where no reasons are indicated.[68]Second, in all the above cases and also in cases 1, 2 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.[69]Third, I give no such directions in cases 3 and 9 as the information already provided is specific about the individual and/or place relied on adverse to each claimant. In my judgment this is a gist of a specific allegation that is capable of supporting a conclusion as to absence of good character. It gives the claimant sufficient information to be able to make sensible representations. In those cases, it will be for the trial judge considering the defendant’s claim to PII to decide whether there is something else about the case that would require the appointment of an SAA.[70]Fourth, if an SAA is to be appointed the functions performed will be different from those performed in SIAC. In my judgment the critical issue in this case will be disclosure rather than a defence on the merits against deportation or control order action. In those circumstances I do not see that there is necessarily a need for each claimant to have an SAA at the disclosure investigation and as at present advised there appears to be little risk of conflict of interest in representing more than one claimant. The Attorney General may be entitled to conclude after due consideration whether one or two SAs could act for the group of claimants and thus reduce the burden on resources in these cases. I envisage a short period of familiarisation with anything the claimant wants to impart to the SAA that may be relevant to disclosure and then disclosure to the SAA of the closed material relating to the PII claim for study, investigation and where appropriate submissions.[71]Fifth, the defendant should issue her public interest immunity certificate in open and closed form as soon as practicable. If open grounds are given, the claimants should be able to respond to these and make submissions.[72]In all the circumstances, I would invite the parties and the Attorney General to consider the contents of this judgment before any formal directions are issued by the court. I hope that the parties will be able to agree on a timetable and other directions for progressing these cases on receipt of this judgment that has been reserved for some weeks now. If they are not, the court will need an agreed list of issues for determination at a further hearing before formal orders are drawn up.

Cited in 5 later judgments