Secretary of State for the Home Department v AHK & Ors

These appeals raise a narrow procedural question as to how the court should approach applications for judicial review of refusals by the Secretary of State for the Home Department (‘the Secretary of State’) of applications for British nationality (or citizenship) on the ground that the applicant has not demonstrated good character in circumstances in which the Secretary of State is not willing to disclose relevant material to the applicants on public interest grounds. The question is in what (if any) circumstances the judge should consider the documents before deciding whether or not to invite the Attorney General to appoint a special advocate to assist the court.

The appeal is from an order made on 31 October 2008 in which Blake J (‘the judge’) invited the Attorney General to appoint special advocates to represent nine claimants in judicial review proceedings. He also invited the Attorney General to consider whether one or two special advocates might represent the interests of all nine claimants rather than each claimant having a special advocate of his own. The nine claimants were AHK, BM, GA, ZG, AS, MH, IG, FT and NT. We note in passing that the Attorney General has indicated a willingness to appoint special advocates as requested by the judge. The judge granted the Secretary of State permission to appeal in all nine cases but stayed the appeals in the cases of BM, IG and ZG until the determination of the other appeals. The Secretary of State’s appeal is therefore limited to the cases of AHK, GA, AS, MH, FT and NT. In the same order the judge declined to invite the Attorney General to appoint special advocates in the cases of AM and FM. He granted AM and FM permission to appeal but stayed AM’s appeal pending the outcome of FM’s appeal. The judge gave further directions, although he stayed them pending the decisions in these appeals. All the claimants now have permission to apply for judicial review. In some cases permission had been granted before the matter came before the judge, whereas in the remaining cases the judge himself granted permission.

All the claimants came to this country as refugees and have indefinite leave to remain as refugees. They have all been refused British citizenship on the sole ground that the Secretary of State is not satisfied that they are of “good character” as required by section 6 and Schedule 1 of the British Nationality Act 1981 (‘the BNA’). Attached to this judgment as Annex A is a schedule which summarises both the stated reasons for that refusal and the immigration status of the claimant in each case, except FM.

The position of FM is this. The decision letter refusing citizenship was dated 12 July 2006. The ground of refusal given was that the Secretary of State was not satisfied that FM was of good character because he had preached extreme Muslim views. In a letter dated 5 October 2006 upholding that decision the Secretary of State said that she was not prepared to elaborate further. However, there followed some correspondence between the parties, which included a letter of 28 February 2007 which asserted that FM had “openly preached anti-western views and voiced sympathy with Usama Bin Laden at the Hatherley Street Mosque in Liverpool”. The acknowledgment of service was dated 9 July 2007. It included reference to a letter dated 20 March 2007 from FM to his solicitor in which he said that he had never voiced any kind of sympathy with Usama Bin Laden and indeed that he had never mentioned Usama Bin Laden in any of his sermons or anything else whilst being in Hatherley Street Mosque. Lloyd Jones J refused permission to apply for judicial review on paper on 30 August 2007 but it was granted by Sullivan J after an oral hearing on 26 February 2008.

Since December 2004, the Secretary of State, through the UK Border Agency (‘the UKBA’), has refused 138 applications for naturalisation on the basis of what Mr Philip Larkin of the UKBA calls restricted grounds. Of those, 35 were refused in 2008 and seven before 12 February in 2009. The Secretary of State is currently defending 22 applications for judicial review of such decisions. Similar procedural problems arise in each of these cases and all the cases which are not the subject of these appeals have been stayed pending our decision. Of the 138 cases since December 2004, 125 applications were refused on grounds which involved national security considerations, either wholly or in part. The remainder involved other public interest considerations, such as the protection of ongoing police investigations. In order to put the problem we are considering in context it is perhaps important to note that about 100,000 applications are successful every year.

In all the cases with which the judge was concerned the Secretary of State refused either to give full (or any) reasons or to disclose relevant material, including material she took into account in reaching her decision, or both. Because of the similarity of the issues likely to be raised in them, Collins J ordered that there be a directions hearing so as to determine how any application by the claimants for reasons or more reasons or by the Secretary of State for an order permitting her not to disclose such material should be approached. All parties welcomed Collins J’s order.

Sections 6(1) and 6(2) provide:

“(1)

If, on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.

(2)

If, on an application for naturalisation as a British citizen made by a person of full age and capacity who on the date of the application is married to a British citizen [or is the civil partner of a British citizen], the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.

Paragraph 3 of Schedule 1 provides:

“Subject to paragraph 4, the requirements for naturalisation as a British citizen under section 6(2) are, in the case of any person who applies for it –

(a)

that he was in the United Kingdom at the beginning of the period of three years ending with the date of the application, and that the number of days on which he was absent from the United Kingdom in that period does not exceed 270; and

(b)

that the number of days on which he was absent from the United Kingdom in the period of twelve months so ending does not exceed 90; and

(c)

that on the date of the application he was not subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom; and

(d)

that he was not at any time in the period of three years ending with the date of the application in the United Kingdom in breach of the immigration laws; and

(e)

the requirements specified in paragraph 1(1)(b), (c) and (ca).”

The requirements of paragraph 1(1)(b), (c) and (ca) are as follows:

“(b)

that he is of good character; and

(c)

that he has a sufficient knowledge of the English, Welsh or Scottish Gaelic language; and

(ca) that he has sufficient knowledge about life in the United Kingdom…”

Unlike the position as to the other express requirements of paragraph 1(1), the Secretary of State has no express power to dispense with the requirement of good character: see paragraph 2 of Schedule 1.

Until its repeal by the Nationality, Immigration and Asylum Act 2002, with effect from 7 November 2002, section 44(2) of the BNA provided:

“The Secretary of State … shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion; and the decision of the Secretary of State on any such application shall not be subject to appeal to, or review in, any court.”

The repeal of that section was subsequent to the decision of this court in R v SSHD ex parte Fayed (No 1) [1998] 1 WLR 763.

There is no statutory definition of ‘good character’ in the BNA and no relevant statutory guidance. The Secretary of State has however provided guidance to her officers as to the application of the test: see Annex D to Chapter 18 of the Nationality Instructions. That guidance includes factors which are said to lead the Secretary of State “normally [to] accept that the applicant is of good character, namely where :

•

enquiries of other government departments and agencies are clear;

•

there are no unspent convictions;

•

there is no information on file to cast serious doubts on the applicant’s character; and

•

… there is written confirmation from HM Revenue and Customs that business affairs are in order.”

The judge correctly held at [41] that no-one has the right to British citizenship, only to have his claim considered fairly under the scheme. It is, however, common ground that the decision to refuse citizenship can be challenged by judicial review. The legal burden of establishing good character is on the applicant, as is the burden of showing that the decision of the Secretary of State is wrong in law. However, there may be circumstances in which the evidential burden shifts to the Secretary of State. All will depend upon the circumstances. It is important to have in mind that there is no right of appeal against a refusal by the Secretary of State. In order to succeed the claimant must show that the decision was legally flawed.

In her detailed grounds of defence, which were before the judge, the Secretary of State proposed that, in any case where she objects to the disclosure of further information on the ground that it would be contrary to the public interest, and the court is considering an application for permission to apply for judicial review:

The detailed grounds of defence set out further procedural steps proposed by the Secretary of State as follows:

The judge did not address those suggested principles in quite that way. That was no doubt in part because of the way the applications proceeded before him. While, as appears in Annex A and in [4] above, the Secretary of State had provided some explanation of her position, except in the case of AS, where she gave no reasons, she did not provide a PII certificate as suggested in [11i)] above. As already indicated and as shown in Annex A, permission had been granted in the cases of MH, FT and NT and refused in the case of GA and the application for permission had been adjourned in the case of AHK and not yet considered in AS. The judge himself gave permission in the cases in which the application for permission had been refused or adjourned.

The skeleton argument for the Secretary of State, which was prepared for this appeal by Miss Lisa Giovannetti’s predecessor, identified these features as important:

Although the skeleton arguments range far and wide, as we read them the essential point which divided the parties in them was the insistence of the Secretary of State that the court should not appoint a special advocate until it had first considered the closed material and decided that there was no alternative. The argument for the claimants was that the claimants are in principle entitled to know the case and evidence against them and that there should be few, if any, exceptions. The primary case of some at least of the claimants was that the only exception is where the public interest requires that material (or reasons) cannot be made available to the claimants and where in those circumstances a special advocate is appointed on behalf of the claimant in order to see whether further information should be obtained, whether further reasons or a gist of the Secretary of State’s case could be given to the claimant and whether any relevant witness should be asked to attend for cross-examination. In the alternative it was said on behalf of the claimants that a special advocate should almost always be appointed and that the cases in which the judge should consider the documents without the assistance of a special advocate should be very few and far between.

At the hearing, the position of the Secretary of State to some extent shifted. Miss Giovanetti formulated the test somewhat differently. She submitted that a special advocate should only be appointed to assist the judge when it was necessary to do so. When asked whether a judge should hold that such assistance was necessary when it was desirable, she was inclined to accept that that was so. However, she adhered to the position that it will ordinarily be appropriate for the judge to consider the documents for himself or herself without the assistance of a special advocate.

There is a fundamental general principle that a party to litigation is entitled to be given full reasons for a decision and to see all the material which the decision maker has available, including, in the present context, all the material which the decision-maker relied upon in making her decision and all the material which she now relies upon against the claimant in supporting her decision. It is also a fundamental principle that a judge should not look at material that the parties before him have not seen. These general principles are common ground and are often expressed in ringing tones: see eg R (Roberts) v Parole Board [2005] UKHL 45, [2005] 2 AC 738, per Lord Bingham at [15] to [17] and the cases there cited.

The principles apply to all proceedings, including claims for judicial review. CPR 54.14(1) provides that anyone wishing to contest such a claim must file and serve on the claimant detailed grounds for contesting the claim or for supporting the decision impugned on additional grounds together with written evidence in support. In R v Lancashire CC ex p Huddleston [1986] 2 All ER 941 Sir John Donaldson MR described that obligation at page 945 as a “duty to make full and fair disclosure”. In Fayed (No 1) Lord Woolf MR said that the obligation of the respondent public body in its evidence is to make frank disclosure to the court of the decision-making process.

It is however also common ground that there are exceptions to that principle. There is a general exception in the case of disclosure in CPR 31.19, which provides as follows:

“(1)

A person may apply, without notice, for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest.

(2)

Unless the court orders otherwise, an order of the court under paragraph (1) -

(a)

must not be served on any other person; and

(b)

must not be open to inspection by any person.

(3)

A person who wishes to claim that he has a right or a duty to withhold inspection of a document, or part of a document, must state in writing -

(a)that he has such a right or duty; and

(b)

the grounds on which he claims that right or duty.

(4)

The statement referred to in paragraph (3) must be made -

(a)

in the list in which the document is disclosed; or

(b)

if there is no list, to the person wishing to inspect the document.

(5)

A party may apply to the court to decide whether a claim made under paragraph (3) should be upheld.

(6)

For the purpose of deciding an application under paragraph (1) (application to withhold disclosure) or paragraph (3) (claim to withhold inspection) the court may -

(a)

require the person seeking to withhold disclosure or inspection of a document to produce that document to the court; and

(b)

invite any person, whether or not a party, to make representations.

(7)

An application under paragraph (1) or paragraph (5) must be supported by evidence.

(8)

This Part does not affect any rule of law which permits or requires a document to be withheld from disclosure or inspection on the ground that its disclosure or inspection would damage the public interest.”

There is no suggestion that in such a case it is necessary or appropriate to instruct a special advocate on an application under that rule. It follows that the CPR contemplate the court looking at documents produced by only one side, although it is fair to say that this is only in the context of disclosure and not in the context of a document upon which reliance is placed. It may also be added that a judge who looks at particular documents for interlocutory purposes may think it right not to take part in a determination of the merits. All no doubt depends upon the circumstances. The cases to which we refer below show that the courts have contemplated a number of circumstances in which the correct course is to ask the judge to look at documents, rather than to ask for the appointment of one or more special advocates.

There are now a number of statutory provisions which expressly provide for the appointment of a special advocate in different contexts and there are also a number of other circumstances in which it has been held that special advocates can be appointed in the interests of justice without the need for statutory authority: see eg Malik at [96] and [97] quoted below. In such cases, the correct approach is to invite the court to ask the Attorney General to do so. The cases do not explore the circumstances in which the Attorney General might decline to do so or in which such a decision might be challenged and on what basis. As we have already indicated, that problem does not arise here because the Attorney General has indicated a willingness to accept the judge’s invitation. We would only comment in passing that, except perhaps in exceptional circumstances, we would expect the Attorney General to comply with the court’s request, just as she ordinarily complies with a court’s request to appoint an amicus curiae (or friend of the court).

A recent summary of the position is set out in the judgment of Dyson LJ, giving the judgment of the Divisional Court, which also comprised Pitchford and Ouseley JJ, in Malik at [94] to [102] as follows:

“94.

Mr Eadie [counsel for the claimant] submits that it is clear from the judgment that material, apparently decisive of the outcome of the application for the production order, was not seen by the claimant or his legal representatives. We have read the closed documentation carefully and can confirm that it does contain material which had an important bearing on the outcome of the application before the judge and that the judge was right so to regard it. Mr Eadie submits that the common law requirements of natural justice were not satisfied by the procedure that was adopted in this case. It is fundamental to a judicial inquiry that a person must have the right to see all the information that is put before the judge, so that he may comment on it, challenge it and, if necessary, counter it by contrary evidence. In addition, Mr Eadie submits that the claimant’s article 6 civil rights were engaged by the Chief Constable’s application and the procedure adopted did not afford the claimant a substantial measure of procedural justice as required by the Convention. At the very least, a special advocate was required to view the closed material and attend the closed hearing in order to cross-examine Detective Inspector Richardson and make submissions to the judge.

95.

Mr Eadie further submits that the need for a special advocate was heightened on the facts of this case by the seriousness of the consequences for the claimant if a production order was made. If he complies with the order, he runs all the risks to which we have earlier referred. If he does not comply, then he commits a contempt of court.

96.

The use of special advocates was first sanctioned by Parliament in the context of national security deportations by the creation of the Special Immigration Appeals Commission (“SIAC”) to hear immigration appeals in matters with a national security element: see section 2 of the Special Immigration Appeals Commission Act 1997. The functions of a special advocate in that context are set out in rule 35 of the Special Immigration Appeals Commission Rules SI 2003 No 1034 (as amended). A special advocate in SIAC proceedings has, broadly speaking, two principal tasks: (i) to test the Secretary of State’s objections to disclosure of material to the appellant and see whether more can be moved from the closed to the open part of the proceedings; and (ii) to represent the interests of the appellant in any closed proceedings. Once a special advocate has received closed material, his ability to communicate with the appellant or his representatives is severely curtailed (rule 36). The SIAC model has been adopted in various other legislative contexts. It is not necessary to describe these. They do not include applications for production orders under the 2000 Act.

97.

There have been cases where, without an applicable statutory scheme, the court has asked the Attorney-General for a special advocate. Examples are Secretary of State for the Home Department v Rehman in the Court of Appeal at [2003] UKHL 47 at [31] and [32]; R v Shayler [2002] UKHL 11, [2003] 1 AC 247 at [34]; R v H [2004] UKHL 3, [2004] 2 AC 134 at [22] (in the context of an ordinary criminal trial); and R (Roberts) v Parole Board [2005] UKHL 45, [2005] 2 AC 738.

98.

In R v H at [22], Lord Bingham, giving the opinion of the Appellate Committee of the House of Lords said, in the context of a discussion about criminal trials, that the court should not be deterred from requesting the appointment of a special advocate to represent a defendant in public interest immunity matters, where the interests of justice are shown to require it. He said: “But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort”. In R (Murungaru) v Secretary of State for the Home Department [2006] EWHC 3726 (Admin), Mitting J drew attention to the fact that Lord Bingham’s comments were made in the context of criminal procedure. That is true, but we doubt whether the court should be more willing to request the appointment of a special advocate in other contexts. In R (Roberts) v Parole Board, (not in the context of a criminal trial), it is to be noted that Lord Carswell said at [144] that the special advocate procedure should be used only in “rare and exceptional cases” and as a course of last and never first resort. And Lord Woolf CJ said at [42] that what Lord Bingham said in R v H “could be even more apposite in the case of the [parole] board.

99.

We accept, therefore, that there is power in the court to request the appointment of a special advocate of its own motion. But that power should be exercised only in an exceptional case and as a last resort.

100.

In deciding whether to request the Attorney-General to appoint a special advocate, the court should have regard to the seriousness of the issue that the court has to determine. We accept that the consequences for the claimant of an order that requires him to disclose his sources (other than Hassan Butt) are very serious for him. But as against that, the entitlement to disclosure of relevant evidence is not an absolute right. One important competing interest which may justify non-disclosure is national security: see Botmeh and Alami v UK (Application No 15187/03 (unreported)) at [37] cited by Baroness Hale of Richmond in Secretary of State for the Home Department v MB [2007] 3 WLR 681 at [62].

101.

As Mr Nicol points out, even in a procedure which is entirely ex parte, the court may consider that the absent party is afforded a sufficient measure of procedural protection by the obligation on the party who is present to lay before the court any material that undermines or qualifies his case or which would assist the absent party. Further, the court itself can be expected to perform a role of testing and probing the case which is presented. All these features may satisfy the court that the procedure is fair and complies with article 6, even without a special advocate. We would wish to place particular emphasis on the duty of the court to test and probe the material that is laid before it in the absence of the person who is affected. Judges who conduct criminal trials routinely perform this role when they hold public interest immunity hearings.

102.

A further relevant question is the extent to which a special advocate is likely to be able to further the absent party’s case before the court. It may not always be possible for the court to form a view as to how far, realistically, a special advocate is likely to be able to advance the party’s case. But sometimes, it is possible. If the court concludes that the special advocate is unlikely to be able to make a significant contribution to the party’s case, that is a relevant factor for the court to weigh in the balance. It should always, however, be borne in mind that it is exceptional to appoint a special advocate outside an applicable statutory scheme.”

As counsel for the claimants have pointed out, in our judgment correctly, Malik was a very different case from this. The court took the view that a special advocate was likely to be of very little assistance. In these circumstances there is no advantage in discussing the facts of that case in any detail. We would however note that Dyson LJ said at [105] that it was true that a special advocate could “test and probe the evidence and assessments of the officer, but so too could the judge”. It was a case in which counsel for the claimant had not asked for a special advocate and the court held, obiter, that it was far from persuaded that the judge would have been in error in not asking for a special advocate of his own motion.

In Murungaru v SSHD [2008] EWCA Civ 1015 this court quashed a request for a special advocate. In the course of his judgment, with which Jacob LJ agreed, Sedley LJ made some general, but we think for the most part obiter, observations on the topic of special advocates: see [13] to [24], where he referred to Chahal v UK (1996) 23 EHRR 413, Charkaoui v Minister of Citizenship and Immigration [2007] 1 SCR 350, Scott v Scott [1913] AC 417 and Roberts. For example he noted at [15] that the Grand Chamber in Chahal held, at [131] to [132], that in order to satisfy the article 5(4) due process guarantee in national security cases

“there are techniques which can be employed which both accommodate legitimate security concerns … and yet accord the individual a substantial measure of procedural justice”.

He added that the United Kingdom's then rudimentary procedures were held to fall short of this standard. We accept the submission made on behalf of the claimants that by ‘techniques’ the court had particularly in mind the use of special advocates.

Sedley LJ said at [20]:

“Although they do not arise directly in the present case, there are some larger principles which need to be borne in mind by courts. The help of a special advocate is to be sought if, but only if, the interests of justice require it: it is a last resort if all other means of doing justice fail (see Lord Bingham in R v H [2004] 2 AC 134 §22). Even disclosure of evidence is not a universal right (see Lady Hale in Home Secretary v MB [2008] AC 440 §58ff). The availability of a special advocate can never be a reason for reducing the procedural protections which the law otherwise guarantees (see Lord Woolf in Roberts v Parole Board §59). These, whether under art. 6 or at common law, may vary with the gravity of the potential consequences of the proceedings (see Lord Bingham in Home Secretary v MB §24).”

Sedley LJ added at [21] that that summary reflected the views of the Divisional Court in Malik from which he quoted [101] and [102].

Sedley LJ also added at [22] that the question in Malik was whether the Crown Court judge had erred in not asking for a special advocate, the Divisional Court holding that he did not, whereas in Murungaru Mitting J’s principal object in invoking the special advocate procedure was to have the fairest possible representation of the claimant's interests when the court came to examine the public interest justification advanced by the state under Article 1 Protocol 1 of European Convention of Human Rights (‘the ECHR’). It was a case in which there was a PII certificate, of which Sedley LJ said:

“Because of the certificate the court will have to evaluate the material for itself. Mitting J, a judge with very considerable experience in this problematical field, took the view that a special advocate would be of value to the court in this exercise – not because a special advocate can represent the claimant (they cannot and do not purport to) but because he or she can probe the material independently and relieve the judge of what might otherwise resemble a partisan intervention.”

Sedley LJ added:

“23.

The last of these considerations may, however, be negotiable. In Malik the divisional court said:

“It is true that a special advocate could test and probe the assessments of the officer, but so too could the judge”

While I recognise the factuality of this proposition, I would temper it with a need to gauge the risk that probing the material may draw the judge from the bench into the arena.

24.

One notes, too, that the decision of Mitting J in the present case was before the divisional court in Malik. Noting that Mitting J had drawn attention to the fact that Lord Bingham's comments in R v H had been made in the context of criminal procedure, the court commented:

“That is true, but we doubt whether the court should be more willing to request the appointment of a special advocate in other contexts.”

The facts of Murungaru were very different from both Malik and the instant cases. It was, however, an example of a case in which the court concluded that it was not necessary for a special advocate to be appointed and that the court should look at the documents. On the other hand, it is fair to observe that the court said that, if (as the judge had thought) questions of proportionality had arisen, it would have upheld his decision. All thus depends upon the circumstances of the particular case.

In the later case of A,K,M,Q and G v HM Treasury [2008] EWCA Civ 1187, this court, comprising Sir Anthony Clarke MR and Wilson and Sedley LJJ, held that there was no reason in principle why a special advocate could not be appointed in a particular case without statutory authority but that whether it should do so or not depended upon all the circumstances of the case: see at [78]. There was no argument about the relevant test and the court simply referred to Malik and said that the court should only ask the Attorney General to appoint a special advocate in an exceptional case and as a last resort. Sedley LJ wrote a judgment dissenting in part but not, we think, on this question of principle.

The claimants submitted that a special advocate should be appointed as a matter of course in cases of this kind because it is not appropriate for the judge to consider material for himself without anyone representing the interests of the claimant who is both permitted to see the documents and told the basis of the case against him. They said that there would otherwise be a risk that the judge would appear to enter the arena in favour of the Secretary of State and justice would not be seen to be done.

None of the cases or the statements in them go so far as to hold that the judge must never look at the documents but must always appoint a special advocate. On the contrary they proceed on the basis that it is only in an exceptional case and as a last resort that a special advocate should be appointed. In the course of the argument in this case we were in effect asked to revisit that test. We are of course bound by decisions of this court but, whatever the test, the cases do not support the proposition that a special advocate must always be appointed. Moreover, it is important to note that the judge did not go so far in this case. On the contrary, having stressed the value of special advocates, as he was well qualified to do, since he has considerable experience acting as a special advocate in different contexts, the judge expressed his conclusions thus at [68]:

“Second, in those cases and in cases 1 and 4, I consider for the reasons already given in this judgment that the court is likely to be assisted by the appointment of an SAA to examine, negotiate and if appropriate make submissions about whether further data can be disclosed without damage to the public interest. I am conscious that I have not seen the closed material and that there is much to commend the defendant’s suggestion that whatever criteria the court adopts to decide when an SAA is needed, the court should examine the closed material for itself before deciding on whether an SAA is needed. As against that the directions hearing were designed to clarify whether an SAA should be appointed or not and further delay in reaching a conclusion on this issue should be avoided if possible. In the light of my conclusions that Convention rights are engaged, that the procedure should be as fair as possible and that there is a reasonable possibility on the present state of information that use of an SAA could result in disclosure of further data I consider it appropriate that I should make my request now to the Attorney General in this group of cases.”

The judge thus did not accept the submission that a judge should never look at the closed material first before deciding whether to appoint a special advocate. On the contrary, he said that there was much to be said for doing so in these cases but, among other things, that to do so would cause delay.

In these circumstances we do not accept the submission that a special advocate should always be appointed and that the court should never look at the documents first. On the other hand, the essential duty of the court is to ensure that it acts fairly and, in particular, that the hearing is fair to the parties, including of course the claimants. In our judgment, that is so whether fairness is considered at common law or in accordance with the principles set out in the ECHR. There was much debate in the course of the argument as to whether article 6 of the ECHR applied, either directly, or as a result of the engagement of articles 8 or 11. See now the recent decision of the House of Lords in RB (Algeria) v SSHD [2009] UKHL 10, especially at [86], [90] to [91] and [168] to [179] where it was held that article 6 did not apply to the decision to make a deportation order. However, we do not think that it is necessary or appropriate for us to analyse the possible circumstances in which the ECHR might apply. That will depend upon the facts of particular cases. Whatever the position with regard to the decision of the Secretary of State, each claimant is entitled to a fair hearing of his application for judicial review. In this connection, the same principles of fairness should apply in every case, whether the ECHR applies or not. There may however be cases in which issues of proportionality arise, where it may be appropriate to appoint a special advocate in circumstances in which it would not otherwise be appropriate to do so, as was recognised at first instance in the very different factual context in Murungaru.

We accept the submission that the effects of a refusal of British nationality may be serious for the applicant. This has been accepted since Fayed (No 1), where Phillips LJ said at page 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 and conduct that are disreputable. I consider that these factors give the applicants stronger grounds for urging a duty of disclosure … The refusal of the benefits of naturalisation and the adverse inferences that will be drawn from such refusal are so serious that, as a matter of natural justice, an applicant should not be visited with them without a fair chance to meet the adverse case that threatens that result.”

There are undoubted benefits in British nationality. For example it brings with it the benefits of being a citizen of a member state of the European Union and entitles the citizen to vote and to stand for and, if elected, become a Member of Parliament. In her written submissions the Secretary of State says that she keeps her communications with the applicant confidential so that it is up to him or her to decide whether to make the refusal of citizenship public. We naturally accept that the Secretary of State respects that confidentiality but we do not think that it is realistic that the result of the application will not frequently become known.

The issues in particular cases may be different. In some, perhaps many, cases the issue may simply be whether the Secretary of State acted rationally, in which case, at any rate where she had available to her only little material, there may be no difficulty in resolving the issues arising in a claim for judicial review fairly. In other cases, the ECHR may apply and substantive issues of proportionality may have to be resolved. Different considerations may arise in such cases. These are factors which must be taken into account when the judge decides whether to request the appointment of a special advocate. It appears to us that the judge’s conclusion that the ECHR is engaged was not made on a sufficiently case specific basis.

However, in order for us to determine these appeals it is sufficient for present purposes for us consider the correct approach in cases of this kind generally. That was the purpose of Collins J’s order. We therefore return to the test. We have concluded that it is open to us to give at least some consideration to the test in circumstances in which this appears to us to be the first case in which the precise nature of the test has been exposed to detailed examination. As we indicated above, the test suggested by Miss Giovannetti was that a special advocate should only be appointed if it is necessary to do so. We do not think that such an approach is markedly different from that suggested in the cases. In any event, it seems to us that it will be necessary to appoint a special advocate where it would be just to do so. Given the very few cases in which these problems arise, viz some 138 in four years in circumstances in which about 100,000 applications for citizenship succeed each year, these are exceptional cases. In our view the test is best stated as being that a special advocate should be appointed where it is just to do so, having regard to the requirement that the proceedings must be fair to the claimant and to the Secretary of State.

In the course (and in the light) of the argument, we made some suggestions as to directions which might be appropriate in a case of this kind. Submissions were then made on all sides as to how we might improve the directions we had tentatively proposed. In the light of those submissions, we have reached the conclusion that the court considering what directions to make should have regard to the principles set out below. They assume that permission to apply for judicial review has been granted. Although similar principles may be applicable at the permission stage, we do not set them out separately here in order to avoid making this judgment too cumbersome.

We now first set out the principles which it appears to us should be adopted and then explain the reasons for some of them in the light of the submissions which were made to us.

We add these points by way of further explanation of some of the principles in the light of the detailed submissions we received.

If these principles are adopted, the decision of the judge will involve the exercise of a discretion, which we would not expect to be reviewed in this court, except on the very limited grounds appropriate in such a case.

After writing the above we became aware of the decision of the Grand Chamber of the European Court of Human Rights (‘the ECtHR’) in the case of A v United Kingdom, Application 3455/05, which was handed down on 19 February 2009. Because it appeared to be relevant or potentially relevant to the issues in this appeal, we invited the parties to make submissions relating to it and they have done so. Each contends that it strengthens the submissions they made at the hearing of the appeal. Thus some claimants say that it leads to the conclusion that a special advocate should be appointed in every case, whereas the Secretary of State says that it underlines the general approach of the ECtHR that all depends upon the circumstances.

The case of A v United Kingdom arose out of the detention of A and ten other non-UK nationals who had been detained under the Anti-Terrorism, Crime and Security Act 2001 (‘ATCSA’). The House of Lords held at [2004] UKHL 56, [2005] 2 AC 68, that the detention was disproportionate and discriminatory. It granted an order quashing an order derogating from the ECHR and made a declaration that section 23 of ATCSA was incompatible with articles 5(1) and 14. The ECtHR reached the same conclusion with regard to article 5(1): see [190]. It decided that it was not necessary for it to consider article 14. For present purposes we are concerned only with the conclusions and reasoning of the court on a different question, namely the applicants’ case that the United Kingdom was in breach of article 5(4) of the ECHR by reason of the lack of disclosure of material except to special advocates with whom the detainee was not permitted to consult: see [195]. The case advanced was that article 5(4) imported the fair trial guarantees of article 6 commensurate with the gravity of the issue at stake. It was argued that, while in certain circumstances it might be permissible for a court to sanction non-disclosure of relevant evidence to an individual on grounds of national security, it could never be permissible for a court assessing the lawfulness of detention to rely on such material where it bore decisively on the case the detained person had to meet and where it had not been disclosed, even in gist or summary form, sufficiently to enable the individual to know the case against him and to respond. In all the applicants' appeals, except that of the tenth applicant, SIAC relied on closed material and recognised that the applicants were thereby put at a disadvantage.

It can thus be seen that the question for decision was different from that in the instant appeals because it concerned an alleged violation of article 5(4) in the context of cases against individuals who were detained in circumstances where English law provided them with the assistance of special advocates but where it did not always provide even a gist of the case against them. The court was not therefore considering a case like these, where (as explained above), although refusal to grant British citizenship is a serious matter, the applicant is not threatened with a denial of or interference with his or her liberty. On the other hand in at least one of these cases, namely AS, the Secretary of State has refused to provide even a gist of the case against the claimant. In our judgment, although the court was not considering a case like these, some of the principles it identified are relevant to these appeals.

In so far as they are relevant for present purposes it is sufficient to summarise the principles adopted in A as follows:

Having identified the relevant principles in the kind of case before it, namely that of detention, the ECtHR then considered the case of each individual applicant. Not having seen the closed material, it could not of course say whether a sufficient gist of the whole case against each person had been given to him. However, as we understand it, it did not ask to see the closed material but focused only on the open material and the conclusions of SIAC. Of the nine cases in which complaints under article 5(4) had been held to be admissible, it considered that in five cases the allegations were sufficiently detailed to permit the applicants to challenge them effectively, so that there had been no breach of article 5(4): see [222]. By contrast in the case of two of the applicants, although there was open evidence of large sums of money moving through his bank account and of involvement in raising money through fraud respectively, there was no evidence which allegedly provided a link with terrorism: see [223]. Also, in the case of the remaining two applicants, SIAC had indicated that the evidence against them was largely to be found in the closed material which they were not in a position effectively to challenge: see [224]. An infringement of article 5(4) was thus found in the case of four applicants.

The above analysis shows that the ECtHR considers each class of case separately. The issues in this class of a case are a far cry from the issues which arise in the criminal cases discussed by the ECtHR in A. Moreover, without in any way minimising the effect of being refused British citizenship, the consequences of a deprivation of (or even interference with) liberty are plainly very much more serious. In these circumstances we do not think that the approach of the ECtHR in criminal cases or in cases of deprivation or interference with liberty can or should be applied directly to this class of case. That is not to say that, as explained earlier, each individual is not entitled to a fair hearing of his application for judicial review. It is indeed to precisely that end that we have tried to devise a fair procedure in this type of case.

We are not persuaded that the decision in A v United Kingdom leads to a different approach. Thus, depending upon the circumstances, it will be appropriate for a judge either to look at the documents and decide whether or not to request the appointment of a special advocate or not to look at the documents and to decide to make such a request. In our judgment, if the procedure we have identified is adopted, the judge, who is of course entirely independent of the parties, will be able to make an independent decision in order to enable each case to be dealt with fairly. He or she will neither be nor be seen to be in any way partial because the process we envisage will not involve the Secretary of State making submissions to the judge at that stage.

Those conclusions are subject to this. We recognise that, albeit in a different context, in trying to arrive at a fair balance between the parties, the ECtHR naturally places importance on the individual being told the gist of the case against him, even if he cannot be told it all and cannot be given relevant documents. It does appear to us that the less information given to the individual the more likely it is that the judge will conclude that the individual should have the benefit of the assistance of a special advocate.

In the upshot our essential conclusions are set out at [37], as explained at [38] and to some extent amplified at [46] and [47] above.

Although many of the conclusions we have set out above are consistent with the views expressed by the judge, we have formulated them somewhat differently and the procedure adopted before the judge, through no fault of his own, was not quite the same as we have contemplated. As to the individual cases, the judge noted at [65] that, although there were differences between them, the court had not been invited to distinguish between them by either side. It appears to us that in these circumstances the most appropriate course now is for all the cases to be remitted to the judge (or, if he is not available, another judge) for consideration of each of them in the light of the principles we have set out above. It follows that we allow the appeal of the Secretary of State in the cases in which she is the appellant and we allow the appeal of FM. We stress, however, that we are not expressing any view as to whether a special advocate should or should not be appointed in any of the particular cases, although (without looking at the particular facts) it does seem to us at present that there is likely to be much to be said for such an appointment and the provision of an appropriate gist in the case of AS in which no such gist has yet been provided.

ANNEX A