FMA & Ors v Secretary of State for the Home Department

Mr Buttler’s submission relies on passages in the judgment of Carnwath LJ in R (YH) v Secretary of State for the Home Department [2010] 4 All ER 448. On that occasion the Court of Appeal considered the approach the court should take to decisions by the Home Secretary taken in exercise of the power at section 94 of the Nationality Immigration and Asylum Act 2002, the power to withdraw the right of appeal against a decision on an asylum or human rights claim by certifying the claim to be “clearly unfounded”. The primary issue in that case concerned the court’s role on judicial review of a section 94 certification decision. Carnwath LJ, on review of the authorities, reached the conclusion that when a certification decision was considered by the court on an application for judicial review, the court was entitled to exercise its own judgment on whether the claim was clearly unfounded, albeit that it must decide the issue only by reference to the material that had been available to the Home Secretary (see the judgment at paragraphs 17 – 21). Thus, although the claim was for judicial review, Carnwath LJ’s conclusion was that the court should take an approach that was unorthodox by reference to ordinary principles of judicial review, and stand in the shoes of the Home Secretary.

Having reached that conclusion, Carnwath LJ then continued under the heading “anxious scrutiny”.

“22.

The expression “anxious scrutiny” derives from the speech of Lord Bridge in Bugdaycay v Secretary of State [1987] AC 514, 531, where he said: 

“The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny.”

23.

It has since gained a formulaic significance, extending generally to asylum and article 3 claims (see e.g. MacDonald para 8.6). Thus, in WM (Democratic Republic of Congo) v Secretary of State [2006] EWCA Civ 1495, Buxton LJ explained that where asylum was in issue – 

“… the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution.”

It has now become an accepted part of the canon, but there has been little discussion of its practical significance as a legal test. 

24.

As I suggested in AS(Sri Lanka) (para 39), the expression in itself is uninformative. Read literally, the words are descriptive not of a legal principle but of a state of mind: indeed, one which might be thought an “axiomatic” part of any judicial process, whether or not involving asylum or human rights. However, it has by usage acquired special significance as underlining the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account. I would add, however, echoing Lord Hope, that there is a balance to be struck. Anxious scrutiny may work both ways. The cause of genuine asylum seekers will not be helped by undue credulity towards those advancing stories which are manifestly contrived or riddled with inconsistencies.”

Mr Buttler’s submission is that the present case is one where the court should apply the anxious scrutiny standard, and the consequence of that is that it is for the court to decide for itself which matters are relevant and which are not, rather than apply the ordinary Wednesbury-based approach explained by Cooke J in CREEDNZ Inc v Governor General [1981] 1 NZLR 172, approved by the House of Lords in R v Findlay [1985] AC 318 per Lord Scarman at pages 333F - 334D. Mr Buttler further submits that, having decided for itself which matters were relevant, the court should then ask, in relation to each, whether the Home Secretary had complied with the Tameside obligation of reasonable enquiry.

I do not accept this submission. I do not (and would not want to) disagree with Carnwath LJ’s general observations on the nature of anxious scrutiny. It is, as he explains, a judicial state of mind applied in situations where it is apparent that the decision under challenge affects a vital interest of the claimant and, that being so, the legality of the decision is a matter of particular concern. Rather, Mr Buttler’s submission does not recognise the distinction between that general concern and the context for paragraph 24 of Carnwath LJ’s judgment. In YH, Carnwath LJ had already decided that the correct approach to the Home Secretary’s decision under section 94 of the 2002 Act was that the court should decide “the clearly unfounded” question for itself, subject only to the limitation that the court could only consider material available to the Home Secretary. That was the context for the observation that the Home Secretary’s reasoning should “show” “that every factor which might tell in favour of an applicant has been properly taken into account”. Put another way, Carnwath LJ was not saying anxious scrutiny of itself changes the principles that apply to determine the legality of a decision, he was only making the point that it described a particular approach to the application of such principles in some cases. To the extent that Carnwath LJ re-moulded judicial review principles in that case it was only to the extent necessary to address a challenge to a decision made under section 94 of the 2002 Act.

The present context is materially different. The Home Secretary’s decision in this case, on whether the First Claimant’s presence in the United Kingdom was conducive to the public good, is not a decision a court may second-guess. The proper approach for the court in a case like this cannot be the same as the approach that Carnwath LJ concluded was correct when the challenge was to a decision made under section 94 of the 2002 Act. In this case the court should not decide for itself what matters are relevant; the legality of the Home Secretary’s decision must depend on the principle explained in CREEDNZ Inc, applied in the context of paragraph 9.3.1 of the Immigration Rules and the Home Secretary’s own policy on not conducive grounds for refusal. That is the proper context for application of the Tameside obligation of reasonable enquiry.

The relevant policy is in the 10 November 2021 document “Suitability: non-conducive grounds for refusal or cancellation for entry clearance for permission” (“the policy”). Two submissions are made on the Home Secretary’s application of that policy on this case.

The first submission is that although the policy required the Home Secretary when determining the not conducive to the public good question, to take account of the nature and extent of the risk the First Claimant faced in Afghanistan, the Home Secretary failed to follow her policy by not considering that risk in this case. The Claimants rely on two passages in the policy. In the introduction to the policy the following appears:

“Non-conducive to the public good means that it is undesirable to admit the person to the UK, based on their character, conduct, or associations because they pose a threat to UK society. This applies to conduct both in the UK and overseas.

The test is intentionally broad in nature so that it can be applied proportionately on a case-by-case basis, depending on the nature of the behaviour of the behaviour and the circumstances of the individual. What may be appropriate action in one scenario may not be appropriate in another. All decisions must be reasonable, proportionate and evidence-based.

You must be able to show on a balance of probabilities that a decision to refuse is based on sufficiently reliable information. You must consider each case on its individual merits.”

Particular reliance is placed on the reference to the “circumstances of the individual” and on the requirement that decisions are reasonable and proportionate. The second passage relied on appears under the heading “When is a person’s presence in the UK not conducive to the public good?”. This part of the policy lists matters relevant to the not conducive to the public good decision. At the end of the list the following is stated:

“This list is not exhaustive. In all cases, you must consider what threat the person poses to the UK public. You should balance factors in the individual’s favour against negative factors to reach a reasonable and proportionate decision.”

The Claimants’ submission is that factors in an individual’s favour should include any risk he faces if not granted a visa to enter the United Kingdom.

I do not consider the policy requires the Home Secretary, when deciding the not conducive to the public good issue, to have regard to the risk the First Claimant now faces in Afghanistan were the visa application to be refused. The policy only concerns the application of paragraph 9.3.1 of the Immigration Rules. That paragraph requires the Home Secretary to refuse an application “… where the applicant’s presence in the UK is not conducive to the public good” because of conduct, character, association or other reason, and the parts of the policy the Claimants rely on are to be understood in that context. Paragraph 9.3.1 does not require the Home Secretary to balance harm to the public good against other matters such as harm the applicant might face if not permitted to enter the United Kingdom. Rather, the only matter for the Home Secretary is to decide whether the applicant’s presence in the United Kingdom is not conducive etc. Logically, the answer to that question is independent of any risk the applicant would fact if not permitted to enter the United Kingdom.

The passages in the policy the Claimants rely on do not suggest otherwise. In the first passage, the “circumstances of the individual” more naturally point to circumstances relevant to the not conducive question and not to matters that might weigh in favour of admission to the United Kingdom even though the applicant’s presence in the United Kingdom would, by reason of other matters, not be conducive to the public good. Similarly, the reference in the second passage to “factors in the individual’s favour” is better and more naturally read as referring to matters tending to show the not conducive standard is not met in the case in hand, not to matters logically distinct from that enquiry.

I accept, as the Claimants have submitted, that whether an applicant is at risk from harm is relevant to whether he meets the eligibility requirements under the ARAP Appendix to the Immigration Rules. The eligibility requirements are at paragraphs ARAP 3.1- 3.7. Paragraph ARAP 3.3 requires each applicant to meet any of the requirements at ARAP 3.4 or 3.5 or 3.6. Each of those paragraphs includes reference to whether the applicant’s safety is at risk. Thus, eligibility under ARAP does require consideration of personal risk an applicant faces. However, this does not affect the proper reading of the suitability policy. Under the Immigration Rules, the issue of eligibility ARAP is separate from the decision whether to issue a visa to enter the United Kingdom. An application that does not meet the conditions in the ARAP Appendix will fail. But when the requirement in the ARAP Appendix is met, the only consequence is that the applicant may then make an application for entry clearance: see ARAP 5.1. The entry clearance application is distinct from the ARAP eligibility question. Even though whether the applicant is at risk is relevant to the latter application, that says nothing as to the relevance of that matter for the purposes of the former application.

For sake of completeness, the March 2022 consideration minute did include reference to the risk the First Claimant now faces, referring to it as one of the matters in the First Claimant’s favour (see paragraphs 8-9 of the passage set out above at paragraph 4 of this judgment). The Claimants submit that there is no assessment of the risk faced. I do not consider that is a valid criticism. As written, the consideration minute accepts the First Claimant’s evidence of the risk and takes that into account. For the reasons already given, I do not consider the policy required the Home Secretary to take this matter into account. Nevertheless, this part of the March 2022 consideration minute shows that the matter was considered and, on that basis, I cannot see that the reasoning in this part of the minute reveals any legal error. Since the First Claimant’s evidence on this matter appears to have been accepted no further assessment or analysis of it was required.

The Claimant’s second submission by reference to the policy is that the conclusion on the not conducive to the public good issue was contrary to the policy because there was no evidence that anything the First Claimant had done was sufficiently serious to meet the standard the policy requires.

Part of the evidence relevant to this ground is closed evidence considered only in the closed part of the hearing. The Home Secretary’s open case was that the First Claimant had “released sensitive information and threatened to kill coalition forces when this was discovered”. This was the reason given in the 4 March 2022 decision letter and it is also the reason stated in the March 2022 consideration minute (see at paragraph 2 of the passage set out above).

The First Claimant’s evidence on the matter is as follows. In his first witness statement, made on 3 November 2021, the First Claimant said that he started work as an interpreter for British Forces in 2010, but only worked about 4 months. He said he resigned either in November or December 2010 because his family considered the work too dangerous and persuaded him to leave. The First Claimant then said that “towards the end of 2010” he changed his mind and asked to return to his job. He was told he could not because he had resigned and there was a policy not to re-employ people who had resigned until a period of time had passed. The First Claimant said he then applied to work for American forces and started with them on 24 February 2011. He said that in September 2011 his mother became ill and he took “emergency leave”. This leave appears to have been unauthorised; the First Claimant’s evidence refers to taking emergency leave only after a request to take annual leave had been refused. He also explained that when he returned, on 20 September 2011, he was paid and required to accept a letter of termination. He said he accepted the termination letter because he needed the termination money to support his sick mother. His evidence is that later he tried to visit British Forces in Kabul but was refused entry and was told he had “issues” with American forces that he needed to resolve before he could be allowed to work with British armed forces again. In this statement the First Claimant said that during his time working with American forces no complaints were made against him.

The First Claimant’s second statement was made on 26 May 2022 following the 4 March 2022 decision letter. In this statement he described an incident that took place “one day around 2011” when he was working for American forces.

“11

… I was in Kandahar Airfield and I went to the internet club (MWR). One of my childhood friends contacted me on my phone, he was asking me where I was and asked me why he hadn’t seen me in such a long time. I trusted this friend of mine and I told him I was working for the Americans as an interpreter and that I was in Kandahar. He then asked me to add him as a friend on Facebook so that we could remain in contact with each other. That is how I stayed in contact with family and friends through Facebook.

12.

I asked him what name I could find him under in Facebook he told me to search for “Mihrullah Koshan.” I searched him up on Facebook. The Facebook algorithm pulled up numerous individuals with that name and similar names so, I sifted through each name so that I could find my friend and add him. I clicked on one of the individuals when one of the Americans who was working in intelligence nudged me. He asked me whether I knew the person I was looking at. I explained to him, that I was looking for a friend of mine and that I was going through everyone’s profiles with the same or similar name. He asked me whether I minded him looking at the computer, I allowed him to do so.

13.

He went on the computer I was using for about 5 minutes. After a while he apologised and told me that I could continue using the computer. I thought that that was the end of it. I did not know who this individual was because he was from a different camp than mine.

14.

I then returned to our base camp in Shindand Airbase where one of the team members from ODA1314 pulled me to the side and told me someone had filed a complaint against me. Naturally, I was surprised and shocked about this. I asked who the person was and what he complained about. The person told me that while I was in Kandahar Airfield, an individual complained about me having potentially contacted someone who may have been from the Taliban. I then realised that this may have been due to me searching for my friend on Facebook. I told him what happened i.e. that I was searching for my childhood friend on Facebook and going through different profiles with the same or similar names.”

The First Claimant stated all this happened just before he took the emergency leave.

The First Claimant’s third statement was made on 23 October 2022 and includes the following:

“4.

I wish to provide further information during my employment with the British and Americans. Below I am providing various possibilities for why I may be considered a national security risk.

5.

One of my many tasks when I worked with the Americans was to intercept communications between the Taliban and any of their allies. We had to listen in on their conversations between each another to see whether they would release information which would be of value to the Americans e.g. details of when they would plant bombs or who they would target etc. This was a one way communication system in that we could only listen to them, they could not listen to us so it was not possible to speak with them.

6.

Whenever, the Taliban released information which provided insight on their next attack, we had to immediately go to our superiors and report it so that they could prevent the attack. Due to the communication stream being one way, whenever the Taliban used to disclose details of their plan, the interpreters, including myself, would joke around and say, “you won’t be able to do anything”. I believe the Americans may have interpreted this as meaning I was communicating with them but, I am not entirely sure because, they would know we would not be able to speak with the Taliban, we could only listen to them.”

The Home Secretary’s open evidence does not contain any further detail of the release of sensitive information and threat to kill referred to in the reasons provided with the 4 March 2022 decision letter. Both consideration minutes, of March 2022 and January 2023, consider the significance of these matters but neither contains any further detail of what is said to have happened. The Claimants’ submission is that the Home Secretary’s conclusion that the not conducive to the public good standard as explained in the policy was met, was not reasonably opened to her on the evidence available.

The policy makes clear that a conclusion that the not conducive to the public good standard is met does not depend on whether or not the applicant has criminal convictions. The policy refers to “reprehensible behaviour falling short of a conviction”. However, looking at the policy in the round, a certain level of gravity is required. The policy requires the Home Secretary to consider the nature and seriousness of the behaviour, the frequency of the behaviour, the difficulty that admitting a person who had behaved in that way to the United Kingdom could cause, and any other relevant circumstances concerning the applicant. The policy then lists situations where a person’s presence in the United Kingdom may not be conducive to the public good. That list is as follows:

The most that can be said in the open part of this judgment is that I am satisfied that it was open to the Home Secretary to conclude on the information available to her in this case that the First Claimant’s presence in the United Kingdom was not conductive to the public good. Notwithstanding the need for anxious scrutiny in the sense explained by Carnwath LJ in his judgment in YH, the court may not substitute its own assessment for that of the Home Secretary on an issue of this sort. Further, given the nature of the not conductive to the public good criterion, latitude must be afforded to the Home Secretary to assess for herself where the public interest lies. Further still, when taking her decision on this matter the Home Secretary is also entitled to adopt a precautionary approach. That goes to the extent of the latitude to be allowed. The conclusion that the First Claimant’s actions were sufficient to warrant a decision to reject his application to enter the United Kingdom was a reasonable available option. The policy requires any assessment “to be reasonable, proportionate and evidence-based”. I am satisfied the conclusion in this case met those requirements.

One aspect of the Wednesbury principles, explained by the House of Lords in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1044, is that a decision-maker must take reasonable steps to acquaint herself with relevant information. In this case, the Claimants submit that various enquires should have been made: had the intelligence relied on been provided by a US soldier acting maliciously; had the “joke” explained by the First Claimant in his third witness statement led to a misunderstanding; had his attempt to contact Misrullah Kashan by Facebook been misinterpreted; was the problem one of mistaken identity, had there been confusion between the First Claimant and someone else with a similar name; had the release of information had been by accident rather than on purpose; what was the context for the alleged threat to kill, was it, for example, only words perhaps spoken in the heat of the moment?

Since the Tameside obligation is an aspect of Wednesbury principles it does not set a requirement to make exhaustive enquiry. The decision-maker must make such enquiries as are reasonable in the circumstances of the case. What is reasonable is, in the first instance, for the decision-maker. The court will intervene only either where a decision-maker acting reasonably would have made the enquiries in issue, or an obligation to make the enquiry arises from some other source (e.g. from the relevant statutory scheme, or a legitimate expectation that the enquiry would be made). In this case, the narrative of how the Home Secretary took her decisions is set out in the closed evidence. For the reasons set out in the closed part of this judgment I am satisfied that the Home Secretary did take reasonable steps to acquaint herself with the information needed to address the not conducive to the public good question.

The Claimants’ contention is that because a significant number of decisions taken in August 2021 on visa applications made by ARAP applicants were withdrawn and re-taken in the face of actual or threatened legal challenge, there is an inference to be drawn that there was or might have been some generic flaw in the decision-making process for this type of application so that, before taking the March 2022 (or January 2023) decisions, the Home Secretary ought to have investigated what had happened in those other cases.

Whichever way this point is put, its substance is whether, when taking the decisions under challenge in this case, the Home Secretary failed to take account of a relevant matter. In the circumstances in which these decisions came to be taken it was for the Home Secretary to decide, subject to Wednesbury principles, whether what had happened when other visa applications were decided was a relevant consideration for the purpose of deciding the Claimants’ visa applications. Nothing in the Immigration Rules or the policy suggests any different standard applies.

I do not consider the Claimants’ submission to be a submission of substance. The Home Secretary was entitled to consider the merits of the Claimants’ visa applications on their own terms, without reference to other decisions taken in other cases on different facts. Taking account of the explanation in the closed evidence of the decision-making process, and the matters considered when the decision was taken, it is clear that the Home Secretary was entitled to proceed on the basis that there was no generic problem affecting decisions on visa applications made by ARAP applicants that needed to be considered for the purposes of the applications made by these Claimants. In this regard, it is notable that the Claimants’ visa applications were considered on three separate occasions. That sequence of events did not indicate the presence of any generic problem. Rather, the series of decisions was the consequence of the way in which the evidence available developed, as the First Claimant was able, for example, to respond to documents disclosed by the Home Secretary as each of the judicial review claims progressed. The evolution of evidence in this way may not be the usual course in judicial review proceedings but on occasion it does happen. In this case, the first decision in August 2021 was taken without the First Claimant having had an opportunity to make representations. Given the nature of the enquiry required by paragraph 9.3.1 of the Immigration Rules on the not conducive to the public good question there was nothing untoward in that, but it does explain why, in this case, the Home Secretary went on to reconsider her decision in light of the First Claimant’s first witness statement. The further reconsideration followed his subsequent witness statements. None of this raises any point of criticism of the First Claimant. Yet it is sufficient to explain the sequence of events in this case when the Home Secretary took her decision in August 2021, then re-took it in March 2022, and revisited it again in January 2023, without need to resort to the possibility that this sequence suggests some underlying problem with the decision making either in this case or in relation to ARAP applications more generally.

For these reasons the Home Secretary committed no legal error by confining her consideration of the Claimants’ visa applications to the circumstances of their own cases.

The Claimants’ submission is that these proceedings entail determination of article 6 civil rights and obligations such that there must be disclosure to the Claimants (as opposed only to Special Advocates) to the extent explained by the House of Lords in Secretary of State for the Home Department v AF (No.3) [2010] AC 269. The submission here is to the same effect as the submission on article 6 and disclosure I considered and rejected in R(ALO and others) v Secretary of State for the Home Department [2022] EWHC 2380 (Admin).

On the facts of this case there is a very short answer to the article 6 submission. The Home Secretary submits, and the Special Advocates agree, that even if it were assumed that these proceedings were subject to the principle stated in AF (No. 3), there would be no further documents to disclose. That is sufficient to dispose of this ground of challenge. Nevertheless, having heard submissions from counsel I will address the merits of their arguments on the law.

The issue in ALO was whether the court’s decision on the legal merits of the Home Secretary’s decisions on visa applications made by ARAP applicants was a determination of civil rights and obligations for the purposes of article 6. I concluded it was not. At paragraphs 16 – 19 of my judgment I said this:

“16.

I accept the Secretary of State's submission that article 6 does not apply to these proceedings because they do not entail determination of any civil right or obligation. This conclusion is an inevitable consequence of the judgment of the European Court of Human Rights in Maaouia v France (2001) 33 EHRR 42. That case concerned proceedings consequent on a deportation order. The Court concluded (at paragraph 38) that the subject matter of the proceedings did not concern the determination of a civil right within the meaning of article 6(1). The Court recognised that deportation could have major repercussions for a person's family and private life or on other matters – such as employment – that might be the subject of article 6 civil rights. However, that did not bring the challenge to the deportation order within the scope of article 6. At paragraph 40 of its judgment, the Court went on to say this: 

“The Court concludes that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or a criminal charge against him, within the meaning of Article 6(1) of the Convention.”

17.

In its judgment in MN v Belgium (Application 3599/18, judgment 5 March 2020), the Court repeated this conclusion: see that judgment at paragraph 137. The Court went on to state that the simple fact that a dispute was before a court did not mean it concerned or required determination of an article 6 civil right. What mattered was the nature of the issue in dispute and the nature of the decision under challenge, not the forum in which the challenge was pursued: see the judgment at paragraph 138 and 139. 

18.

The Claimants make four submissions seeking to avoid the application of these conclusions to the present case. The first, third and fourth points made are all to the effect that this case is distinguishable because of the May 2021 ARAP decision. The only reason, it is said, that the First Claimant was eligible to make an application under paragraph 276BA1 of the Immigration Rules was that he was eligible under the ARAP by reason of his former employment as an interpreter for British armed forces. This is not a material matter. It does not change the nature of the decisions made by the Secretary of State in November 2021, decisions on whether to grant the First Claimant and his family permission to enter the United Kingdom. The remaining, second, submission made by the Claimants is that the conclusion in Maaouia that article 6 did not apply, depended on the conclusion that article 1 of Protocol 7 to the ECHR did not apply. The material part of the Court's reasoning is at paragraphs 36 and 37 of the judgment: 

“36.

The Court points out that the provisions of the Convention must be constructed in line with the entire Convention system including the Protocols. In that connection, the Court notes that Article 1 of Protocol No. 7, an instrument that was adopted on 22 November 1984 and which France has ratified, contained procedural guarantees applicable to expulsion of aliens. In addition, the Court observes that the preamble to that instrument refers to the need to take "further steps to ensure the collective enforcement of certain rights and freedoms by means of the Convention …". Taken together, those provisions show that States were aware of Article 6(1) did not apply to procedures for the expulsion of aliens and wished to take special measures in that sphere …

37.

The Court therefore considers that by adopting Article 1 of Protocol No. 7 containing guarantees specifically concerning proceedings for the expulsion of aliens the States clearly intimated their intention not to include such proceedings within the scope of Article 6(1) of the Convention." 

19.

This does not support the conclusion that Article 6 applies in the present case. In Maaouia the Court referred to article 1 of Protocol 7 as an aid to interpretation of article 6 ECHR. However, its conclusion on the scope of article 6 is clear. Decisions of the type identified at paragraph 40 of the judgment (and also referred to at paragraph 35 of the judgment) are not decisions on civil obligations and therefore are not within the scope of article 6. The Court did not conclude that only matters within article 1 of Protocol 7 were outside the reach of article 6.”

Mr Buttler’s submission is that the conclusion in ALO is per incuriam because it was reached without consideration of the judgment of the Court of Appeal in R(K) v Secretary of State for Defence [2017] 1 WLR 1671. He further submits that even if article 6 does not apply, the Claimants still have an equivalent right to disclosure in these proceedings because the Home Secretary’s decision to refuse the visa applications was an interference with article 8 rights, and whether that interference is proportionate involves consideration of whether an appropriate procedure applied when the decision was taken.

The article 8 submission decision does not assist the Claimants’ case. Article 8 procedural rights are not generally interchangeable with article 6 rights. Article 6 has been carefully formulated; it has a particular scope. Article 6 and article 8 procedural rights will usually have different targets: the former focused on court or equivalent proceedings; the latter, in most instances, concerning the fairness of administrative decision-making where the decision interferes with article 8 rights and fairness is considered relevant to whether that interference is a justified. In situations where article 6 is the lex specialis (or at least, the more obviously appropriate standard), general resort to procedural obligations that have been read-in to other Convention rights for situations beyond the reach of article 6, must be undertaken with great caution to guard against the risk of subverting the overall scheme of the Convention rights.

Mr Buttler’s submission seeks to blur (or even erase) the distinction between article 6 and article 8 procedural rights by contending that here the Home Secretary’s decision and the determination in these proceedings of the legality of her decision are parts of a single “process” with which the Claimants have not been sufficiently involved. Thus, he submits, article 8 requires disclosure that is not available under article 6. This submission is clever, but wrong. There is no single “process”: on the one hand there was the Home Secretary’s decision on the visa applications; and on the other hand, there are these court proceedings in which the legality of her decisions is determined. In this context, the respective reaches of article 6 and article 8 procedural protections are clearly distinct. There is no principled basis for a submission that an appropriate application of Convention rights would permit the Claimants, by resort to article 8, to avoid (alternatively, de facto expand) the well-established scope of what count as civil rights and obligations for the purpose of article 6. Mr Buttler’s skeleton argument referred to a number of decisions of the European Court of Human Rights. But none of those judgments is authority for the proposition that article 8 and article 6 procedural rights are generally interchangeable.

Nor do I consider that the judgment of the Court of Appeal in K requires me to alter the conclusions on the reach of article 6 civil rights and obligations stated in my judgment in ALO. In K, the claimants claimed they had worked for the Ministry of Defence in Afghanistan as covert human intelligence sources. They challenged failures by the Defence Secretary and the Foreign Secretary to relocate them within Afghanistan and meet the cost of that relocation. Among other matters, the claimants contended that the Secretaries of State’s failure was in breach of their own policies, and in breach of the claimants’ rights under articles 2, 3 and 8 of the Convention. The Court of Appeal’s conclusion (so far as relevant for present purposes) was that determination of the legality of the failure to relocate and meet the cost of relocation did entail determination of civil rights and obligations for the purpose of article 6, and that disclosure in the proceedings had to be such as to ensure the proceedings were article 6-compliant.

There is no inconsistency between the conclusion in that case and the conclusion in this case that determining the legality of the Home Secretary’s decisions on the visa application does not, for article 6 purposes, entail determination of any civil right or obligation. The Claimants’ submission to the contrary rests on the contention that a successful challenge to the Home Secretary’s visa decisions could mean that they would enjoy the benefit of the relocation package available to all those who, like the First Claimant, have been determined to meet ARAP eligibility requirements. Thus, submit the Claimants, the decision of the court in these proceedings determines their entitlement to that relocation package and therefore entails determination of a civil right within the scope of article 6 – i.e., the right to the relocation package. In further submissions made after the Home Secretary had filed her Re-re-amended Summary Grounds of Defence, the Claimants contended that availability of the relocation package included a right to be removed from Afghanistan at least as far as the United Kingdom border, and that the court’s decision on whether the Home Secretary’s refusal to grant the visa applications was lawful was a determination of that right.

These submissions are wrong because they seek to merge the decision on eligibility requirements and the decision on the visa applications. The eligibility decision, which included a decision on provision of the relocation package, is a decision on a matter comparable to the matter before the Court Appeal in Y’s case. But in this case, that decision has already been made in the First Claimant’s favour and is not an issue in these proceedings. Whilst it is correct as a matter of ordinary language that whether the Claimants will enjoy the benefit of the eligibility decision is contingent on whether their visa application succeeds, that does not mean that the determination in these proceedings of the legality of the Home Secretary’s decision on the visa applications either entails or is some form of determination by this court of rights relevant to the eligibility decision. The substance of the issue before the court now, concerns only the legality of the decisions on the visa applications and, by reference to the decision in Maaouia that issue does not entail determination of an article 6 civil right or obligation.