England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Ouseley
[2012] EWHC 1117 (Admin) and [2013] EWHC 1426 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/02/2014

Lord Justice Richards :

1. The four appellants (AHK, AM, AS and FM) all have permission to appeal against orders made by Ouseley J in the Administrative Court by which, or as a result of which, their claims for judicial review were dismissed. The central issue before me is whether the appeals should be stayed pending pursuit by the appellants of an alternative remedy now available to them by way of applications to SIAC. A hearing of that issue, at which all parties were represented, took place on 11 February 2014. At the end of the hearing I reserved my judgment, in part because we had run out of time but principally in order to enable me to give proper consideration to written submissions and authorities relied on by Mr Southey QC which, through no fault of his, had not been received by me in advance of the hearing.
2. The background is that each of the appellants applied for naturalisation as a British citizen but had his application refused by the Secretary of State on the ground that he did not meet the "good character" requirement. In each case the Secretary of State declined to give detailed reasons for the refusal, adopting the position that disclosure of the reasons would be contrary to the public interest. AHK was simply told that his application for naturalisation was refused because of his association with Iranian elements hostile to British national interests. AM was told nothing beyond that naturalisation had been refused on the grounds of character and that it would be contrary to the public interest to give reasons. AS was initially told that it would be contrary to the public interest to give reasons beyond that naturalisation had been refused on grounds of national security; but he was subsequently told that it had been refused because there was reason to believe that he had made statements of an Islamist extremist nature to a number of individuals and had been involved in a range of activity for the purpose of advancing an Islamist extremist agenda. FM was told that the reasons for refusal were that he had openly preached anti-Western views and voiced sympathy with Usama Bin Laden at the Hatherley Street Mosque in Liverpool.
3. Each appellant brought a claim for judicial review to challenge the refusal of his application for naturalisation. Their claims came to be joined, numerous other claims of a similar nature being stayed behind them.

The judgments under appeal

4. I can pass over the earlier procedural stages and pick the matter up with the judgment of Ouseley J handed down on 2 May 2012. In that judgment Ouseley J held, in the light of the decision of the Supreme Court in Al Rawi v Security Service & Others [2011] UKSC 34, [2012] 1 AC 531 that there could be no closed material procedure even by consent in judicial review proceedings, save to the extent inherent in the PII process. He directed that the cases should therefore proceed to a PII hearing. Effect was given to the judgment by an order sealed on 22 June 2012.
5. The PII hearing took place on 25 October 2012. By an order of that date the judge upheld the Secretary of State's PII certificates and directed that, save for certain wording agreed between the Secretary of State and the Specially Appointed Advocate in the case of FM, there was to be no further disclosure to the appellants.
6. A further hearing then took place to decide what was to happen to the four cases. Somewhat to the judge's surprise, as he observed in the judgment he handed down on 7 June 2013, a variety of further submissions were raised by the appellants at that hearing as to why further disclosure was required in law. The judge rejected those submissions. He repeated the view he had expressed in May 2012 that in the absence of full disclosure of the reasons for the Secretary of State's decision the appellants were bound to lose their claims. The only appellant who sought a specific determination of the substantive claim on its merits was FM. The judge dismissed the claim, stating that FM simply could not show that the decision was flawed. Effect was then given to the judgment by an order sealed on 26 June 2013, dismissing all the claims.

The grounds of appeal

7. The judge granted permission to appeal on points arising from his judgments of 2 May 2012 and 7 June 2013. The appellants' grounds of appeal raise in broad terms the following issues, though they are put in different ways by the different appellants:

i) The appellants are entitled to a core minimum level of disclosure of the reasons for refusal of citizenship and an effective opportunity to rebut the allegations which underlie the assertion that they are not of good character.

ii) The judge was wrong in his approach to the PII exercise in circumstances where the essence of the case against the appellants had not been disclosed and no closed material procedure was available.

iii) The judge was wrong to find that the upholding of the PII claims meant that the appellants were bound to lose and that their claims should be dismissed.

iv) The judge was wrong to find that there was no interference with, or breach of, the appellants' ECHR rights, in particular under article 8 though articles 9 and 10 are also in play.

8. There is an application on behalf of AS to amend his grounds of appeal. The points he seeks to raise are similar in substance to points already advanced by others. Mr Phillips QC for the Secretary of State indicated that there would be no objection to the amendment if the appeals were not stayed.
9. In opposing a stay Mr Southey advanced for the first time a line of argument going beyond AM's existing grounds of appeal and without any formal application to amend. Although objection was made by Mr Phillips to such points being advanced in this way at this stage, I think it important to take the argument into account in considering whether a stay should be ordered. I come back to this below.

The alternative remedy in SIAC

10. At about the same time as Ouseley J granted permission to appeal there came into force provisions of the Justice and Security Act 2013 ("the 2013 Act") providing an alternative procedure for challenges against certain types of decision including the naturalisation decisions in issue in the present proceedings. Section 15 of the 2013 Act inserted new provisions into the Special Immigration Appeals Commission Act 1997 ("the 1997 Act") empowering the Secretary of State to certify that the decision was based on information that should not be made public in the interests of national security and, where such a certificate was made, entitling the person concerned to challenge the decision in SIAC. Specifically, new section 2D of the 1997 Act relates to naturalisation and citizenship decisions. It includes provisions to the effect that SIAC is to apply judicial review principles in determining such applications and has all the remedies that would be available in judicial review proceedings. The Justice and Security Act 2013 (Commencement, Transitional and Saving Provisions) Order 2013 ("the 2013 Order") contains provisions empowering the Secretary of State to certify decisions made before the 2013 Act came into force.
11. There was a delay in rendering an application to SIAC an effective route of challenge because it was only at the end of November 2013 that the relevant SIAC procedure rules came into force. Now that those rules are in place, however, challenges to naturalisation decisions certified by the Secretary of State can be pursued in the normal way in SIAC with the benefit of a closed material procedure.
12. On 6 February 2014, after a considerable further delay, the Secretary of State certified under section 2D of the 1997 Act each of the naturalisation decisions in issue in these proceedings, thereby giving the appellants the opportunity to challenge those decisions by way of applications to SIAC notwithstanding that, subject to the present appeals, their judicial review challenges to those decisions have been dismissed. The point is made on behalf of the Secretary of State that certification in these cases is unusual since ordinarily the dismissal of a claim would not allow for a further challenge to the underlying decision, but she has certified out of fairness to the appellants.
13. By virtue of rule 8 of the SIAC (Procedure) Rules 2003 as amended, if the appellants wish to avail themselves of the opportunity now given to them to apply to SIAC, notice of their applications must be given not later than 10 working days after they have been served with notice of the certification if the appellant is in the United Kingdom and not later than 28 working days if he is outside the United Kingdom. Whilst at the hearing none of the appellants displayed any enthusiasm about the opportunity to make an application to SIAC, I proceed on the basis that they all intend to commence proceedings in SIAC by the giving of the requisite notices.

The effect of certification on existing judicial review proceedings

14. The 2013 Order purported to provide that the effect of a certificate under the new provisions of the 1997 Act was to terminate any judicial review proceedings, or proceedings on appeal from such proceedings, which related to the decision to which the certificate related.
15. The consequence was that at the time of granting permission to appeal Ouseley J thought that it would be open to the Secretary of State, by making a certificate in these cases, to terminate the appeals and require the appellants to pursue their cases in SIAC. In his reasons for granting permission he said:

"These two decisions raise issues of importance about national security based refusals of naturalisation, where limited or no reasons are given, or areas of concern identified. The Justice and Security Act, subject to certain Orders, will permit the appeals to be terminated by the SSHD. It is that power which persuaded me that the CoA should decide the appeals rather than treating the Act as making them academic, because SIAC will hear future cases in a form of CMP".

16. Since then, however, the Court of Appeal has held in R (Ignaoua) v SSHD [2013] EWCA Civ 1498, [2014] 1 All ER 649 that the 2013 Order is ultra vires in so far as it provides that the effect of a certificate is to terminate existing proceedings. Accordingly, whilst a certificate, if and when made, opens the way to an application to SIAC, it does not of itself bring existing judicial review proceedings or appeals to an end. It is for the court to decide what should happen to existing proceedings when the decision under challenge is certified by the Secretary of State.
17. The claim in Ignaoua itself was remitted to the Administrative Court to determine whether the judicial review proceedings should be stayed or be allowed to continue.
18. In October 2013, prior to the decision in Ignaoua, the present appeals were stayed to await a decision of the Secretary of State on certification. Following the decision in Ignaoua I directed that the stays should continue pending the directions hearing, the purpose of which was to determine in the light of the up-to-date position whether (and if so on what issues) any or all of the appeals should be allowed to proceed to a substantive hearing. That question must now be determined in the light of the fact that, as explained above, the Secretary of State has at last certified each of the decisions under challenge.

The rival submissions

19. The appellants submit in essence that their appeals should be allowed to proceed to a full hearing and that pursuit of any application to SIAC should await the outcome of the appeals and, if the appeals succeed, of the continued judicial review proceedings.
20. The arguments were developed most fully by Mr Southey on behalf of AM. His submissions were adopted and added to by counsel for the other appellants and I will therefore treat what he said as applying to the appellants generally.
21. Mr Southey's starting point is that the appellants plainly have arguable appeals for which permission was granted by Ouseley J. He submits (and this submission is based squarely on the existing grounds of appeal) that the appellants should be allowed to continue with their challenge to the judge's approach to PII. The 2013 Act does not provide authority for denying the appellants the disclosure to which they are entitled at common law. If their arguments about PII are correct, a lawful determination of their claims for judicial review would have resulted in greater disclosure and they should not now be denied the material to which they were properly entitled.
22. A further argument, not fully reflected in the existing grounds of appeal but the main focus of Mr Southey's submissions at the hearing, is that the judge erred in relation to article 8. The argument covers both the question whether article 8 is engaged and the extent of procedural rights inherent in the article. The basic contention is that article 8 requires a core minimum level of disclosure which was wrongly denied to the appellants by Ouseley J. Mr Southey submits that the appeals should proceed in order for the court to lay down the correct legal basis for the prospective proceedings in SIAC.
23. Ouseley J held that article 8 was not engaged because its application to a refusal of naturalisation depends on an element of arbitrariness or discrimination which is lacking in these cases. The judge went on to find in the alternative that there was no interference with the article 8 rights of the appellants in any event. Mr Southey takes issue with the judge's approach to article 8 and with his conclusions. He submits that the appellants should have the opportunity to advance their appeals on those points because otherwise SIAC will be bound in practice to follow Ouseley J and to reject any ground of application based on article 8.
24. As to the procedural aspect of article 8, Mr Southey submits that unless the appellants are allowed to pursue their appeals SIAC will be bound to follow the decision of the Court of Appeal in R (BB) v Secretary of State for the Home Department [2012] EWCA Civ 1499, [2013] 1 WLR 1568, in which it was held that article 8 does not require disclosure of the gist of the nationality security allegations relied on at a closed hearing by the Secretary of State in support of bail conditions even though those bail conditions interfere with private and family life. Mr Southey wishes to argue, so far as necessary, that BB was wrongly decided. He relies on the decision of the ECtHR in Amie & Others v Bulgaria (Application no. 58149/08, judgment of 12 February 2013), on decisions in other contexts that the right to an effective challenge entails a minimum level of disclosure (e.g. ZZ v Secretary of State for the Home Department [2014] EWCA 7), and on other developments said to support the view that the standards of procedural fairness provided by article 8 include a core minimum level of disclosure. He submits that it would be open to the Court of Appeal to depart from its decision in BB if it were found to be inconsistent with subsequent case-law of the Strasbourg court: see R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311 at para 66.
25. Mr Southey adds that the complexity of the legal issues is such that the question of a stay should not be determined by a single Lord Justice at a directions hearing. Instead, all relevant issues should be considered during a single hearing considering both the merits of an appeal and whether it should be stayed.
26. For AHK and AS, Miss Weston reminds me that the target of the judicial review claims is the lack of reasons: each appellant has sought sufficient reasons to enable him to put the contrary case so as to get a fresh decision which he might then be in a position to challenge substantively. The judicial review proceedings are long-standing but the appellants are no further forward. It would be unjust to require them to pursue proceedings in SIAC without first securing a ruling from the Court of Appeal on the points of principle in the judicial review proceedings. SIAC proceedings would involve very considerable further delay, and in any event the appellants stand to lose the tangible benefit of possible further disclosure to which they claim to be entitled in the judicial review proceedings.
27. For FM, Mr de Mello factors in the consideration that in FM's case, unlike those of the other appellants, Ouseley J made a ruling on the substantive merits of the claim. He submits that if the appeals are not allowed to proceed SIAC will inevitably follow Ouseley J's reasoning because all the arguments were ventilated before the judge, both sides were represented and the facts will be the same, with no further input from the appellant. He submitted that the existence of a closed material procedure in SIAC, with the involvement of special advocates, will not be likely to change things.
28. The position taken by the Secretary of State is that the appeals should be stayed in order to enable the appellants to pursue their challenges to the naturalisation decisions in SIAC (Mr Phillips QC suggested in his written submissions that a stay for 6 months would be appropriate but he acknowledged at the hearing that that period might be unrealistically short). It is submitted that an application to SIAC provides an effective alternative to judicial review and cures the fundamental problems identified by Ouseley J in the judicial review proceedings: by the certification provisions Parliament intended to provide a new and more effective single forum, in SIAC, for challenges to decisions of this kind. The appellants should not be allowed to adopt a "wait and see" approach in relation to the pursuit of proceedings in SIAC.
29. Mr Phillips submits that if the appellants win in SIAC, that will be an end of the matter (subject, implicitly, to any appeal that the Secretary of State might seek to bring on a point of law). If the appellants lose in SIAC, it will be after the fullest consideration of their cases in the light of all the evidence, and any issues that the appellants seek to raise on appeal can be considered accordingly. If at that stage the court took the view that there was a useful purpose in any of the issues in the present appeals proceeding to a hearing, the appeals could be joined with any appeals from SIAC and all issues could conveniently be considered together.
30. In his written submissions Mr Phillips also advanced a number of arguments, which he did not develop further at the hearing, that the present appeals are in any event now academic or unnecessary.

Discussion

31. In my judgment the approach urged on me on behalf of the Secretary of State is the right one.
32. First, I am satisfied that the decision whether to impose the stay (or, strictly, to continue the existing stay) can and should be taken by me now, rather than following the course proposed by Mr Southey of allowing the appeals to proceed to a full hearing at which the question of a stay would be considered together with the substantive issues in the appeals. If a stay is appropriate, it should be imposed here and now; and it is perfectly normal for a decision on a stay to be taken by a single Lord/Lady Justice.
33. In my view the appellants' "wait and see" approach in relation to the pursuit of proceedings in SIAC is wrong in principle. I accept Mr Phillips's submission that the provisions of the 2013 Act allowing for the certification of decisions of this kind and the bringing of challenges to them in SIAC are intended to cure the problems identified by Ouseley J and to provide an effective and appropriate alternative to judicial review for the handling of such cases. It is true that, as the court pointed out in Ignaoua, Parliament left applicants with a choice between SIAC proceedings or judicial review in the Administrative Court, but that does not mean that applicants can properly pursue both routes, and in particular it does not mean that they should be permitted to press ahead with judicial review proceedings as far as they can and only then fall back on SIAC as an alternative remedy. That would involve both delay and a waste of court resources. If the alternative remedy in SIAC is to be pursued it should be pursued expeditiously. Different considerations might arise if the appellants wished to limit themselves to the existing judicial review proceedings and forgo the possibility of an application to SIAC. None of them, however, suggested that they wished to adopt that course.
34. It seems to me that the availability of an alternative remedy in SIAC is also a point of objection to the appellants' pursuit of their challenge to Ouseley J's approach to PII. It means that the legal landscape has changed and that the question whether the judge's approach was correct at the time it was adopted has become academic. The fact that SIAC would now be able to consider all the material in a closed material procedure must be a relevant consideration, tending to reduce the public interest in favour of disclosure in the interests of justice, even in relation to a PII issue arising in the context of judicial review proceedings: judicial review is not to be considered in a vacuum. This also makes it unlikely, in my view, that pursuit of the present appeals could lead to the appellants securing greater disclosure through the ordinary PII process than was allowed by Ouseley J.
35. Nor do I consider there to be force in the appellants' case that they should be allowed to pursue their present appeals with a view to improving their position in the prospective SIAC proceedings:

i) As regards the applicability of article 8, even if SIAC were to consider itself bound in practice to follow Ouseley J's conclusion that article 8 is not engaged, I would expect it to go on to consider in the alternative, as Ouseley J did, whether there is an interference with the appellants' article 8 rights; and SIAC would not be bound by Ouseley J's conclusions on that question but would have to make findings of its own on the basis of all the evidence before it. As to the procedural aspect of article 8, on the assumption that the article is engaged, the level of disclosure required by the Convention is highly dependent on context, so that the question raised by Mr Southey as to the correctness of BB is best considered if and when it arises in the context of an actual determination by SIAC: I do not consider it appropriate for the appellants to be allowed to pursue the judicial review appeals for the purpose of obtaining a ruling on the approach to be taken by SIAC in that different legal context.

ii) In relation to articles 9 and 10, as with article 8, it will be for SIAC to make its own findings of fact, based not only on the open evidence but also on the closed material, which is liable to affect issues of proportionality at least. It would not now be a useful exercise to examine such issues in the historical context of the judge's decision to dismiss judicial review proceedings.

36. Further, if the appellants succeed in their applications to SIAC, the present appeals will become academic on any view. If the appellants lose in SIAC, the court can assess in due course, in the light of SIAC's final determinations, whether there remains anything in the present appeals that ought properly to be pursued at that stage.

Conclusion

37. Accordingly, I am not persuaded by anything advanced on behalf of the appellants that I should allow these appeals to proceed now to a substantive hearing. I am satisfied that if the appellants are to pursue their alternative remedy in SIAC they must do so now and that the judicial review appeals should be stayed in the meantime.
38. I will therefore order that the stay of these four appeals is to continue pending determination of the appellants' applications to SIAC or further order. The position can be reviewed in the light of those determinations.
39. This judgment may be relevant not only in relation to similar cases pending in the Court of Appeal but also for judges of the Administrative Court when considering whether to stay judicial review proceedings at first instance (including Ignaoua) raising similar issues. I do not think that there are any restrictions on its citation but for the avoidance of doubt I give permission for it to be cited.