B e f o r e :
UPPER TRIBUNAL JUDGE KOPIECZEK
SIR ANDREW RIDGWAY
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||RESPONDENT|
Special Advocate: Mr J Johnson QC and Ms S Rhaman (instructed by Special Advocates Support Office)
For the Respondent: Mr Steven Gray (instructed by Government Legal Department)
Hearing Date 11 October 2016
Crown Copyright ©
The Honourable Mr Justice Flaux:
Introduction and factual background
"(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."
"In this section you need to give information which will help the Home Secretary to decide whether he can be satisfied that you are of good character. Checks will be made with the police and possibly other Government Departments, the Security Service and other agencies."
"To be of good character you should have shown respect for the rights and freedoms of the United Kingdom, observed its laws and fulfilled your duties and obligations as a resident of the United Kingdom. Checks will be carried out to ensure that the information you give is correct.
If you are not honest about the information you provide and you are naturalised on the basis of incorrect or fraudulent information you will be liable to have British citizenship taken away (deprivation) and be prosecuted. It is a criminal offence to make a false declaration knowing that it is untrue."
"3.7 – 3.12 You must say whether you have been involved in anything which might indicate that you are not of good character. You must give information about any of these activities no matter how long ago this was… If you are in any doubt as to whether you have done something or it has been alleged that you have done something which might lead us to think that you are not of good character you should say so.
You must also say here whether you have had any involvement in terrorism. If you do not regard something as an act of terrorism but you know that others do or might, you should mention it…If you are in any doubt as to whether something should be mentioned, you should mention it."
"Any act committed, or the threat of action, designed to influence a government or intimidate the public and made for the purpose of advancing a political, religious or ideological cause and that involves serious violence against a person, that may endanger another person's life; creates a serious risk to the health or safety of the public; involves serious damage to property; is designed to seriously disrupt or interfere with an electronic system."
"An organisation is concerned in terrorism if it:
a. commits or participates in acts of terrorism;
b. prepares for terrorism;
c. promotes or encourages terrorism (including the unlawful glorification of terrorism), or
d. is otherwise concerned in terrorism."
"I…declare that, to the best of my knowledge and belief, the information given in this application is correct. I know of no reason why I should not be granted British citizenship. I promise to inform the Home Secretary in writing of any change in circumstances which may affect the accuracy of the information given whilst this application is being considered by the Home Office. I understand that information given by me will be treated in confidence but may be submitted for checking against records held by other Government Departments, the Security Service and other agencies, local authorities and the police, where it is necessary for immigration or nationality purposes, or to enable these bodies to carry out their functions."
"These documents are required in order to demonstrate to the Secretary of State that you satisfy the requirements for naturalisation; specifically that you meet the residence requirements for naturalisation."
"Caseworkers will not normally consider a person to be of good character if, for example, there is information to suggest:
a. They have not respected and/or are not prepared to abide by the law…or
b. they have been involved in or associated with war crimes, crimes against humanity or genocide or other actions that are considered not to be conducive to the public good;
c. their financial affairs were not in appropriate order…or
d. their activities were notorious and cast serious doubt on their standing in the local community…or
e. they had practiced deceit in their dealings with the UK government…or
f. they have assisted in the evasion of immigration control or
g. they have previously been deprived and are seeking to re-acquire citizenship within a prescribed period."
"Caseworkers should normally accept that an applicant is of good character if:
(a) enquiries of other departments and agencies do not show fraud / deception has been perpetrated by the applicant in their dealings with them;
(b) there are no unspent convictions;
(c) there is no information on file to cast serious doubts on the applicant's character …"
"Whilst good character is not defined in the 1981 British Nationality Act, we take into consideration, amongst other things, the activities of an applicant, both past and present, when assessing whether this requirement has been satisfied.
The Secretary of State will not naturalise a person for whom he cannot be satisfied that the good character requirement has been met.
Your application for British citizenship has been refused on the grounds that the Home Secretary is not satisfied that you can meet the requirement to be of good character. It would be contrary to the public interest to give reasons in this case.
The decision on your application has been taken in accordance with the law and our prevailing policy. There is no right of appeal against this decision, but if you believe it is incorrect, you should write to us stating which aspect of the law and/or our policy has not been applied correctly. Only if these details are provided can the application be reconsidered."
"Your client's application was considered under section 6(1) of the British Nationality Act 1981. An individual, applying under this section, is required to meet a statutory [legal] requirement to be of good character. Good character is not further defined in nationality law, and a broad view has to be taken when judging whether this requirement is satisfied. We take into consideration, amongst other things, the openness and honesty of a prospective citizen when assessing whether this requirement has been satisfied.
The Secretary of State will not naturalise a person for whom she cannot be satisfied that the good character requirement has been met."
"Pursuant to Rule 38 of the Special Immigration Appeals Commission (Procedure) Rules 2003, we are now able to provide the following information in respect of the above matter: "You were refused naturalisation due to your association with Zaki, who was involved in Islamist extremist activity in Somalia. This association was of interest to the Security Service".
The following is a summary of the relevant guidance applied in this case:
"The paragraphs in question informed the caseworkers that they should give careful consideration to any application from someone known to associate, or have associated, with individuals or groups involved in extremist/terrorist (or related) activities. Caseworkers were directed to ask themselves the following questions:
● Is there strong evidence to suggest the applicant associated with such individuals whilst unaware of their background and activities? If so, did the applicant cease that association once the background and nature of these individuals came to light?
● Is there strong evidence to show the applicant associated with such individuals in an attempt to counter or moderate their extremist views?
● Are there any suggestions that the applicant's association signals their implicit approval of their views and nature of these individuals extremist activities/background?
● How long has this association lasted? The longer the association, the more likely that the applicant is aware of/approves of the activities and views.
● How long ago did such an association take place?
Caseworkers were informed that this list is not exclusive.
The relevant paragraphs go on to inform caseworkers that it is impossible to set 'rehabilitation' periods in this type of case and that each application will need to be considered on its own merit.
Caseworkers were instructed that an application may be able to satisfy the good character requirement if they:
● Were associated with an individual or group whilst being unaware of their backgrounds, even if their association was recent.
● Ceased such association as soon as they became aware of the background of the individuals.
● Presented strong evidence of choosing such associates with the aim of trying to moderate their views and/or influence over others.
Caseworkers were also instructed that they should normally refuse an application where:
● The applicant was associated for a significant length of time with such individuals; and/or
● Associated whilst being aware of their extremist views; and/or
● Provided little or no evidence to suggest they were seeking to provide a moderating influence.
One exception to this may be where association ceased many years ago. Caseworkers are reminded by the guidance that they will need to assess each application individually.""
(1) That there was procedural unfairness in the decision-making process, because the Secretary of State had failed to identify areas of concern in advance of making the decision and failed to give AFA a reasonable opportunity to address or rebut any such concerns before she made her decision;
(2) That the Secretary of State failed to give any adequate reasons for her decision, or indeed any reasons at all, in breach of a duty to give reasons for refusing AFA's application for naturalisation;
(3) That the decision to refuse naturalisation was Wednesbury unreasonable or irrational, specifically in saying that association with another person can lead to a decision that a person is not of good character.
(4) That for the same reasons as under Ground 3, the Secretary of State unlawfully fettered the discretion afforded to her in her policy.
The legal framework
"In R v. Secretary of State for the Home Department, ex parte Fayed  1 WLR 763,773F-G, Lord Woolf MR referred in passing to the requirement of good character as being a rather nebulous one. By that he meant that good character is a concept that cannot be defined as a single standard to which all rational beings would subscribe. He did not mean that it was incapable of definition by a reasonable decision-maker in relation to the circumstances of a particular case. Nor is it an objection that a decision may be based on a higher standard of good character than other reasonable decision-makers might have adopted. Certainly, it is no part of the function of the courts to discourage ministers of the Crown from adopting a high standard in matters which have been assigned to their judgment by Parliament, provided only that it is one which can reasonably be adopted in the circumstances."
"It is for the applicant to so satisfy the Secretary of State. Furthermore, while the Secretary of State must exercise her powers reasonably, essentially the test for disqualification from citizenship is subjective. If the Secretary of State is not satisfied that an applicant is of good character, and has good reason not to be satisfied, she is bound to refuse naturalisation."
(1) The Commission is required to apply a conventional judicial review approach to naturalisation challenges. The Commission's task is to review the facts and consider whether the findings of fact by the decision-maker are reasonable. In that part of the review there is no place for deference to the Secretary of State: see  and .
(2) The Commission does not need to determine for itself whether the facts said to justify a naturalisation decision are in fact true. As a matter of common law and ordinary public law, the existence of facts said to justify the denial of nationality does not constitute a condition precedent, and fact-finding is not necessary to determine whether the procedure is fair or rational: see -.
(3) Once the facts and inferences of fact have been reviewed, and if the factual or evidential conclusions drawn by the Secretary of State are found to be reasonable, the Commission should proceed to review the judgments made by the Secretary of State based on that factual picture. In that part of the review: "public law principles do support a degree of deference to the Secretary of State, for well-established reasons. The Minister has democratic responsibility and answers to Parliament; the Minister is entitled to formulate and implement policy; the Minister has expert advice to assist her conclusions. Here the task of the Commission is to interfere when and if the Secretary of State has been unreasonable, allowing for due deference paid": .
(4) In the absence of an arbitrary or discriminatory decision, or at the very least some other specific basis in fact, refusal of naturalisation will not engage ECHR rights. The challenge to the decision is open only on grounds of rationality; and even if ECHR rights are engaged, the exercise is still one of proportionality rather than a full merits review by the Commission:  and . It would be very rare in this context for there to be a breach of Article 8 rights, in other words that interference with private or family life will be disproportionate, given the level of public interest in enforcing a legitimate immigration policy: .
"What is required is a complete understanding of the issues involved and a recognition by SIAC that the inability on the part of the Special Advocates to take instructions from the interested parties on the material covered by the closed procedure heightens the obligation to review that material with care. In that regard, the possibility that other (potentially innocent) explanations might be available to rebut it (or the inferences drawn from it) has to be considered."
"I agree with SIAC that it is not sufficient for CLOSED disclosure to be limited to the summary prepared for the Home Office official (or Secretary of State) plus any other documents not before the summary writer but taken into account by the official or the Secretary of State). On the other hand, if SIAC intended to require the SSHD to disclose everything that the report or summary writer might have been able to access in the preparation of advice for officials or the Minister, in my judgment, it was in error. I would require disclosure of such material as was used by the author of any relevant assessment to found or justify the facts or conclusions expressed; or if subsequently re-analysed disclosure should be of such material as is considered sufficient to justify those facts and conclusions and which was in existence at the date of decision. An appropriate declaration should be agreed by the parties accordingly."
The applicant's witness statements
No procedural unfairness
"What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."
"Similarly here the material recently disclosed could have been disclosed prior to the decisions being taken or at least there could have been disclosed a gist or summary. It is to be noted that the disclosures were not made by order of the Commission but after discussion between the Special Advocate and Counsel for the Secretary of State."
"In considering an application for naturalisation, it is established by the first Fayed case that the Secretary of State is subject to an obligation to treat the applicant fairly, which requires her to afford him a reasonable opportunity to deal with matters adverse to his application. In my view, that obligation may sometimes be fulfilled by giving an applicant fair warning at the time he makes the application (e.g. by what is said in Form AN or Guide AN) of general matters which the Secretary of State will be likely to treat as adverse to the applicant, so that the applicant is by that means afforded a reasonable opportunity to deal with any such matters adverse to his application when he makes the application. In other circumstances, where the indication available in the materials available to an applicant when he makes his application does not give him fair notice of matters which may be treated as adverse to his application, and hence does not give him a reasonable opportunity to deal with such matters, fairness will require that the Secretary of State gives more specific notice of her concerns regarding his good character after she receives the application, by means of a letter warning the applicant about them, so that he can seek to deal with them by means of written representations (as eventually happened in the Fayed case). Where there is doubt about whether the obligation of fairness has been fulfilled by means of the indications given by the Secretary of State at the time an application is made, she may be well-advised to follow the procedure adopted for the second Fayed case so as to avoid the need for argument about the issue in judicial review proceedings."
No obligation to give reasons
"We are however satisfied on the evidence and arguments advanced before us that the process in these two cases was unfair and that the decisions should be quashed. The Secretary of State should reconsider the applications after giving the appellants a reasonable time to submit representations.
We make it clear that we have reached this conclusion on the unusual history and facts of these two cases."
The decision was not Wednesbury unreasonable and there was no fettering of discretion
Section 31(2A) of the Senior Courts Act 1981