R v Secretary of State for the Home Department, Ex parte Fayed (Fayed, Ex parte)

An express provision that the Secretary of State is not required to give reasons for a discretionary naturalisation decision does not, without clear language, exclude the ordinary duty of procedural fairness. Where an applicant cannot know the matters causing concern, fairness may require sufficient prior notice of their subject matter to permit meaningful representations. The required notice need not disclose confidential material where public interests justify non-disclosure.

Section 44(2) of the British Nationality Act 1981 prevents a court from requiring reasons for the ultimate decision. It does not protect a procedurally unfair decision from judicial review as a decision made outside jurisdiction.

Two long-resident Egyptian brothers applied for naturalisation as British citizens under section 6 of the British Nationality Act 1981. Their applications were refused after lengthy consideration. They received neither reasons nor any indication of the matters causing the Secretary of State concern.

Judge J in the Queen’s Bench Division dismissed their applications for judicial review. He held that the protection from any requirement to give reasons in section 44(2) also excluded a pre-decision duty to disclose the adverse case. The applicants appealed, contending that they should have had a fair opportunity to address the matters weighing against naturalisation.

1. Appeals allowed by a majority. Lord Woolf MR and Lord Justice Phillips held that the refusal decisions had been reached by an unfair procedure. The decisions were quashed and must be retaken fairly. Lord Justice Kennedy dissented.

2. Section 44(2) of the British Nationality Act 1981 did not remove the court’s supervisory jurisdiction over a decision made outside the Secretary of State’s powers. Following Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, an ouster clause does not protect a decision tainted by a failure to comply with the requirements of fairness. The court could review legality, though not the merits of naturalisation.

3. Absent section 44(2), fairness required the Secretary of State to identify the subject matter of adverse concerns and give the applicants a proper opportunity to respond. The seriousness of refusal, the possible effect on reputation, and the breadth of matters potentially relevant to good character made meaningful representations impossible without notice. The duty applied although naturalisation was a discretionary privilege rather than an entitlement.

4. The majority held that the statutory exclusion of any requirement to give reasons did not impliedly remove that prior duty of disclosure. Giving notice of concerns serves the more direct purpose of making the decision-making process fair. It is distinct from explaining the reasons for the final decision. Notice need only be sufficient to enable representations; where disclosure would harm national security, diplomatic interests, or another public interest, the Secretary of State could state that position and its justification would remain reviewable.

5. The express wording of section 44(2) nevertheless prevented the court from compelling reasons for the final refusal. Fairness could be achieved through sufficient pre-decision notice. Lord Justice Kennedy would have held that advance disclosure would in substance require disclosure of reasons and so frustrate Parliament’s purpose.

6. The Secretary of State could not rely on an absence of proved prejudice when the applicants had been denied the information needed to show what representations they could have made. The court did not determine the merits of either naturalisation application.

• Court of Appeal (Civil Division) — Allowed the applicants’ appeals by a majority and quashed the Secretary of State’s refusal decisions: [1998] 1 WLR 763. Leave to appeal to the House of Lords was granted.
• Queen’s Bench Division, Crown Office List — Judge J dismissed the applications for judicial review on 26 February 1996. The citation is not stated in the judgment.