Al-Fayed (R. on the Application of) v Secretary of State for the Home Department (No. 2)

A refusal of naturalisation on character grounds is an administrative decision. Where the decision-maker directs himself correctly, the court may intervene only if no reasonable decision-maker could have reached the decision. A complaint that the refusal was an excessive or disproportionate reaction may therefore amount to conventional irrationality without requiring proportionality to be recognised as a separate ground of review.

Good character permits more than one rational standard. A minister may reasonably adopt a high standard in exercising a discretion entrusted by Parliament.

A provisional view does not establish prejudgment unless it indicates a closed mind. Apparent bias may be waived where a fully informed person freely and unequivocally asks the challenged decision-maker to proceed. A person cannot reserve the objection pending the outcome.

The appellant, an Egyptian national, applied for naturalisation under section 6(1) of the British Nationality Act 1981. The Home Secretary refused the application because he was not satisfied that the appellant met the good-character requirement in paragraph 1(1)(b) of Schedule 1.

An earlier refusal without reasons had been successfully challenged in R v Secretary of State for the Home Department, ex parte Fayed [1998] 1 WLR 763. The applications were consequently redetermined. After inviting further representations, the Home Secretary relied on the appellant's failure to stop the examination of a customer's safe-deposit box and his payments and benefits to Members of Parliament.

Ognall J dismissed the renewed application for judicial review on 21 October 1999. The appellant contended before the Court of Appeal that the refusal was irrational or disproportionate and that a reported newspaper remark showed actual or apparent prejudgment. The Home Secretary alternatively contended that any objection based on prejudgment had been waived.

1. Appeal dismissed unanimously. Nourse LJ delivered the leading judgment. Kennedy and Rix LJJ agreed that the refusal of naturalisation was neither irrational nor disproportionate.

2. The Home Secretary had correctly directed himself under section 6(1) and paragraph 1(1)(b) of Schedule 1 to the British Nationality Act 1981. The remaining question was whether no reasonable decision-maker could have refused the application. The proportionality argument alleged that the decision was an excessive reaction to the matters relied upon. In substance, it was conventional irrationality. It was unnecessary to decide whether proportionality existed as a separate ground of domestic administrative law.

3. The requirement of good character was capable of reasonable application despite its imprecision. The courts should not discourage a minister from adopting a high standard in a matter entrusted to ministerial judgment, provided that standard could reasonably be adopted. The appellant's repeated failure to stop the examination of the safe-deposit box could reasonably be regarded as a serious want of probity. The Home Secretary could also reasonably find that the appellant knew that secret payments to Members of Parliament were improper. Either matter justified his inability to be satisfied that the appellant was of good character.

4. The allegation of prejudgment was not proved. An allegation that a minister prejudged a quasi-judicial decision required evidence of corresponding gravity. The newspaper account depended on an unidentified source's second-hand account, and the context of the alleged remark was unknown. The evidence did not establish on the balance of probabilities that the reported words, or words to similar effect, had been used.

5. Even if the remark had been made, it was consistent with a tentative view formed before the papers were considered. It did not indicate a closed mind or a real danger of actual bias under R v Gough [1993] AC 646. A decision-maker may form a provisional view while remaining willing to consider the evidence and submissions fully.

6. As an alternative ground, all three Lord Justices concluded that any objection based on apparent prejudgment had been waived. Waiver requires full knowledge and a freely made, clear and unequivocal choice. Knowing that the reported words had not been denied, the appellant repeatedly expressed confidence in the Home Secretary's impartiality and asked him to decide the application. He could not await the outcome and then object to the decision-maker.

7. Kennedy and Rix LJJ considered that established actual bias, or a blatant display of bias likely to undermine public confidence, might be incapable of private waiver. That question did not arise because no such bias had been shown.

The appeal was dismissed with costs, and leave to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The refusal of naturalisation was rational, prejudgment was not established, and any objection based on apparent prejudgment had in any event been waived. Leave to appeal to the House of Lords was refused.
2. High Court, Queen's Bench Division, Crown Office List: Ognall J dismissed the application for judicial review on 21 October 1999 and refused permission to appeal. No citation is stated.
3. Earlier Court of Appeal proceedings: An earlier refusal without reasons had been successfully challenged in R v Secretary of State for the Home Department, ex parte Fayed [1998] 1 WLR 763. The Home Secretary withdrew his appeal to the House of Lords, leaving the applications to be redetermined.