Murungaru v Secretary of State for the Home Department & Ors

Procedural fairness in an immigration exclusion case is context-sensitive. It will generally require notice of the proposed decision, sufficient disclosure of the gist of the case, and an opportunity to make effective representations. National security, diplomatic interests or criminal intelligence may justify withholding those steps, but only after the decision-maker has balanced the protected interest against the individual’s opportunity to respond. The court remains the ultimate arbiter and may need to inspect the underlying material.

Serious consequences increase the importance of fairness but do not automatically require disclosure. Where exclusion interferes with contractual rights to treatment in the United Kingdom, the court must also examine legality, public interest and proportionality. Excluding a person from transiting the United Kingdom is not irrational merely because transit would not itself enable the feared conduct.

The claimant, a Kenyan politician and former Minister, challenged the Secretary of State’s personal decision to exclude him from the United Kingdom because his presence was said not to be conducive to the public good. Related challenges concerned the airline alert preventing transit and the revocation of his entry clearance.

The claimant alleged pre-decision and post-decision unfairness, inadequate reasons, breach of Art. 6 of the Convention and Art. 1 of the First Protocol, and irrationality concerning transit. The Secretary of State relied on undisclosed material concerning alleged involvement in corrupt practices and claimed public interest immunity. The central issue was whether the claim could be determined without judicial inspection of that material.

1. Pre-decision fairness. The ordinary requirements of fairness generally include notice of the proposed exclusion, disclosure of the gist of the case, and an opportunity to make effective representations. Those requirements depend on the circumstances. National security, criminal intelligence or diplomatic considerations may justify withholding them in an appropriate case.
2. The Secretary of State must balance the interest protected by non-disclosure against the desirability of allowing effective representations. The court is the ultimate arbiter of that balance. Where necessary, it must inspect the material itself. The claimant’s serious interests and the urgency of the decision did not permit the court to determine the issue without inspection.
3. Reasons. Exclusion decisions, particularly where a recent visa is revoked, would ordinarily require reasons as a matter of procedural fairness. The same public interests may nevertheless justify withholding reasons. That issue also required examination of the underlying material.
4. Convention rights. Art. 6(1) was not directly engaged by an overseas exclusion decision, but could be engaged if another Convention right applied. The claimant’s contractual right to continuing medical treatment in the United Kingdom was a possession for the purposes of Art. 1 of the First Protocol. Exclusion therefore engaged that provision. Whether the interference was lawful and proportionate depended on the requirements of fairness, the immediacy of the public interest, and the proportionality of preventing continued treatment in the United Kingdom.
5. Any claim under Art. 6(1) concerning non-disclosure likewise required the court to inspect the material and assess whether withholding it was justified and proportionate.
6. The challenge to the transit restriction failed at this stage. Preventing physical presence in the United Kingdom for all purposes could rationally support the Kenyan Government’s anti-corruption initiative, even though transit would not itself facilitate corrupt activity.

Further consideration of the judicial review claim was adjourned, including directions for considering the confidential material and any possible appointment of a special advocate.