Murungaru v Secretary of State for the Home Department & Ors

A contractual right is a possession within article 1 of the First Protocol only if it constitutes an asset. Contractual status alone is insufficient. Relevant characteristics include present economic value, assignability, transmissibility and realisability.

A special advocate outside a statutory scheme is an exceptional, last-resort safeguard. Appointment is appropriate only where the interests of justice require it and ordinary judicial scrutiny cannot provide sufficient protection. Its availability cannot justify reducing existing procedural safeguards.

Public interest immunity does not extinguish the common law right to procedural fairness. The court may inspect closed material to determine what fairness requires and whether the decision withstands judicial review, while recognising that it is not an appellate decision-maker.

The appellant, a former Kenyan government minister, challenged the revocation of his multiple-entry visa. He alleged procedural unfairness and interference with contractual rights relating to medical treatment, which he said were possessions protected by article 1 of the First Protocol.

Keith J, in [2006] EWHC 2416 (Admin), held that the court needed to inspect material protected by a public interest immunity certificate. Mitting J subsequently requested that the Attorney-General appoint a special advocate. The Home Secretary appealed against that request and the reasoning on which it depended.

The Court of Appeal considered whether the medical-services contract was a possession, whether Convention rights could be used to challenge an immigration decision, what procedural fairness required at common law, and whether the closed material warranted a special advocate.

1. Appeal allowed unanimously to a limited extent. The request that the Attorney-General appoint a special advocate was quashed. The judicial review proceedings were remitted for determination in accordance with the Court of Appeal’s judgment.

2. Dr Murungaru had no viable claim under article 1 of the First Protocol. Per Sedley LJ and Lewison J, contractual rights are not possessions merely because they arise under a contract or may be classified domestically as choses in action. The Convention concept is autonomous, but the rights or interests must constitute an asset. The personal medical-services contract was non-assignable, non-transmissible, incapable of realisation, and had no present economic value. It therefore lacked the relevant characteristics of a possession.

3. Even on the contrary assumption that a possession existed, the claim was in substance a challenge to an immigration decision. Convention property rights cannot be used to disguise such a challenge. Conversely, the state cannot characterise a genuine interference with a Convention right as immigration control merely to avoid review. On these facts, the interruption of medical treatment was incidental to the decision to exclude the claimant.

4. The common law procedural challenge remained viable. Whether fairness required disclosure, and what weight the court should give the undisclosed reasons if disclosure was unavailable, depended on examination of the closed material. The reviewing court was not an appellate tribunal substituting its own decision for that of the Home Secretary.

5. A special advocate outside a statutory scheme is exceptional and a last resort. The court must consider whether ordinary safeguards suffice, including the duty of the party present to disclose adverse material and the judge’s duty to test and probe the case. It must also consider whether a special advocate could make a significant contribution. The availability of such an advocate cannot reduce protections otherwise guaranteed by law.

6. The Court of Appeal inspected the closed material and found it uncomplicated and undramatic. A judge could critically examine it without a special advocate. Appointment was therefore unnecessary in the remaining common law claim.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 1015, allowed the Home Secretary’s appeal to the extent of quashing the request for a special advocate and remitted the judicial review proceedings.
2. High Court, Administrative Court: Mitting J requested that the Attorney-General appoint a special advocate to assist with the closed material.
3. High Court, Administrative Court: Keith J, in [2006] EWHC 2416 (Admin), held that the procedural and Convention issues could not be determined without examining the closed material and adjourned the matter for consideration of the appropriate procedure.