MH & Ors v Secretary of State for the Home Department (Rev 1)

Refusal of naturalisation does not engage a right to British citizenship or, ordinarily, a right to a fair trial under article 6. It may nevertheless engage article 8 where the refusal, particularly on undisclosed security-related grounds, affects reputation, family and private life, travel or the position of a refugee who may be stateless.

Common law and Convention fairness generally require an effective opportunity to address the substance, or gist, of decisive adverse concerns. Full disclosure is not normally required, and national security may limit disclosure. Where closed material lies at the heart of the challenge, a specially appointed advocate may be necessary to investigate disclosure and make submissions. The court should not routinely determine the merits in secret by examining the closed material alone.

The judgment concerned ten conjoined applications for judicial review of refusals of naturalisation by the Secretary of State. The claimants were long-term lawful residents, many recognised as refugees, and had otherwise satisfied the statutory requirements. The refusals relied on alleged associations with extremist or proscribed organisations, or gave no reasons, while invoking national security.

The applications raised the extent of procedural fairness required before refusing naturalisation, the possible engagement of article 8, and whether the court should request the Attorney General to appoint a specially appointed advocate to examine closed material and assist on disclosure. The court also considered whether the judge could determine the applications by privately reviewing the material without such assistance.

1. Nature of the right. The British Nationality Act 1981 confers no right to British citizenship in these circumstances. The applicant must satisfy the Secretary of State that he or she is of good character. The Secretary of State need not prove bad character, but must provide a fair opportunity to respond to decisive adverse concerns. Article 6 was not engaged because naturalisation is a public law decision and does not determine civil rights or obligations.
2. Fairness and disclosure. Applying R v SSHD ex p Fayed [1998] 1 WLR 76 and Attorney-General v Ryan [1980] AC 718, fairness normally requires disclosure of a sufficient gist to enable sensible representations and an effective opportunity to disabuse the decision-maker of a decisive adverse consideration. Full underlying documents or statements will rarely be necessary or practical. National security remains an overriding qualification.
3. Article 8. A refusal of naturalisation does not automatically engage article 8. In these cases, however, the cumulative impact on reputation, private and family life, travel, and the possible statelessness or insecure position of refugees was sufficient in principle to engage it. Procedural fairness was therefore required to make the protection practical and effective.
4. Specially appointed advocates. The court distinguished Murungaru v SSHD [2008] EWCA Civ 1015. In this context an SAA could investigate the basis for withholding information, identify material capable of disclosure, and challenge executive claims in a way the judge could not readily replicate. Appointment was not confined to cases where the judge was already minded to order disclosure. The court had power to request an SAA where the issues were difficult and sensitive and the appointment would provide greater fairness.
5. Permission was granted in cases 5, 6, 7, 8 and 10. An SAA was requested in cases 1, 2 and 4 and those cases, together with the permission cases, were to progress subject to further directions. No such direction was made in cases 3 and 9 because the information disclosed was sufficiently specific to permit sensible representations. The Secretary of State was directed to issue an open and closed public interest immunity certificate as soon as practicable.

First-instance directions judgment in conjoined judicial review applications. The judgment considered earlier decisions of the Administrative Court and Court of Appeal but does not state that this judgment was itself an appeal.