Secretary of State for the Home Department v AHK & Ors

When undisclosed material is relied upon in judicial review proceedings concerning a refusal of British citizenship, a special advocate should be appointed where that course is just and necessary to determine the issues fairly. Appointment is neither automatic nor dependent upon the judge always examining the closed material first.

The decision is case-specific. Relevant matters include the significance and volume of the closed material, the importance of the decision to the claimant, the difficulty of answering the case in open proceedings, the information already disclosed and the contribution a special advocate might make. If the judge first examines the material, the public authority must provide all relevant material, favourable and unfavourable, but may supply only a short identifying note rather than unilateral submissions. Less open information makes appointment more likely.

The Secretary of State refused several refugees’ applications for British citizenship because she was not satisfied that they met the good-character requirement under section 6 and Schedule 1 to the British Nationality Act 1981. She withheld relevant material, or reasons for the decisions, on public-interest grounds which principally concerned national security.

Blake J invited the Attorney General to appoint special advocates in nine judicial review claims, but declined to do so in FM’s case. The Secretary of State appealed in six cases and FM appealed separately. The central question was whether a judge should examine the closed documents before deciding whether to request a special advocate, and the circumstances in which such an appointment should be made.

1. Disposition. The Secretary of State’s appeals and FM’s appeal were allowed. Every case was remitted to Blake J, or another judge if necessary, for individual reconsideration under the principles stated by the Court of Appeal. The court expressed no concluded view on whether a special advocate should be appointed in any particular claim.
2. A claimant is ordinarily entitled to the reasons for refusing citizenship and to see all material considered or relied upon by the Secretary of State, whether favourable or unfavourable. A judge ordinarily should not examine material withheld from a party. Public-interest considerations, particularly national security, may justify exceptions to those principles.
3. A special advocate should be appointed where it is just, and therefore necessary, to do so for the issues to be determined fairly. Appointment is not automatic. Nor must the judge invariably inspect the closed material before deciding whether to request one. The governing consideration is fairness to both the claimant and the Secretary of State.
4. The court should consider all the circumstances. Appointment is more likely where the case involves significant issues or substantial closed material. Relevant matters include the importance of citizenship to the claimant, the claimant’s difficulty in answering an undisclosed case, and whether a special advocate may assist both the claimant and the court. Administrative convenience must not dilute those safeguards. The less information or gist supplied to the claimant, the stronger the case for appointment.
5. If the Secretary of State asks the judge to inspect the material first, both parties may make open submissions about that course. She should indicate broadly the volume of documents. The closed bundle must contain all available relevant material, favourable or unfavourable, with only a short note identifying key documents and the grounds for non-disclosure. The Secretary of State must not make unilateral written or oral submissions on the merits. The judge may request a special advocate when in doubt.
6. The procedure recognised that an independent judge may sometimes resolve a limited disclosure issue by reading a small body of material. It also guards against the judge being, or appearing to be, drawn into the arena. A subsequent decision whether to request a special advocate is discretionary and attracts only limited appellate review.

1. Court of Appeal (Civil Division): By [2009] EWCA Civ 287, allowed the Secretary of State’s appeals and FM’s appeal, set aside the existing case-specific approach and remitted all claims for reconsideration under the stated procedural principles.
2. Administrative Court: Blake J invited the Attorney General to appoint special advocates in nine citizenship judicial review claims, declined to do so for AM and FM, and granted permission to appeal. Some permission applications had previously been decided by other judges.