AHK & Ors v Secretary of State for the Home Department

In naturalisation judicial review claims involving sensitive national security material, the duties of fairness, reasons and candour are subject to public interest immunity. The court must determine relevance, sensitivity, possible gisting and the balance between national security and the administration of justice. A closed material procedure cannot be created by the court for these proceedings without Parliamentary authority, and the parties cannot introduce one by consent. The claims must proceed through a conventional public interest immunity process, assisted by a specially appointed advocate. If relevant material remains undisclosed after that process, a substantive challenge will ordinarily fail because the court cannot fairly hold the Secretary of State’s decision unlawful without seeing the material on which it was based.

The claimants challenged refusals of naturalisation under section 6 of the British Nationality Act 1981. The Secretary of State had given limited reasons, relying on national security and, in some cases, alleged extremist activity or associations. The claimants alleged unfairness, inadequate reasons and breaches of Convention rights. Earlier Court of Appeal proceedings concerned disclosure and special advocates, and the Supreme Court’s decision in Al Rawi and Others v Security Service raised the question whether a closed material procedure could be used.

The directions hearing concerned the proper relationship between public interest immunity, disclosure duties and any closed material procedure in these judicial review claims.

1. Applicable duties. The statutory discretion to grant naturalisation arises only if the Secretary of State is satisfied that the applicant meets the statutory requirements, including good character. Common law duties of fairness and reasons require disclosure of sufficient areas of concern and reasons to permit an effective response, but those duties are limited by national security and other public interests. The litigation duty of candour does not impose a separate or more extensive disclosure obligation.
2. Public interest immunity. The Secretary of State must claim public interest immunity where appropriate. The court must decide relevance and significance, whether a protected public interest is engaged, and whether disclosure, including a gist or concession, can occur without unacceptable harm. The nature and degree of the public interest, the importance of the material to the claim, and institutional respect for ministerial and expert assessments are relevant. Material obtained by torture cannot be relied on by the Secretary of State in court.
3. Specially appointed advocates. A specially appointed advocate should assist the court in the public interest immunity process, including by testing the claim and proposing possible gists. The process may cover witness statements as well as documents.
4. Closed material procedure. Although a closed procedure may be compatible with article 6 in an appropriate statutory context, Al Rawi and Others v Security Service establishes that a procedure involving so fundamental a departure from ordinary open justice and disclosure requires Parliamentary provision. That principle applies equally to these judicial review proceedings. The parties cannot create the procedure by consent, because open justice and the rule of law concern the public interest as well as the litigants.
5. Consequences. The absence of a closed material procedure does not alter the public interest immunity balance. After the process, the court cannot fairly review the substantive lawfulness of a decision while knowingly lacking relevant material on which it was based. Subject to unusual circumstances such as a disclosed document positively revealing an error, a claimant will ordinarily be unable to succeed if the Secretary of State states that she relied on material which the court has ordered not to be disclosed.
6. The claims were directed to proceed to public interest immunity hearings, with a specially appointed advocate for each claimant. The Secretary of State was to lodge the relevant witness statements, documents and immunity certificates. Further directions were left until the outcome of those hearings.

Not an appeal. The judgment records earlier procedural decisions and related appellate authority, but determines directions for the claims at first instance.