AHK & Ors v Secretary of State for the Home Department

Where national-security material relied on in refusing naturalisation is protected by public interest immunity, the common-law duty of fairness does not require disclosure of the material, its gist, or sufficient detail to enable a response if that would conflict with the statutory duty to consider all relevant material. The court cannot review the substantive merits on partial evidence while disregarding the protected material. Nor can it require the Secretary of State to grant naturalisation when the statutory good-character requirement is not met.

Procedural protection under Articles 8, 9 and 10 may be less extensive than that required under Articles 5(4) or 6. Judicial review, together with the public interest immunity process, may constitute an effective challenge where the interference with Convention rights is limited and the undisclosed material cannot lawfully be examined.

The claimants challenged refusals of naturalisation under section 6 of the British Nationality Act 1981. The Secretary of State was not satisfied that they were of good character and relied on national-security material which could not be disclosed.

In an earlier judgment, the court held that a public interest immunity process was required, rejected the judicial creation of a closed material procedure, and concluded that the substantive claims could not succeed unless all relied-on material were disclosed. After the PII certificates were upheld, the claimants sought further disclosure, reconsideration of the PII decision, declarations concerning Articles 8, 9 and 10, and, in FM’s case, substantive review of the refusal.

1. Further disclosure and a confidentiality ring. The court refused to revisit the PII decision. A lawyer-only confidentiality ring would create substantial risks of inadvertent disclosure, source identification, and inadequate vetting. It would also be self-defeating because material disclosed only to lawyers would not enable the claimants themselves to answer the concerns. The approach in Mohammad v Secretary of State for the Home Department was not adopted; the court preferred the objections identified in Somerville v Scottish Ministers.
2. Common-law fairness. The Secretary of State had to decide the good-character issue on all relevant material. An implied duty to disclose could not require her either to ignore protected material or to disclose material whose protection had been upheld. There was no obligation to disclose a gist or sufficient reasons where that would conflict with the statutory scheme and PII.
3. Convention rights. A refusal of naturalisation does not, merely because of its effects on reputation, travel, family life or security, engage Article 8 in the absence of an additional quality such as arbitrariness or discrimination. Articles 9 and 10 were engaged for FM and AS, and might be engaged for the other claimants, but the interference was limited. Applying IR (Sri Lanka) v Secretary of State for the Home Department, R (BB) v Special Immigration Appeals Commission and Carnduff v Rock, the judicial review and PII procedures provided protection which was effective in the circumstances. The Convention did not require disclosure that would risk national security.
4. Substantive challenge. In FM’s case the court could not decide rationality by considering only disclosed evidence while ignoring the evidence relied on by the Secretary of State but protected by PII. It could neither quash the decision on that incomplete basis nor order naturalisation. The substantive application was dismissed.

The judgment records an earlier judgment in the same proceedings, [2012] EWHC 1117 (Admin), concerning the appropriate procedure for public interest immunity and the unavailability of a court-created closed material procedure. The present judgment dismissed the claims after the PII process was completed.