AHK & Ors, R (On the Application Of) v Secretary of State for the Home Department

Where a statutory certification scheme makes SIAC an effective alternative forum with a closed material procedure, appellants should pursue that remedy expeditiously rather than continue a judicial review appeal and reserve SIAC as a fallback. Certification does not automatically terminate existing proceedings, but the court may stay them to avoid delay and wasted resources. A challenge to an earlier public-interest-immunity ruling may become academic because SIAC can consider the closed material. Convention disclosure and proportionality questions are context-dependent and should ordinarily be addressed in the actual SIAC determination, not through an advisory ruling in historical judicial review proceedings.

Four appellants challenged refusals of their applications for naturalisation on good-character and national-security grounds, where detailed reasons were withheld. Ouseley J upheld public-interest-immunity certificates and dismissed the judicial review claims in judgments reported at [2012] EWHC 1117 (Admin) and [2013] EWHC 1426 (Admin).

After the Justice and Security Act 2013 came into force, the Secretary of State certified the decisions under the Special Immigration Appeals Commission Act 1997, enabling challenges in SIAC using a closed material procedure. The central issue was whether the appeals should proceed to a substantive hearing or remain stayed while the appellants pursued that alternative remedy.

1. Stay of appeals. The appeals were stayed pending determination of the appellants’ applications to SIAC or further order. The decision was properly made by a single Lord Justice at a directions hearing; that is a normal course for determining whether to impose or continue a stay.
2. Effect of the statutory scheme. Section 15 of the Justice and Security Act 2013 inserted provisions into the Special Immigration Appeals Commission Act 1997, including section 2 D, under which certified naturalisation decisions may be challenged in SIAC. SIAC applies judicial-review principles and has the remedies available in judicial review. The Court of Appeal’s decision in R (Ignaoua) v SSHD [2013] EWCA Civ 1498, [2014] 1 All ER 649, established that certification did not itself terminate existing judicial review proceedings or appeals. The court therefore had to decide whether those proceedings should continue or be stayed.
3. Alternative remedy. The appellants’ proposed wait-and-see approach was wrong in principle. The availability of an effective SIAC procedure meant that they should pursue that remedy expeditiously if they intended to use it. Pursuing both routes would cause delay and waste court resources. They remained entitled to forgo SIAC and limit themselves to judicial review.
4. Public interest immunity. The availability of a closed material procedure in SIAC changed the legal landscape. It was relevant to the public-interest balance in the judicial review proceedings and reduced the public interest in further disclosure through the ordinary PII process. The challenge to the earlier PII approach had consequently become academic or was unlikely to secure greater disclosure.
5. Convention issues. The level of disclosure required by article 8 is highly context-dependent. The correctness of R (BB) v Secretary of State for the Home Department [2012] EWCA Civ 1499, [2013] 1 WLR 1568, should be considered if the issue arose in an actual SIAC determination, not through an advisory ruling in a different judicial-review context. SIAC would have to make its own findings on articles 8, 9 and 10, based on both open and closed material, including any effect on proportionality.
6. The position could be reviewed after SIAC’s determinations. If the appellants succeeded there, the appeals would become academic; if they failed, the court could then assess whether any issue remained worth pursuing.

1. Court of Appeal (Civil Division): In [2014] EWCA Civ 151, Lord Justice Richards continued the stays of four appeals pending the appellants’ SIAC applications or further order.
2. Administrative Court: Ouseley J, in [2012] EWHC 1117 (Admin), held that no closed material procedure was available in the judicial review proceedings apart from the PII process and upheld the PII certificates. In [2013] EWHC 1426 (Admin), he rejected further disclosure arguments and dismissed the claims, including FM’s substantive claim.