ALO & Ors, R (on the application of) v Secretary of State for the Home Department

Entry-clearance decisions do not determine civil rights or obligations and therefore fall outside article 6 of the European Convention on Human Rights. Eligibility under a relocation policy does not alter that character.

The common-law duty to give reasons may yield where fuller reasons would disclose information damaging to national security. A prior opportunity to make representations is required only where it would be effective, which generally requires sufficient disclosure of the matters relied on.

The Tameside duty requires reasonable inquiry, not exhaustive investigation. A challenge succeeds only where the failure to inquire was both obvious and material.

The claimants, an Afghan former interpreter for British forces and his family, were accepted as eligible for relocation under the Afghan Relocation and Assistance Policy. Their applications for entry clearance were nevertheless refused under paragraphs 276BC1 and 9.3.1 of the Immigration Rules because the first claimant’s presence was considered not conducive to the public good on national-security grounds.

After an earlier set of decisions was withdrawn and reconsidered, the claimants challenged the new decisions. They alleged inadequate reasons, breach of article 6, procedural unfairness because there had been no minded-to stage, and irrationality or inadequate inquiry. The proceedings used the closed material procedure under Part 2 of the Justice and Security Act 2013.

1. Article 6. The claimants’ applications concerned permission to enter the United Kingdom. Following Maaouia v France (2001) 33 EHRR 42, decisions concerning entry, stay and deportation do not determine civil rights or obligations for article 6 purposes. MN v Belgium was consistent with that conclusion. The prior ARAP eligibility decision did not change the nature of the decisions under challenge. The claim based on AF (No 3) therefore failed, and it was unnecessary to decide the separate jurisdictional and coercive-measure arguments.
2. National-security assessment. The Secretary of State’s inquiry failed the Tameside standard: Secretary of State for Education and Science v Tameside MBC [1977] AC 1014. The duty is to take reasonable steps to ensure a sufficient factual basis. It does not require exhaustive inquiry, and the court must not substitute its own assessment. A claimant succeeds only where the failure is obvious and material. That threshold was met on the closed evidence. Ground 4 succeeded.
3. Reasons. The court assumed that fairness generally required reasons for decisions under the Immigration Rules. The bare reference to the non-conducive ground did not identify the particulars relied upon. Nevertheless, the policy favouring reasoned decisions was not absolute. Where fuller reasons would disclose information damaging to national security, confidentiality could justify withholding them. Ground 1 therefore failed.
4. Minded-to procedure. There was no statutory requirement for such a process. Any common-law requirement presupposed an effective opportunity to respond, including sufficient understanding of the proposed reasons. Disclosure of the relevant intelligence would have endangered national security. Ground 3 failed. The claimants obtained permission on Grounds 1 to 4, succeeded on Ground 4, and the applications were remitted to the Secretary of State for further consideration.