The case of Alo & Ors, R. (On the Application Of) v Secretary of State for the Home Department [2022] EWHC 2380 involved a judicial review claim brought by a family of Afghan nationals against the Secretary of State for the Home Department's decisions to refuse their applications for entry clearance under the Immigration Rules. In a rolled-up hearing, Swift J granted the Claimants permission to apply for judicial review on the four grounds advanced and allowed their claim, remitting their applications to the Secretary of State for further consideration.
The First Claimant is an Afghan national who had worked as an interpreter for the British military in Afghanistan. The Second Claimant is his wife and the remaining Claimants are their children. The Claimants made an application under the Afghan Relocation and Assistance Policy and were informed that they were eligible for relocation to the United Kingdom, provided they met the requirements of paragraph 276BA1 of the Immigration Rules requiring them to apply for, and obtain entry clearance prior to their arrival. In turn, that was on the proviso that their applications did not fall for refusal under the grounds of refusal contained in Part 9 of the Rules.
The Claimants applied for entry clearance under the Rules on 2 June 2021. The First Claimant applied on the basis he was a "relevant Afghan citizen" and the remaining Claimants applied as his dependants. Their applications were refused on 30 July 2021 under paragraph 9.3.1. of the Rules, on the basis that the First Claimant's presence in the UK had been assessed as not conducive to the public good on grounds of national security due to his conduct, character and associations. The remaining Claimants' applications were refused in line with the application of the First Claimant.
The Claimants challenged these refusals by way of judicial review proceedings. These proceedings were withdrawn on account of the Secretary of State's agreement to withdraw the 30 July 2021 decisions and reconsider the visa applications. On 10 November 2021 the Secretary of State issued further decisions refusing the applications for entry clearance. The First Claimant's decision confirmed that a reconsideration had been undertaken, taking into account all the information available to the Secretary of State, including representations the First Claimant had put forth in witness statements, and proceeded to refuse the application on the same basis as the 30 July 2021 decision. The remaining Claimants' applications were again refused in line with that of the First Claimant.
The Claimants issued judicial review proceedings against the new refusals, advancing originally eight grounds of challenge, of which only the first four were pursued at the beginning of the rolled-up hearing. The proceedings were conducted using the closed material procedure under Part 2 of the Justice and Security Act 2013, in view of the Secretary of State's contention that her defence to the claim would require disclosure of information which, if disclosed, would damage the interests of national security. As such, Special Advocates were appointed, who had regard to the closed material and attended the part of the hearing conducted in private, in the absence of the Claimants and their representatives. Part of the reasoning of the judgement was also not made public and was provided only to the Secretary of State and the Special Advocates in order to prevent the disclosure of sensitive material.
Swift J opted to consider the four extant grounds of challenge out of the order in which they had been pleaded, as the second ground concerned the evidential premise of the judicial review proceedings themselves, which, were the ground to succeed, would need to be reconsidered before the other three grounds could be considered. The fourth ground went to the substance of the decisions and therefore would be considered second. The first and third grounds concerned the fairness of the process followed by the Secretary of State when making the decisions under challenge, and would be considered last.
Held
Ground 2 – The failure to give reasons renders it impossible to conduct these proceedings so as to meet the requirements of the ECHR article 6
The Claimants submitted that the First Claimant should be provided with sufficient information about the allegations made against him to enable him to give effective instructions to his lawyer and the Special Advocate in respect of these allegations. This was on that basis that Article 6 ECHR imposed minimum requirements for disclosure to a claimant that could not be satisfied by disclosure only to a Special Advocate.
Swift J, agreeing with the Secretary of State's defence to this ground, concluded that the protective scope of Article 6 was not engaged, as decisions regarding the entry, state and deportation of aliens do not concern the determination of an applicant's civil rights or obligations, or a criminal charge against him, within the meaning of the article. This was confirmed by the ECtHR in Maaouia v France (2001) 33 EHRR 42. As such, this ground failed.
Ground 4 – Secretary of State's assessment of the not conducive to the public good issue was flawed as it did not rest on sufficient/rational enquiry, and/or consideration of only relevant matters, and/or was irrational
Swift J acknowledged that the Claimants' submission on this ground rested on the open material (which was limited). The First Claimant had made two witness statements in support of his challenge to the Secretary of State's first refusal, which pre-dated the second decision, under challenge in these proceedings, and were considered by the Secretary of State in reaching that decision. In those, the First Claimant explained what he believed to be the reason he had been placed on a US watchlist, namely his family connections with individuals linked with the Taliban, and that he had later been removed from the watchlist. He also referred to matters in support of his contention that he was not linked to the Taliban. The First Claimant also relied on two letters of support from members of the US army. Swift J also granted leave to the Claimants' to adduce an expert report at the hearing, and to the Secretary of State to adduce a statement by a senior Home Office official and its exhibits that were filed after the hearing.
Upon considering both the open and closed evidence, Swift J concluded that the Claimants succeeded on ground 4. He was satisfied that the steps taken by the Secretary of State were not sufficient to discharge the Tameside duty to take reasonable steps with a view to ensuring the factual basis for her decision was sufficient. The reasons for this conclusion were given in the closed part of this judgement, as they required reference to the closed evidence.
Ground 1 – Failure to give reasons. Ground 3 – No "minded to" process
With regard to the first ground, the failure to give reasons, Swift J did not accept the Secretary of State's submissions that firstly, the reason for the decision had been given, and secondly, that in the present case the common law only required disclosure of reasons and information insofar as consistent with the provisions of the Justice and Security Act 2013, in reliance on the decision in Kamoka v The Security Services [2015] EWHC 3307. Swift J considered that the Secretary of State had given a generic reason and had made no attempt to set out the matters that were most material to the decision or to indicate how the "not conducive to the public good" reason applied to the First Claimant. Further, he considered that Kamoka did not concern the common law requirements for fair decision making, as the 2013 Act does not apply at the stage a decision is taken, which is when the duty to give reasons arises.
Nonetheless, Swift J concluded that the requirements of common law fairness, and their underlying policy objective, are not absolute and can need to be balanced against competing considerations. He found that such considerations did exist in this case and it was on the basis of those that the reasons for the refusals had remained confidential and the judicial review proceedings were ordered to be conducted using a closed material procedure. Swift J found that the requirements of fairness were overridden by these considerations and therefore the failure to give reasons, itself assumed to be a requirement of fairness, had not been unlawful.
For the same reasons, Swift J concluded that it was not procedurally unfair to deprive the Claimants of a "minded to" process, namely to give them notice of a proposed decision, in order to permit them to make representations in support of their case prior to the decision being reached. Swift J held that disclosure of the nature of the evidence on which the First Claimant's refusal was based would have risked damage to the interests of national security and that the requirements of common law fairness to follow a "minded to" process were outweighed by that consideration.
In view of the fact that one of the Claimants' grounds was successful, their judicial review claim was allowed and the Court granted them relief by remitting their applications for entry clearance to the Secretary of State for reconsideration.
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