Home Secretary’s decision to refuse British Citizenship results in a High Court challenge and legal fight over ‘secret justice’
The Home Secretary Theresa May has refused to tell a significant number of migrants including refugees why they have been refused British Citizenship. Ms May had declared that the unsuccessful applicant’s were not of good character, but she could not give additional reasons because of ‘national security’ considerations.
It appears that about 100 applicants are seeking to challenge the Home Secretary’ decision by way of judicial review in the High Court and claim damages and a declaration that the decision breaches the rules of natural justice.
The applicants shall be seeking for a ruling that a decision to refuse them naturalisation under the British Nationality Act 1981 without adequate reasons were legally flawed and breached their human rights.
The Secretary of State had indicated that applicants were refused because “there was reason to believe” that they made “extremist” Islamic statements to others or acted in a way that threatened national security.
The applicant’s argue in their claim for judicial review that they are being denied the fundamental “right to know” of the evidence against them so they can rebut this. Before the cases can be heard in the High Court in London, a hugely controversial preliminary issue needs to be resolved.
This amounts to whether the Government can apply a “Closed” procedure to battle the pending legal High Court challenge. James Eadie QC representing the Home Secretary argued that the closed material procedure (CMP) should be applied at pending hearings. Lawyers for the applicants argue that the CMP would undermine the fundamental principles of natural justice and fairness.
Lawyers for the applicant’s argue that a more traditional approach should be followed where security sensitive materials are kept confidential, they contend this to be fairer under the “public interest immunity procedure” (PII). Under the PII the presiding Judge would decide what materials should be disclosed openly and what remains confidential to protect national security interests.
Crucial to the arguments of both sides, the lawyers for the applicant’s argued that the Al Rawi case ruling should be followed. In Al Rawi a case involving a Guantanamo Bay detainee, the government sought to apply the CMP procedure to rebut human rights abuse claims for damages. The Supreme Court ruled that there was no statutory authority for CMP and it was not followed.
Mr Eadie QC for the Home Secretary argues that that the judicial review claim in question is a different situation from that of Al Rawi, which alleged rendition, detention and mistreatment. Lawyers for the applicant’s argue that the Home Secretary had failed in her public law duty to provide adequate reasons to the applicant’s and give them a fair opportunity to challenge the decision at the High Court. If CMP were applied, applicants could lose their case and never know why.