Secretary of State for the Home Department v AHK & Ors [2009] EWCA Civ 287 (02 April 2009)

Secretary of State for the Home Department v AHK & Ors [2009] EWCA Civ 287 (02 April 2009)

A special advocate should be appointed where it is just to do so, having regard to the requirement that the proceedings must be fair to both the claimant and the Secretary of State. The judge may review closed material before deciding whether to appoint a special advocate, but must not receive submissions from the Secretary of State in the absence of the claimant or a special advocate. The appointment of a special advocate is not automatic and is a matter of judicial discretion, to be exercised only where necessary for fairness.

Citation
[2009] EWCA Civ 287
Parties
Appellant/defendant: The Secretary of State for the Home Department; Respondent/claimant: AHK; Respondent/claimant: GA; Respondent/claimant: AS; Respondent/claimant: MH; Respondent/claimant: FT; Respondent/claimant: NT; Appellant/claimant: FM
Jurisdiction
England and Wales
Judgment Date
02 April 2009
Procedural Posture
Appeal (judicial Review) / Court of Appeal (civil Division) Judgment on Procedural Directions
Outcome
Appeals allowed in part; procedural guidance issued.
Legal Topics
Judicial Review, Special Advocates, Disclosure, Public Interest Immunity, British Nationality, Procedural Fairness
Administrative Law Immigration Law Human Rights Judicial Review Special Advocates Disclosure Public Interest Immunity British Nationality +1 more

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Parties

The Secretary of State for the Home Department

Appellant/defendant

AHK

Respondent/claimant

GA

Respondent/claimant

AS

Respondent/claimant

MH

Respondent/claimant

FT

Respondent/claimant

NT

Respondent/claimant

FM

Appellant/claimant

Procedural Posture

Appeal (judicial Review) / Court of Appeal (civil Division) Judgment on Procedural Directions

Legal Issues

  1. 1 When should a court appoint a special advocate in judicial review of refusal of British citizenship on public interest grounds?
  2. 2 Is it permissible for a judge to review closed material before deciding on the appointment of a special advocate?
  3. 3 What procedural safeguards are required for fairness in such cases?

Ratio Decidendi

A special advocate should be appointed where it is just to do so, having regard to the requirement that the proceedings must be fair to both the claimant and the Secretary of State. The judge may review closed material before deciding whether to appoint a special advocate, but must not receive submissions from the Secretary of State in the absence of the claimant or a special advocate. The appointment of a special advocate is not automatic and is a matter of judicial discretion, to be exercised only where necessary for fairness.

Court Disposition

Appeals allowed in part; procedural guidance issued.

Orders

  • Set aside the judge's blanket direction to appoint special advocates in all cases.
  • Substitute procedural guidance for future cases as set out in the judgment.