GA v Secretary of State for the Home Department

Factual and Procedural Background

This appeal arises from the refusal by the Respondent Secretary of State to grant naturalisation to the Appellant. The refusal was ultimately based on alleged association with extremists, a ground disclosed to the Appellant only at a late stage after he had applied to the Special Immigration Appeals Commission ("SIAC") for a review. SIAC found procedural unfairness in the handling of the application but declined relief on the basis that the outcome would have been the same regardless. The Appellant was granted permission to appeal to this Court, seeking an order for reconsideration of his naturalisation application with an opportunity to submit further evidence and representations.

The Appellant, born in Algeria in 1969, first entered the United Kingdom in 2000 and claimed asylum, which was refused. He later married an EU national and was convicted in 2002 of possessing a false instrument, sentenced to 16 months' imprisonment. He was granted permanent residence and indefinite leave to remain in 2005. The Appellant made his first naturalisation application in 2012 but did not disclose his conviction, believing it to be spent. The Respondent refused the application in 2015, citing failure to meet the good character requirement due to the undisclosed conviction.

Subsequent correspondence between the Appellant's solicitors and the Respondent involved disputes over the application of policy regarding spent convictions and delays in reconsideration. In 2017, the Respondent refused the application again, citing failure to meet the good character requirement but without reference to earlier complaints. The Appellant applied to SIAC for a review, during which a Rule 38 hearing allowed for limited disclosure and representation in closed session. It was then revealed that the refusal was based on the Appellant's alleged past association with Islamist extremists, supported by previously unpublished guidance.

Before SIAC, the Appellant advanced grounds relating to procedural fairness and reliance on an unlawful unpublished policy. SIAC acknowledged procedural unfairness and errors in the Respondent's handling but ultimately dismissed the review, concluding that the outcome would inevitably have been the same.

Legal Issues Presented

1. Whether the procedural unfairness found by SIAC entitled the Appellant to relief, or whether the outcome of the naturalisation decision would inevitably have been the same absent that unfairness.
2. Whether SIAC erred in principle by substituting its own decision for that of the Secretary of State in applying the inevitability test.
3. Whether the Respondent lawfully exercised discretion under section 6(1) of the British Nationality Act 1981 in refusing naturalisation.

Arguments of the Parties

Appellant's Arguments

• The statutory discretion to grant naturalisation lies exclusively with the Secretary of State and is not limited to the statutory criteria alone.
• SIAC's powers on reconsideration are limited, especially regarding investigation of new facts, and it is unlikely to have had all relevant material to assess inevitability accurately.
• The procedural unfairness was significant, and SIAC erred in applying the inevitability test itself rather than ordering reconsideration.
• The Commission wrongly assumed the only material before the Secretary of State would be the Appellant's witness statement, ignoring other potential evidence or representations.

Respondent's Arguments

• Naturalisation is a privilege, not a right, and the Secretary of State has broad discretion to refuse applications on good character grounds.
• The courts and SIAC may refuse relief if satisfied that the outcome would inevitably have been the same despite any error, with the burden on the public body to prove inevitability.
• Appellate courts should be slow to interfere with SIAC's discretion unless there is an error of principle or an unreasonable conclusion.
• SIAC properly applied the "inevitable outcome" test and was justified in refusing relief because any further submissions by the Appellant would not have changed the outcome.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged the well-established legal framework governing naturalisation under section 6(1) of the British Nationality Act 1981, which vests discretion exclusively in the Secretary of State. It recognized that SIAC's role is to apply judicial review principles when reviewing decisions certified for national security reasons, including the application of the "inevitable outcome" test for relief.

While SIAC found procedural unfairness in the Respondent's failure to disclose the true basis for refusal earlier, it concluded that the outcome would inevitably have been the same. The Court, however, found that SIAC erred in principle by substituting its own view on the merits of the naturalisation decision rather than remitting the matter for reconsideration. The Court noted the limited procedural powers of SIAC, the constraints on Special Advocates in closed sessions, and the complexity of the evidence, which made the inevitability conclusion not reasonably open.

The Court emphasized the importance of respecting the statutory discretion of the Secretary of State and the limited investigatory role of SIAC, especially when dealing with closed material. It concluded that the decision to refuse relief on the basis of inevitability was premature and that the Appellant must be given an opportunity to make further representations in a fairer process.

Holding and Implications

The Court ALLOWED THE APPEAL, quashing SIAC's dismissal of the review and remitting the matter to the Respondent Secretary of State for reconsideration of the naturalisation application. The reconsideration must be conducted on the basis of all the evidence, including that submitted by the Appellant, as of the date of the fresh decision.

The direct effect is that the Appellant will have another opportunity to have his naturalisation application fairly reconsidered with full disclosure and opportunity to respond. The Court did not establish new legal precedent but clarified the proper application of the inevitability test and the limits of SIAC's discretion in such cases.