Fayed, R (on the application of) v Secretary Of State For Home Department [1996] EWCA Civ 946
Citation:Fayed, R (on the application of) v Secretary Of State For Home Department [1996] EWCA Civ 946
Rule of thumb:If a British citizenship application is refused, do reasons have to be provided? No, however, there has to be detailed criteria & procedural propriety to allow people to make their case properly, and there also has to be caution exercised to protect the identities of the people who apply for this in case they are rejected.
Judgment:
The basic facts of this case were that the Al Fayed brothers, Mohammed and Ali, had applied for naturalisation as British citizens. Both had been born in Egypt but were residents in the UK and had been granted indefinite leave to remain in the UK for life, and they both had children who were British citizens. The British Nationality Act stated that immigrants had to be considered to be of ‘good character’ in order to be granted naturalisation as a British citizen. The Al Fayed brothers’ application was refused and they were not told the reasons – the Home Secretary relied on the British Nationality Act to argue that this Act expressly said that no reasons had to be given for why applications had been refused. There was also no general duty under the common law for decision makers to provide reasons for decisions. The Court held that whilst exact reasons did not strictly have to be given for why naturalisation applications were refused, this did not remove the general principle of procedural impropriety being unlawful and the corresponding need for decision makers to be fair. The Court held that where no specific reasons were given then a clear to applicants, then procedural propriety required there to be a thorough application form provided, which the Court held in this case had not been done in the applications for naturalisation as a British citizen. The Court held that this was particularly so in cases like this where there was the risk of damage to reputation, like this procedure brought. The Court held that it is not only for decision makers to be fair, but they also need to be seen to be fair. The Court quashed the decision of the Home Secretary to refuse the application, and ordered detailed criteria to be provided, and the new and adjusted application to then be reheard.
Ratio-decidendi:
‘On an application for judicial review there is usually no discovery because discovery should be unnecessary because it is the obligation of the respondent public body in its evidence to make frank disclosure to the court of the decision making process. ( R v Civil Appeal Board ex parte Cunningham [1992]ICR 816 ). If it does not then usually this would be a reason for the court ordering discovery. However, if the giving of notice cannot be required, then for the same reasons it is said the respondent cannot be required to exercise the usual "cards up approach" and what is more discovery cannot be required either since this would be open to the same objection that it could result in the identification of reasons... It is obvious that the refusal of their application has damaging implications for the Fayeds. This is a matter which is for them, because of their high public profile, of particular significance. The damage is the greater because it is not in dispute that they comply with the formal requirements other than that of good character the relevance of which to the refusal is not known. Apart from the damaging effect on their reputation of having their application refused the refusal has deprived them of the benefits of citizenship. The benefits are substantial. Besides the intangible benefit of being a citizen of a country which is their and their families' home, there are the tangible benefits which include freedom from immigration control, citizenship of the European Union and the rights which accompany that citizenship, the right to vote and the right to stand in Parliamentary elections. The decisions of the Minister are therefore classically ones which but for section 44(2) would involve an obligation on the Minister making the decision to give the Fayeds an opportunity to be heard before that decision was reached’. (Lord Woolf)
Lord Woolf MR: “As the minister has a discretion to give the applicant notice of an area of concern, that discretion must itself be exercised reasonably. If not to give notice would result in unfairness then the discretion can only reasonably be exercised by giving notice.”
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.