Closed Material Procedures In Immigration Cases

• Published date: 03 April 2023
• Subject Matter: Government, Public Sector, Immigration, Terrorism, Homeland Security & Defence, Human Rights, General Immigration
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Mr Thomas Hill

When an individual challenges a decision made by a public body (as happens in immigration cases), it is generally considered a fundamental feature of natural justice and fairness that they must be shown the evidence relied on by the decision-maker. In the words of Lord Denning:

"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them [...] It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other."

Yet there are cases where this principle - important as it may be - throws up difficulties. Government decisions are often made on the basis of highly sensitive information which, if revealed in open court or even just disclosed to the individual affected, are deemed to pose a serious threat to national security or the safety of others.

Parliament and the courts have developed a range of legal mechanisms for handling these situations. In this article we will consider some of these mechanisms and how they may be relevant in an immigration context.

Where might the Home Office want to withhold evidence in immigration cases?

There are a number of provisions in UK immigration and nationality law that require the Home Office to take into account an individual's background, circumstances, character, associations and so on. To take a few examples:

• Rule 9.3.1. of the Immigration Rules provides that an application for entry clearance, permission to enter or permission to stay "must be refused where the applicant's presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons [...]";
• Rule 9.3.2. provides that entry clearance or permission held by a person "must be cancelled where the person's presence in the UK is not conducive to the public good";
• Schedule 1, paragraph 1(1)(c) of the British Nationality Act 1981 requires that a person applying to naturalise as a citizen must be "of good character";
• Section 40(2) of the British Nationality Act 1981 empowers the Home Secretary to deprive a person of their British citizenship if she is satisfied that to do so "is conducive to the public good".

In assessing an individual for the purpose of one of these...