Human rights – Contractual rights – Closed material – Visas

Murungaru v Secretary of State for the Home Department & ors: CA (Civ Div) (Lords Justice Sedley, Jacob, Mr Justice Lewison): 12 September 2008.

The appellant secretary of state appealed against a decision to invite the Attorney General to appoint a special advocate to deal with the closed material on which the secretary of state had relied in revoking the visa of the respondent (M).

M was a Kenyan government minister whose multiple-entry visa for the UK had been revoked without notice and without giving reasons about three months after it had been granted. Wanting to return to the UK for continuing medical treatment, M brought judicial review proceedings, asserting an entitlement to notice of the proposed action and to reasons for the decision, and that there had been a breach of his right under article 6 of the European Convention on Human Rights to a fair hearing of his claim for violation of his right under article 1 of Protocol 1 of the Convention to peaceful enjoyment of his possessions, namely his contractual right to receive private medical treatment in the UK.

The secretary of state issued a public interest immunity certificate in relation to the material (‘the closed material’) which had satisfied him that it was contrary to the public interest to allow M to re-enter the UK. M argued that there was no need to examine the closed material to adjudicate on the asserted denials of due process. Nor did the secretary of state invite that course: his submission was that there had been too little time to give the claimant advance notice.

Mr Justice Keith concluded that he could not determine the Convention rights issue or the procedural challenges without examining the closed material and adjourned the matter. It was restored before Mr Justice Mitting, who decided that the Attorney General should be invited to appoint a special advocate to deal with the closed material.

The secretary of state argued that there was no viable claim under article 6 of the convention and that the procedural fairness issue did not require the court to look at the closed material.

Held: (1) A challenge to immigration controls could not be disguised as an assertion of property rights, Ilic v Croatia (Admissibility) (42389/98) (2000) 30 EHRR CD161 ECHR considered. Assuming that the withdrawal of M’s visa was an interference with the enjoyment of his possessions, the challenge to it was, in reality, a challenge to the withdrawal of the visa. The secretary of state had formed the view that it was contrary to the public interest to let M enter the UK. If, fortuitously, that had interrupted a course of medical treatment, then it was open to the secretary of state to waive the prohibition. But there was no hint that that was the purpose of the ban, and it did not enable M to treat the withdrawal of his visa as anything but an immigration decision.

(2) Mr Justice Keith had been entitled to find that the case could not be decided without an inspection of the closed material, but it did not follow that a special advocate was required. Although he had no viable convention claim, M still had a viable claim at common law for judicial review of the withdrawal of his visa. Applying the principles which ought to govern requests for a special advocate in proceedings of the present kind, the material covered by the public interest immunity certificate did not warrant the appointment of a special advocate. There was no reason to think that the judge, in what had become purely a common law due process claim, could not do what a special advocate might otherwise do by way of critical examination of the closed material in the claimant’s absence, assuming that the material turned out to have any useful bearing at all. The request for appointment of a special advocate was quashed and the case remitted for hearing.

(3) (Obiter) The jurisprudence of the European Court of Human Rights established that the mere fact that rights were contractual did not disqualify them from counting as property or possessions. There was no necessary coincidence between the autonomous Convention concept of property or possessions and the domestic concept of property. However, a claim justiciable in domestic law could amount to a possession for the purposes of article 1 of Protocol 1 only if it was sufficiently established to be enforceable.

In the present case, M’s contractual rights had none of the indicia of possessions. They were intangible; they were not assignable; they were not even transmissible; they were not realisable and they had no economic value. They could not realistically be described as an asset, which was the touchstone of whether something counted as a possession for the purposes of article 1 of Protocol 1.

Appeal allowed.

R Singh QC, T Hetherington (instructed by Leigh Day & Co) for the appellant; J Crow QC, L Giovannetti (instructed by the Treasury Solicitor) for the respondent.