Law Report: Minister acted unfairly towards the Fayeds

LAW REPORT: 19 November 1996

R v Secretary of State for the Home Department, ex parte Fayed and another; Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Kennedy, Lord Justice Phillips) 13 November 1996

The provision in section 44(2) of the British Nationality Act 1981, that the Home Secretary was not required to give reasons for refusing an application for British citizenship, did not relieve him of the obligation to be fair. Fairness dictated that, while he need not give reasons for his decision, he ought in some circumstances to inform the applicant beforehand of any matters weighing against the grant of naturalisation, so the applicant could address him on those matters.

The Court of Appeal by a majority (Lord Justice Kennedy dissenting) allowed an appeal by Mohammed and Ali al-Fayed, reversed the decision of Mr Justice Judge, and quashed the Home Secretary's refusal to grant them British citizenship. The Home Secretary must now reconsider their applications.

The 1981 Act provided by section 6 that the Home Secretary "may, if he thinks fit," grant an applicant who "fulfils the requirements of Schedule 1" for a certificate of naturalisation. Among the requirements in Schedule 1 was "that he is of good character". By section 44(2):

The Secretary of State . . . shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion; and [his] decision . . . shall not be subject to appeal to, or review in, any court.

Both Fayed brothers were born in Egypt but had lived in the UK since the 1960s and had been granted indefinite leave to remain. Mohammed was married to a Finnish citizen but his children were British citizens; Ali's wife and children were all British citizens. Both brothers had substantial business interests in the UK and were resident for tax purposes.

In February 1993 Ali applied for naturalisation as a British citizen under the 1981 Act. Mohammed applied in February 1994. After long delays, during which the Home Secretary stated publicly that the applications were regarded as "especially difficult or sensitive", the applications were both refused in February 1995. No reasons were given and their request for reasons was refused.

Michael Beloff QC and Rabinder Singh (D.J. Freeman & Co) for Mohammed al-Fayed; M. Beloff QC and Mark Shaw (Palmer Cowen) for Ali al-Fayed; Stephen Richards and Stuart Catchpole (Treasury Solicitor) for the respondent.

Lord Woolf MR said neither of the applicants had ever been told what aspects of their applications had given rise to difficulties or reservations. Without information as to this it would be impossible for them to volunteer information to support their applications.

The refusal of their applications was damaging to their reputations, and deprived them of the substantial benefits of citizenship. The minister's decisions were therefore classically ones which, but for section 44(2), would involve an obligation on him to give the applicants an opportunity to be heard before the decision was reached.

The fact that the minister might refuse an application because he was not satisfied that the applicant fulfilled the rather nebulous requirement of good character or "if he thinks fit" underlined the need for an obligation of fairness.

The provision in section 44(2) that his decision was not subject to appeal or review did not relieve the minister of his obligation to be fair, nor deprive the court of its power to ensure the needs of fairness were met.

His Lordship rejected the submission that the prohibition in section 44(2) on the minister being required to give reasons impliedly excluded any requirement to give the applicants the notice which fairness dictated they needed to make an application.

Justice must not only be done but must be seen to be done and it had not been seen to be done in relation to the Fayeds' application. The minister's decisions must be quashed so they could be retaken in a manner which was fair.

Paul Magrath, Barrister

Start your day with The Independent, sign up for daily news emails
PROMOTED VIDEO
ebooks
ebooksA year of political gossip, levity and intrigue from the sharpest pen in Westminster
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Recruitment Genius: HR Manager

£25000 - £30000 per annum: Recruitment Genius: They are in need of a HR Manage...

h2 Recruit Ltd: Business Development Manager - HR Consultancy - £65,000 OTE

£35000 - £40000 per annum + £65,000 OTE: h2 Recruit Ltd: London, Birmingham, M...

Day In a Page

The week Hollywood got scared and had to grow up a bit

The week Hollywood got scared and had to grow up a bit

Sony suffered a chorus of disapproval after it withdrew 'The Interview', but it's not too late for it to take a stand, says Joan Smith
From Widow Twankey to Mother Goose, how do the men who play panto dames get themselves ready for the performance of a lifetime?

Panto dames: before and after

From Widow Twankey to Mother Goose, how do the men who play panto dames get themselves ready for the performance of a lifetime?
Thirties murder mystery novel is surprise runaway Christmas hit

Thirties murder mystery novel is surprise runaway Christmas hit

Booksellers say readers are turning away from dark modern thrillers and back to the golden age of crime writing
Anne-Marie Huby: 'Charities deserve the best,' says founder of JustGiving

Anne-Marie Huby: 'Charities deserve the best'

Ten million of us have used the JustGiving website to donate to good causes. Its co-founder says that being dynamic is as important as being kind
The botanist who hunts for giant trees at Kew Gardens

The man who hunts giants

A Kew Gardens botanist has found 25 new large tree species - and he's sure there are more out there
The 12 ways of Christmas: Spare a thought for those who will be working to keep others safe during the festive season

The 12 ways of Christmas

We speak to a dozen people who will be working to keep others safe, happy and healthy over the holidays
Birdwatching men have a lot in common with their feathered friends, new study shows

The male exhibits strange behaviour

A new study shows that birdwatching men have a lot in common with their feathered friends...
Diaries of Evelyn Waugh, Virginia Woolf and Noël Coward reveal how they coped with the December blues

Famous diaries: Christmas week in history

Noël Coward parties into the night, Alan Clark bemoans the cost of servants, Evelyn Waugh ponders his drinking…
From noble to narky, the fall of the open letter

From noble to narky, the fall of the open letter

The great tradition of St Paul and Zola reached its nadir with a hungry worker's rant to Russell Brand, says DJ Taylor
A Christmas ghost story by Alison Moore: A prodigal daughter has a breakthrough

A Christmas ghost story by Alison Moore

The story was published earlier this month in 'Poor Souls' Light: Seven Curious Tales'
Marian Keyes: The author on her pre-approved Christmas, true love's parking implications and living in the moment

Marian Keyes

The author on her pre-approved Christmas, true love's parking implications and living in the moment
Bill Granger recipes: Our chef creates an Italian-inspired fish feast for Christmas Eve

Bill Granger's Christmas Eve fish feast

Bill's Italian friends introduced him to the Roman Catholic custom of a lavish fish supper on Christmas Eve. Here, he gives the tradition his own spin…
Liverpool vs Arsenal: Brendan Rodgers is fighting for his reputation

Rodgers fights for his reputation

Liverpool manager tries to stay on his feet despite waves of criticism
Amir Khan: 'The Taliban can threaten me but I must speak out... innocent kids, killed over nothing. It’s sick in the mind'

Amir Khan attacks the Taliban

'They can threaten me but I must speak out... innocent kids, killed over nothing. It’s sick in the mind'
Michael Calvin: Sepp Blatter is my man of the year in sport. Bring on 2015, quick

Michael Calvin's Last Word

Sepp Blatter is my man of the year in sport. Bring on 2015, quick