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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Al -Fayed, (R. on the Application of) v Secretary of State for the Home Department (No. 2)  EWCA Civ 523 (26 July 2000)
Cite as:  Imm AR 134,  EWCA Civ 523
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(Mr Justice Ognall)
B e f o r e :
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE KENNEDY and
LORD JUSTICE RIX
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT|
|ex parte MOHAMED ABDEL MONEIM ALI FAYED|
Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr Jonathan Crow and Mr Mark Hoskins (instructed by the Treasury Solicitor, London SW1) appeared on behalf of the Respondent.
Crown Copyright ©
"If, on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen."
". . . . the requirements for naturalisation as a British citizen under section 6(1) are, in the case of any person who applies for it
. . . .
(b)that he is of good character."
"Harrods owner Mohamed Al Fayed has lost his long battle to become a British citizen.
Home Secretary Jack Straw has told friends that the Egyptian-born businessman's payment to Tory MPs in return for tabling Commons questions should bar him from securing a British passport.
'I just don't see how he can have citizenship if he paid MPs,' confided Mr Straw, who will take personal control of the citizenship application."
" 'It is being conducted in a scrupulously fair way,' said a Home Office spokesman. 'Officials have been given a clear message. Bring back recommendations on the basis of facts alone.'
The report has yet to arrive on Mr Straw's desk . . ."
"We are very concerned to see that it appears from the article that the Home Secretary has taken a decision in relation to Mr Al Fayed's application (indeed the Home Secretary is directly quoted in the article) yet the article also suggests that he has also not yet read the papers in relation to either of our clients' applications. Since you have not replied to our previous letters we do not know what position our clients' applications have reached but you will appreciate that it is disappointing, to say the least, that the only way our clients seem to be able to learn of what is happening to their applications is through the press.
We would ask that you clarify urgently the position, in particular whether the Home Secretary has taken such a decision and whether he said the words attributed to him in the article."
"We find it in particular a matter for concern that your letter does not deny that the Home Secretary said the words attributed to him in the Sunday Express on 6th September."
"I stressed to Mr Walmsley that I thought that deferral of Mohamed's application would put Mohamed in a very difficult position. The Home Secretary had said some time ago that he wanted the matter determined expeditiously. Yet all the press comment and speculation and quotes attributed to the Home Secretary were negative and Mr Walmsley would naturally understand if my client felt that the Home Secretary was not favourably disposed in the first place and that he was going to have to wait for yet another year and probably longer to get a determination.
Mr Walmsley said to me that he understood entirely the point I was making; he assured me that the Home Secretary had not seen the detailed papers and although he had been involved to the extent of being asked for his views on the steps to be taken in dealing with the application, he is being particular in not seeing the papers so that he could take a complete view when the file was put before him for decision. Mr Walmsley was sure the Home Secretary had not yet formed a view on the matter (though he was quite careful with his words and I got the impression that he did not know whether the Home Secretary had privately expressed views on the application: he did not say to me that the Home Secretary had never said the words attributed to him in the press a couple of months ago although he would have had plenty of opportunity to do so during this part of the conversation)."
"It is with considerable regret that we now feel obliged to write directly to you in this matter, in consequence of the continuing and inexplicable delay in the determination of our clients' applications which have been outstanding since 29 January 1993 and 15 February 1994 respectively. We do so in the knowledge that in a case of this unusual nature and history, you would be the actual as well as the constitutional decision maker."
"As Mohamed Al Fayed said to you in his letter of 30 July 1998, he and his brother continue to have every confidence that you will determine their applications for citizenship fairly but we hope that you will also appreciate that they cannot allow matters to continue as they stand any longer."
"the first concerns the judgment entered against him and others in the High Court on 5 November 1998 in the proceedings brought against him by Mr Rowland (and after his death by his widow); the second concerns Mr Mohamed Al Fayed's role in the 'cash for questions' affair."
"The context in which our client's application has so far been dealt with is deeply and clearly prejudicial. In particular, the intense press speculation which our client's application has caused and the further frenzy of media comment and speculation following your press release of 11 March 1999 has allowed the media to adjudicate upon our client's application and on the remaining issues in a wholly unfair manner. Were your decision to be reached by a jury we have no doubt that a judge would have withdrawn the case from such jury because of the impossibility of a fair decision being reached. By the same token large sections of the media would be in contempt of Court. Whilst we do not suggest that you are incapable of reaching an unbiased decision, we must earnestly entreat you to be conscious of the risk that you may be, albeit unwittingly, adversely influenced against our client by an often orchestrated and venomous press assault on him."
"On any objective analysis of these points, Mr Al Fayed has done nothing improper and all the evidence supports this. It would be wrong of you to conclude otherwise in the face of this evidence. To do so would be irrational and might suggest you had already made up your mind on the issue. It is to be noted the Sunday Express of 6th September 1998 directly quoted you as saying 'I just don't see how he can have citizenship if he paid MPs'. We have been told that you said these words which were then reported to Andrew Pierce, the author of the article. In our letter of 8th September 1998 we asked Mr Walmsley to confirm whether you had said those words attributed by the Sunday Express to you, but Mr Walmsley has never subsequently denied the point. Despite that, we hope and believe that you will exercise an independent judgment."
"In considering your client's application, the Home Secretary has given considerable weight to his substantial charitable works, his employment of over 3,000 employees in this country, his full and substantial payment of UK taxes and his support rendered to British commercial interests. He has also taken into account your client's compassionate circumstances, particularly the interests of his family.
However, the Home Secretary has also had regard to the circumstances surrounding the judgment entered against your client and others in the High Court on 5th November 1998 in the proceedings brought by Mr Rowland (and after his death by his widow) and your client's role in the events surrounding the safe deposit break-in. In addition, the Home Secretary has taken into account the fact that your client has admitted making payments to, and conferring benefits in kind on, MPs.
As you will be aware, the law requires that the Secretary of State must be satisfied that an applicant meets the requirement in paragraph 1(1)(b) of Schedule 1 to the British Nationality Act 1981 to be of good character. Having considered all of your representations, most recently your letter of 29th March 1999 and its enclosures, the Home Secretary is not so satisfied. As a result, the Home Secretary is unable to grant your client's application under section (1) of that Act."
"In relation to the circumstances leading to the civil judgment against your client, the Home Secretary recognises that there are contradicting versions of events surrounding the break-in of the safe deposit box. For the purposes of reaching his decision, the Home Secretary accepts your client's version of those events. However, the Home Secretary considers that your client's admitted failure to put a stop to the examination of the contents of the box constitutes more than a 'minor blemish' (paragraph 22.2 of your recent letter) on his character. Having regard to your client's overall responsibility for conducting a safe deposit facility, the Home Secretary considers that your client's failure to intervene so as to prevent his staff from continuing their examination of the box was a very serious matter. In his view, your client could and should immediately have put a stop to the events in question as soon as they came to his attention. The Home Secretary regards the fact that he did not do so as illustrating a serious want of probity.
Turning to your client's admitted payments of cash and provision of benefits in kind to MPs, the Home Secretary has considered all the representations put forward on behalf of your client. He notes in particular your client's continuing assertions that he thought that the payments were normal, that he was advised by Mr Greer that this was the proper way in which to combat the campaign launched against him by Mr Rowland and that the MPs themselves actively sought payment.
However, the Home Secretary notes that your client has been resident in this country for many years. As a result he considers that he ought to have known that the making of secret payments to MPs is improper and unethical. Although he would not expect your client to know the detailed rules and regulations of Parliament, in his view it is obvious (and should have been obvious to your client) not only that accepting payments in these circumstances is improper but that the payment of them is improper too. He believes that several factors indicate that you client knew that the payments were improper. These include the manner in which the payments were made (in cash) and the fact that they were made over a period of years from July 1987 to late 1989 but that your client chose not to publicise the fact until 1994. In addition, there are your client's own comments about making the payments, for example, that he found them 'disgusting' (paragraph 2.10 of your recent letter). The Home Secretary finds it hard to reconcile these sentiments with your client's assertions that he did not believe the payments were improper.
For the above reasons, the Home Secretary has decided to reject your client's application for naturalis-ation."
"I consulted the Home Secretary on or around 19 April 1999. I asked him if he had made the comments attributed to him. He told me that he had no recollection whatsoever of making such comments to the Sunday Express . . . or to anyone else. He does not believe that he ever made such comments since he has always been very careful never to comment on individual cases under his consideration. He added that he did not issue any denial to the report because in any event the quotations were hearsay ('has told friends') something accepted by Mr Al Fayed's solicitors . . ., who state only that the words in question were 'reported to Andrew Pierce'.""
"The source also told him that the Home Secretary had not yet read the papers on the application and that it was clear that he had made up his mind on the issue. From his discussion with the source he was absolutely and completely convinced that the Home Secretary did say the words which the source told him; indeed he gained the impression from the source that the Home Secretary had told others apart from the source of his view and it was clear to him that the source was convinced that the Home Secretary had decided on the outcome of Mr Al Fayed's application.
There was absolutely no doubt in his mind after his conversation with the source that the Home Secretary had expressed the view which he wrote in the article and that this was an important story which he wanted to write up."
"(1) The Secretary of State approached or appeared to approach the decision without due impartiality.
(2) The Secretary of State acted unfairly and/or in breach of the applicants' legitimate expectations and/or inconsistently in relying on the first matter, when his adviser (Mr Walmsley) had led the applicant and his representatives to believe that it would not be held against him in connection with his application for naturalisation.
(3) The Secretary of State placed such excessive reliance on the two matters that he breached the principle of proportionality, which is now to be regarded as an independent head of review in English public law.
(4) The Secretary of State's decision was so disproportionate as to be irrational."
"He does not believe that he ever made such comments since he has always been very careful never to comment on individual cases under his consideration. He added that he did not issue any denial to the report because in any event the quotations were hearsay ('has told friends')".
"The complainant cannot blow hot and blow cold; he cannot approbate and then reprobate; he cannot have it both ways."
"My own belief remains that it is not competent to a party to waive the public's apprehension of bias on the part of an official decision-maker."
"my own view is that it is not ordinarily open to a litigant unilaterally to waive an appearance of bias on the part of the judge. This is because the existence and appearance of impartiality on the part of the judiciary belongs not to the litigant alone but to the public at large and the legal system of which the judge is a member."
"With respect, there is force in that view. We ally ourselves with it to the extent that displays of blatant bias, likely to undermine public confidence in the justice system, should not necessarily be capable of private waiver."
"in particular whether the Home secretary has taken such a decision and whether he said the words attributed to him in the article".
"As Mohamed Al Fayed said to you in his letter of 30 July 1998 [before the article], he and his brother continue to have every confidence that you would determine their applications for citizenship fairly..."
"Despite that, we hope and believe that you will exercise an independent judgment."
"My own belief remains that it is not competent to a party to waive the public's apprehension of bias on the part of an official decision-maker(That apprehension exists in the public. It is the public's confidence in its institution, which, notionally, this branch of the law is designed to protect."
"With respect, there is force in that view. We ally ourselves with it to the extent that displays of blatant bias, likely to undermine public confidence in the justice system, should not necessarily be capable of private waiver; while in criminal cases private waiver would not normally be possible at all; but the present is a borderline case not in either of those categories."
"Despite this, we hope and believe that you will exercise an independent judgment."
"9.9 Fairness – for the decision you have to take is a critical one for our client – should have ensured that our client was treated no less favourably than if this matter had been one for judicial determination. Instead and in view of what has been published, our client is very concerned that you may be, albeit unwittingly, adversely influenced against our client. Whilst we do not suggest you are incapable of reaching an unbiased decision, we do suggest that there is now a very substantial risk of prejudice because of the often orchestrated and venomous press assault on our client, and it will be difficult in the extreme for you to disregard the media comment. That is unfair to our client, especially when the media comment is almost entirely due to the way this application has been handled by you and your officials."
"10. Regrettably, in consequence of these matters, our client has not had the fairness to which he is entitled. For this reason alone you should now grant our client his citizenship. In any event, the further submissions we make in this document should not be taken as accepting in any way as fair the procedure followed by you and your officials, or as any waiver of the argument that the process is not in accordance with Lord Woolf's observations in ex parte Fayed."