Striking a Fine Balance: A Welcome Judicial Review of Executive Discretion in MM
On 3 December 2015, the High Court (Administrative Division) of England and Wales rendered an important decision in MM & GY & TY v Secretary of State (“MM”) with respect to administrative discretion while deciding on the application for citizenship by family members of a former Egyptian Islamic Jihad (“EIJ”) associate. The claimants were the wife and children of Hany El Sayed El Sabaei Youssef (“HY”), who was assessed by the Secretary of State for the Home Department (“SSHD”) to be an Islamic extremist and was formerly associated with the EIJ.
The court upheld the claimants’ contentions that the decision of the SSHD to refuse their claim for citizenship through naturalisation—in spite of satisfying statutory requirements—on the ground that potential extremists would be deterred, was arbitrary. Justice Ouseley, in his well-reasoned decision, held that the response of the SSHD was unreasonable as she refused the application for citizenship solely on the ground that the claimants were family members of HY. He further held that while it was essential to contain the threat of extremism, and have due regard to powers of SSHD, it was premised on principles which were unsound in reasoning and law.
The judgment is significant for two reasons. First, it struck down the decision of the SSHD on grounds of irrationality and unfairness. It was observed that the targeted group, on which deterrence was to take effect, was undefined. While deterrence was not intended for HY, who, based on the admission of the SSHD, was no longer engaged in any extremist activities, the claimants were unconnected to others who need to be deterred. The exercise of discretion was based on a remote consequence and was outweighed by its effects on the claimants’ rights. Such a decision has been uncommon in the recent past where the judiciary has largely been deferential to the idea of institutional competence, leaving decisions on citizenship and immigration, intimately connected to national security, to the executive and parliament.
S. 6 of the British Nationality Act, 1981 states that citizenship through naturalisation may be granted upon satisfaction of the SSHD, exercising his or her discretion, once the applicant fulfills requirements in Schedule 1 of the Act. These requirements include: 5 years residence without breach of immigration laws, good character, adequate language knowledge, and the intention that his or her principal home will be in the UK. The claimants fulfilled all these requirements. In the published guidance by SSHD, Nationality Policy Guidance Casework Instructions at Chapter 18A annex (d) version 2013, ‘good character’ was further elaborated to exclude involvement of the claimant in criminal activities, acts of terrorism, evasion of immigration control etc. Through the amendment to Nationality Instructions in March 2015, personal associations, including family relationships were included as relevant factors for the Secretary of State to refuse the application. In the exercise of discretion to refuse application, due regard would be given to whether personal associations of the claimant were current and/or, if family ties have been severed.
In the present case, the claimants had no association with the terrorist groups or extremist ideas; HY had distanced himself from terrorist activities and organisations. The court agreed with the submissions of the claimants that the discretion had to be reasonable, fair, and proportionate as the citizenship claims were serious and a refusal would have grave implications for the claimants. It found that the objective sought to be achieved by the statutory discretion was unclear. The judgment reviewed the nature of discretion, which was not residual or generic and hence could not be exercised in an unrestrained manner.
Second, the key aspect of the decision where the court observed that the executive must determine scope and extent of discretion has particular consequences for the rule of law broadly. Maintaining a fine balance between different organs of government while compelling them to be receptive and understanding of each other’s powers has been a huge challenge in anti-terror strategies.
The reasoning in the present decision hints at possibility of moderation in judicial review. The court limited the review to scope of executive discretion and evaluated the SSHD’s administrative decision using a reasonableness and proportionality test. The judgment makes a wise distinction between exercise of discretion within the parameters of the statute and the unlimited discretion conjured as a remedy to the faceless threats of terrorism. Democracy and principles of rule of law require distancing from the latter. One hopes that the balancing act by the judiciary, as reflected in the present decision, is here to stay.