Question proposed,That the clause stand part of the Bill.

I will not detain the Committee greatly on the clause, but I want the Minister’s response on one point.

We all received briefing on clause 12 from the Immigration Law Practitioners Association. The association proposes a number of amendments, including leaving out clause 12 entirely and maintaining the status quo, which would leave to judicial review decisions relating to certain exclusions of non-European economic area nationals from the United Kingdom that were made wholly or partly on the grounds that their presence would not be conducive to the public good, as well as certain decisions to refuse to naturalise or register a person as a British citizen. That is clearly the association’s view, but the Opposition have not tabled amendments, because that is not our view in this respect.

The association proposes alternative provisions to remove the proposed option for the Secretary of State to issue a certificate to the effect that information should not be made public in the interests of the relationship between the United Kingdom and another country, or otherwise in the public interest. The amendments appear technical, but are directed to restricting to national security interests the grounds on which the Special Immigration Appeals Commission can hold closed material procedures in the cases provided for by the clause. That would bring the Bill’s immigration-related provisions into line with the general provisions concerning closed material procedures in relevant civil proceedings.

Subsection (2) of a new clause proposed by the association would restrict the use of closed material procedures to the grounds permitted in relevant civil proceedings—that is, national security grounds. Subsection (3) would require procedures to ensure parity of safeguards for applicants and appellants before SIAC, as for parties in relevant civil proceedings. Subsection (4)  would permit the commission to determine how that parity was to be ensured. The aim of the association’s new clause is:

“To ensure that safeguards, both procedural and jurisdictional, as to the use of closed material procedures in non-immigration cases are applied equally in immigration cases.”

The cases that the Bill proposes to cover are already covered by judicial review. When Mr Justice Ouseley, in the case of AHK and others, recently considered that in some cases a CMP might be appropriate, he had been told nothing other than that naturalisation had been refused on the grounds of character and that it would be contrary to the public interest to give reasons. His dilemma was:

“It is not so much that the case is untriable; it can be tried. It is simply that the evidence means that the Claimant cannot win”,

Unlike the Bill, however, he felt that the CMP should be considered only on the basis that public interest immunity would first be exhausted. ILPA argues that protections afforded by Parliament on the use of CMPs in the civil context should apply in the immigration context. It states:

“Ministers should be asked to give undertakings to amend the SIAC procedure rules to reflect the conclusions reached in the consideration of this Bill. Those appearing before SIAC should not be subject to a lower standard of protection than those in other courts.”

The point that the Minister may or may not wish to respond to, but with which I wish him to deal, is the Ouseley point, which is that, following AHK and others, the view of the court was that CMPs should be used only in those circumstances on the basis that PII should first be exhausted.

The hon. Gentleman rightly highlighted the problem of when an adverse decision on a naturalisation or citizenship case is informed in part or whole by sensitive material. The amendment enables such decisions to be challenged within the ambit of SIAC.

The point at issue is that decisions made by the Secretary of State in such circumstances are not subject to an automatic right of appeal and, therefore, the only route is judicial review at the High Court. There are a number of cases in which information of a sensitive nature justifies the action to exclude or refuse nationality. Such information could indicate that the individual was engaged in terrorism-related activity or serious criminality. In other cases, a decision might seriously impact on the UK’s international relations with another country.

It cannot be right in such circumstances that the Secretary of State is restricted in carrying out his or her duty to protect the public on the presumption that such material cannot be produced in judicial proceedings to defend and justify a decision. Equally, the claimant should not be denied judicial assessment of a decision on the basis that no forum is appropriately equipped to handle the material behind the decision. That is the unsatisfactory situation that Justice Ouseley mentioned in the case of AHK and others. He acknowledged that, in his judgment, the rather unsatisfactory outcome should be remedied in Parliament by provision for a closed material procedure, at least in that sort of case. It is an unsatisfactory situation that the court is unable to take  into account the very material upon which the decision was based, and that could lead to a case being dismissed as untriable, which would prejudice the claimant in the interests of natural justice or, in the circumstances that the hon. Gentleman has fairly explained, it could simply lead to the Secretary of State’s view being upheld.

The question that the hon. Gentleman poses about PII being exhausted takes us back to some of our previous debates on closed material proceedings, including on amendment 55 to clause 6. I simply restate the point I made about a case being saturated with information, and as David Anderson pointed out to the Joint Committee on Human Rights, the exercise might be pointless. It may be so clear that a CMP-type arrangement is required that going through a PII arrangement, or fully exhausting it, would simply be inappropriate. I underline that point in responding to the hon. Gentleman. The points I made in relation to clause 6 are equally applicable in responding to the point that he has now made about this particular clause.

Question put and agreed to.

Clause 12 accordingly ordered to stand part of the Bill.

Clause 13 ordered to stand part of the Bill.