Deprivation of citizenship

The Secretary of State for the Home Department had made a decision depriving the appellant (SB) of British citizenship after she had travelled to Syria to join ISIL. The Supreme Court considered appeals against three decisions relating to SB. The court held that, among other things, the Court of Appeal had mistakenly believed that, when an individual’s right to have a fair hearing of an appeal came into conflict with the requirements of national security, her right to a fair hearing had to prevail. If a vital public interest - in the present case, the safety of the public - made it impossible for a case to be fairly heard, then the courts could not ordinarily hear it. The appropriate response to the problem in the present case was for the appeal to be stayed until SB was in a position to play an effective part in it without the safety of the public being compromised. The Secretary of State’s appeals in each of the proceedings before the court would be allowed, and SB’s cross-appeal would be dismissed.

In February 2019, the then Secretary of State for the Home Department (the Secretary of State) notified SB that he intended to deprive her of her British citizenship (the deprivation decision). The reason for that decision was that she possessed British and Bangladeshi citizenship and was said to have travelled to Syria in February 2015, in order to join ISIL, and that he considered that her return to the UK would present a risk to the national security of the UK.

At that time, SB was being held at a camp in Syria by the Syrian Democratic Forces, where she had remained. In May, she made an application for leave to enter the UK, in order, among other things, to be able to pursue an appeal against the deprivation decision. In June 2019, the Secretary of State refused that application (the LTE decision).

The Supreme Court considered three appeals related to SB.

The first concerned SB’s appeal against the deprivation decision to the Special Immigration Appeals Commission (SIAC). SIAC had determined that the Secretary of State had not departed from his extraterritorial human rights policy when he had made the deprivation decision (the policy issue) and that, although SB could not have had an effective appeal against that decision in her current circumstances, it did not follow that her appeal ought to succeed (the fair and effective appeal issue).

The second appeal concerned the LTE decision in relation to the Human Rights Act 1988 (HRA 1988). SB had a statutory right of appeal against that decision, but only so far as she claimed that the decision had been unlawful under HRA 1988. She made such an appeal, but it was refused by SIAC at first instance. SB successfully appealed to the Court of Appeal, Civil Division. The Secretary of State appealed to the Supreme Court, contending that the Court of Appeal had wrongly decided that SB should be granted leave to enter because, otherwise, she could not have a fair and effective hearing of her appeal against the deprivation decision.

The third appeal proceedings concerned the LTE decision, other than in respect of its compliance with HRA 1988. SB challenged the LTE decision via judicial review, as she lacked a statutory right of appeal to SIAC. Her application was dismissed at first instance but allowed on appeal. The Secretary of State appealed to the Supreme Court, contending that the Court of Appeal had been wrong to conclude that leave to enter had to be granted to SB, because she could not otherwise have had a fair and effective hearing of her appeal against the deprivation decision.

(1) Whether the Divisional Court had been wrong to reject SB’s argument that the deprivation appeal should automatically be allowed if it could not be fairly and effectively pursued as a consequence of the refusal of her application for leave to enter the United Kingdom.

In considering the consequences of a person’s inability to pursue an effective appeal against a deprivation decision, it was necessary to acknowledge that Parliament had conferred on that person a right of appeal. Parliament had not, however, stipulated what the appellate tribunal should do if the person’s circumstances were such that she could not effectively exercise that right (see [89] of the judgment).

Fairness was not one-sided and required proper consideration to be given, not just to the position of SB but also to the position of the Secretary of State. It followed that an appeal should not be allowed merely because SB had found herself unable to present her appeal effectively: that would be unjust to the respondent. If the problem was liable to be temporary, the court could stay or adjourn the proceedings until the disadvantage could be overcome. If the problem could not be overcome, however, then the court would usually proceed with the case (see [90] of the judgment).

Where, on the other hand, the difficulty was of such an extreme nature that not merely was one party placed at a forensic disadvantage, but it was impossible for the case to be fairly tried, the interests of justice could require a stay of proceedings (see [91] of the judgment).

The nature and consequences of the decision in the deprivation appeal did not point towards a different conclusion. In such a case, it would be irresponsible for the court to allow the appeal without any regard to the interests of national security which prompted the decision in question, and it was difficult to conceive that the law would require it to do so. There was nothing in the statutory provisions which pointed towards a different conclusion. However, the provisions did not positively point away from that conclusion (see [94], [95] of the judgment).

Consequently, SB’s cross-appeal would be dismissed (see [97] of the judgment).

Secretary of State for the Home Department v AF [2009] 3 All ER 643 distinguished; Secretary of State for the Home Department v AN; Secretary of State for the Home Department v AE [2010] All ER (D) 347 (Jul) distinguished; Prebble v Television New Zealand Ltd [1994] 3 All ER 407 considered; Hamilton v Al Fayed [2000] 2 All ER 224 considered; Carnduff v Rock  [2001] EWCA Civ 680 considered; Secretary of State for the Home Dept v Rehman [2001] UKHL 47 considered; Home Office v Tariq [2011] All ER (D) 108 (Jul) considered; Al Rawi v Security Service [2012] 1 All ER 1 considered; R (on the application of Lord Carlile of Berriew QC) v Secretary of State for the Home Department [2014] UKSC 60 considered.

(2) Whether the Secretary of State’s appeal against the Court of Appeal’s decision in the LTE appeal should be allowed.

The Court of Appeal had erred in its approach to the appeal against the dismissal of SB’s application for judicial review of the Home Secretary’s refusal of leave to enter the UK. It had made its own assessment of the requirements of national security, and preferred it to that of the Home Secretary, despite the absence of any relevant evidence before it, or any relevant findings of fact by the court below (see [134] of the judgment).

First, there had been no basis for allowing the LTE appeal. The only ground on which such an appeal could have been brought was that the LTE decision had been unlawful under s 6 of HRA 1988. No such ground had been argued before the Court of Appeal (see [107] of the judgment).

Second, the exercise which the Court of Appeal had undertaken, of comparing the level of risk to national security posed by SB with the risk posed by  the claimant in U2 v Secretary of State for the Home Department (U2), had been misguided. In the first place, the Court of Appeal had been in no position either factually or jurisdictionally to undertake such a comparison. In the second place, the comparison between SB and U2 could not in any event have supported the conclusion which the Court of Appeal had drawn from it, namely that ‘given the difference in level of seriousness between U2 and SB, the national security concerns about her could be addressed and managed if she returns to the United Kingdom’ (see [108] of the judgment).

Third, there had been no basis for the Court of Appeal’s finding that the national security concerns about SB could have been addressed and managed by her being arrested and charged upon her arrival in the UK, or by her being made the subject of a measure taken under the Terrorism Prevention and Investigation Measures Act 2011 (TPIMA 2011) (see [109] of the judgment).

Fourth, the proposition that, given that the only way in which SB could have a fair and effective appeal was to be permitted to come into the UK to pursue her appeal, fairness and justice had to outweigh the national security concerns, appeared to have been based on the view that the right to an effective appeal was a trump card. That view was mistaken. If, however, the Court of Appeal had been purporting to make an evaluative judgment on the particular facts, balancing the public interest in SB’s ability to pursue her appeal against the public interest in minimising the risk of terrorism, and deciding whether on balance her application for leave to enter the UK ought to be granted, then (i) that had not been its function on an appeal in proceedings in which the Secretary of State’s decision had not been challenged on that basis; and (ii) even if the issue had properly been before it, it would have been confined to reviewing the reasonableness of the Secretary of State’s assessment, bearing in mind the limitations of the judicial role (see [110] of the judgment).

The Court of Appeal had mistakenly believed that, when an individual’s right to have a fair hearing of an appeal came into conflict with the requirements of national security, her right to a fair hearing had to prevail. If a vital public interest - in the present case, the safety of the public - made it impossible for a case to be fairly heard, then the courts could not ordinarily hear it. The appropriate response to the problem in the present case was for the appeal to be stayed until SB was in a position to play an effective part in it without the safety of the public being compromised. That was not a perfect solution, as it was not known how long it might be before that was possible. However, there was no perfect solution to such a dilemma (see [135] of the judgment).

Consequently, the Secretary of State’s appeal against the Court of Appeal’s decision in the LTE appeal would be allowed. The Secretary of State’s appeal against the Court of Appeal’s decision in the proceedings for judicial review of the LTE decision would also be allowed (see [111] of the judgment).

U2 v Secretary of State for the Home Department (Appeal No SC/130/2016) (unreported) distinguished; Secretary of State for the Home Dept v Rehman [2001] UKHL 47 considered; A v Secretary of State for the Home Department; X v Secretary of State for the Home Department [2004] UKHL 56 considered; R (on the application of Lord Carlile of Berriew QC) v Secretary of State for the Home Department [2014] UKSC 60 considered; R (on the application of W2 and another) v Secretary of State for the Home Department [2017] EWCA Civ 2146 considered.

(3) Whether the Secretary of State’s appeal against the Divisional Court’s decision to allow SB’s application for judicial review of SIAC’s decision concerning the Secretary of State’s policy succeeded.

It was the Court of Appeal rather than SIAC which had erred in its approach to the issue. The Court of Appeal had misunderstood the role of SIAC and the courts on an appeal against the Home Secretary’s decision to refuse a person leave to enter the United Kingdom. The scope of an appeal in such cases was confined to the question whether the decision was in accordance with HRA 1988 s 6 (see [117], [133] of the judgment).

The scope of SIAC’s jurisdiction in an appeal against a decision taken under s 40(2) of the British Nationality Act 1981 (BNA 1981) was, first, to determine whether the Secretary of State had acted in a way in which no reasonable Secretary of State could have acted, or had taken into account some irrelevant matter, or had disregarded something to which he should have given weight, or had been guilty of some procedural impropriety; second, to determine whether he had erred in law; third, to determine whether he had complied with BNA 1981 s 40(4); and, fourth, to determine whether he had acted in breach of any other legal principles applicable to his decision, such as the obligation arising in appropriate cases under s 6 of the HRA (see [119] of the judgment).

The Court of Appeal had wrongly approached the present issue as if the principles relevant to the Secretary of State’s application of his policy had been indistinguishable from those which had been relevant to his duties under the HRA. There were important differences between the legal principles applicable to a statutory duty and those which applied to an administrative policy (see [120] of the judgment).

Policy was not law, and could be consciously departed from. However, a failure by a public authority to follow its policy without good reason could be open to challenge. On the other hand, the question of how the policy applied to the facts of a particular case was generally treated as a matter for the authority, subject to the Wednesbury requirement of reasonableness. That was most obviously the correct approach where, as in the present case, the application of the policy expressly depended upon the primary decision-maker’s exercise of judgment (see [124] of the judgment).

Applying those principles, the point in issue was not, as the Court of Appeal had supposed, whether SB had been at real risk of treatment which would have contravened arts 2 or 3 of the ECHR, if those provisions had been applicable. The issue was whether the Secretary of State, when exercising his discretion under BNA 1981 s 40, had acted in compliance with his policy. In order to comply with his policy, the Secretary of State had had to make a judgment as to the degree of risk of such treatment to which SB would have been exposed, on the basis of a body of material which had enabled him to make such an assessment, and to decide whether he was satisfied that SB would be exposed to a real risk of such treatment. That was what the Secretary of State had done (see [129], [130] of the judgment).

The Court of Appeal had mistakenly treated the Home Secretary’s policy, intended for his own guidance in the exercise of the discretion conferred on him by Parliament, as if it were a rule of law which he had to obey. As a result, it had applied the wrong approach to considering whether the Home Secretary had acted lawfully (see [136] of the judgment).

Therefore, the Secretary of State’s appeals in each of the proceedings before the court would be allowed, and SB’s cross-appeal would be dismissed. Consequently: (i) SB’s LTE appeal would be dismissed; (ii) her application for judicial review of the LTE decision would be dismissed; and (iii) her application for judicial review of SIAC’s preliminary decision in the deprivation appeal would be dismissed (see [137] of the judgment).

R v Secretary of State for the Home Department, ex p Venables [1997] 3 All ER 97 considered; R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] All ER (D) 116 (May) considered; R (on the application of Evans) v Secretary of State for Defence [2010] All ER (D) 219 (Jun) considered.

Appeals dismissed.

Sir James Eadie QC, Jonathan Glasson QC and David Blundell QC (instructed by The Government Legal Department).

Lord Pannick QC, Tom Hickman QC and Jessica Jones (instructed by Birnberg Peirce Ltd) for SB.

Professor Guglielmo Verdirame QC, Jason Pobjoy and Belinda McRae (instructed by Leigh Day (London)) for the UN Special Rapporteur on Counter-Terrorism (written submissions only) as first intervening party.

Richard Hermer QC and Ayesha Christie (Instructed by Liberty) for Liberty as second intervening party.

Felicity Gerry QC and Eamonn Kelly (instructed by JUSTICE) for JUSTICE as third intervening party.

Angus McCullough QC Adam Straw (instructed by The Government Legal Department) as special advocates (written submissions only).

Toby Frost - Barrister.