United Kingdom citizenship - Deprivation of citizenship - Claimant becoming naturalised British citizen

GI v Secretary of State for the Home Department: Queen's Bench Division, Administrative Court (London): 19 July 2011

The claimant was a Sudanese national. He became a naturalised British citizen in 2000. His wife had British and Sudanese nationality, as did his child. In 2009 he was arrested for and charged with a public order offence arising out of his participation in a protest against Israeli military action in Gaza. He was bailed, but, in October 2009, before he was required to surrender to his bail, he left the United Kingdom for Sudan.

By a notice sent under a cover letter addressed to the claimant's UK address, the defendant secretary of state gave notice of her intention to deprive him of his British citizenship on the grounds that it would be conducive to the public good to do so because the Security Service had assessed that he was involved in terrorism related activities and had links to a number of Islamic extremists. By an order signed on behalf of the secretary of state on 14 July 2010, she deprived the claimant of his British citizenship on the ground that it was conducive to the public good to do so.

On the same date, the secretary of state personally decided to exclude the claimant from the UK on identical grounds. Notice of that decision was served by first class post and special delivery on the same date. The claimant exercised his statutory right of appeal to the Special Immigration Appeals Commission against the decision to deprive him of his British citizenship. The decision to exclude him from the UK on conducive grounds had been taken in the exercise of prerogative powers and had not been an immigration decision for the purposes of Pt V of the Nationality Immigration and Asylum Act 2002. Consequently, the only means by which it could be challenged was by judicial review.

Accordingly, the claimant applied for judicial review. The claimant was in precisely the same position as someone who had never had British citizenship. The reason why he could not challenge the secretary of state's decision on an appeal against an immigration decision was simply that he had not applied for entry clearance. He was, however, at least as well placed as the individual who had never been a British citizen, because he had an express right of appeal on the merits of the decision to deprive him of citizenship under s 2B of the Immigration Appeals Commission Act 1997 (the 1997 Act). If his appeal succeeded the secretary of state's power to exclude him would fall sway.

He contended that: (i) the statutory scheme impliedly excluded the exercise by the secretary of state of the prerogative power to exclude an individual who had been deprived of British citizenship on conducive grounds; and (ii) to permit him to conduct his appeal against the decision to deprive him of British citizenship, the secretary of state had to make arrangements for him to return to the UK to give instructions to his lawyers and to appear personally at the hearing of his appeal. The secretary of state suggested that the claimant could give instructions and evidence by Skype or television link, for which there were adequate facilities in Sudan. The claimant contended that to do so would put him at risk of becoming of adverse interest to the Sudanese security service, an occurrence which would put his safety at risk. Consideration was given to the Nationality Act 1981 (the 1981 Act) and the Asylum and Immigration Act 2004 (the 2004 Act).

The application would be dismissed.

(1) Section 2B of the 1997 Act provided that s 40A(3)(a) of the 1981 Act should have effect in relation to appeals under s 2B. There was no provision for suspension of the deprivation decision or order, pending appeal. Under the pre-2004 Act scheme, there had been such a provision. Section 40A(6) of the 1981 Act provided that a deprivation order could be made while an appeal against the decision to make the order was pending; but that provision had been repealed by Sch 2 to the 2004 Act. Until then, the secretary of state had had no power to exclude an individual who was the subject of a deprivation decision. Until the order took effect, he remained a British citizen, who could not be excluded in the exercise of prerogative powers.

The question for decision was whether, by removing that bar, parliament had authorised the exercise of the prerogative power to exclude before the right to appeal against the deprivation order had been exercised and/or ceased to be pending. As a matter of language that was precisely what parliament had done. Section 40(2) of the 1981 Act permitted the secretary of state by order to deprive a person of citizenship status if satisfied that deprivation was conducive to the public good. In s 40A(3)(a) of the 1981 Act parliament had provided for the existence of a discretion, exercisable by the Special Immigration Appeals Commission, to direct that the deprivation order was to be treated as having had no effect. There was no discretion as to the future, the secretary of state would have no option but to restore citizenship (see [5]-[6] of the judgment).

Paragraph 121 of the explanatory note to the 2004 Act explained that the amendment to the 1981 Act 'has the effect that a deprivation order can be made before any appeal is heard, thereby allowing deprivation and deportation proceedings to take place concurrently'. That was, no doubt, an intended purpose of the amendment but it was not, as a matter of language, inevitably the only consequence. Parliament could be taken to have enacted the changes in the knowledge that the secretary of state retained the prerogative power to exclude on conducive grounds. If the draftsmen had wished to exclude the use of the prerogative power to exclude on conducive grounds while an appeal against a deprivation order was pending, he could have done so by express words (see [7] of the judgment).

R (on the application of Farrakhan) v Secretary of State for the Home Department [2002] 4 All ER 289 considered.

(2) In the circumstances, the differences between the claimant and secretary of state could be circumvented if the claimant could travel to a safe third country, in or from which he could give instructions and from which he could give evidence by television link. The live question was whether the claimant could travel to a safe third country. For that he would require a Sudanese identity document and passport. On balance, it seemed more likely than not that he could obtain a Sudanese passport, just as he had obtained a nationality certificate.

Furthermore, he would, in any event, require a Sudanese passport lawfully to leave Sudan. His British passport had been withdrawn. If, nevertheless, he proposed to depart Sudan by using it, he could also use it to visit a third country. Further, if he were to return to the UK, there was little likelihood that he would return to Sudan if he were to lose his appeal. If he left without a Sudanese passport and exit visa, he would have no travel document which would secure his re-entry into Sudan. Emergency travel documents would have to be obtained from the Sudanese embassy in London. If his concerns were justified, that would immediately alert the Sudanese authorities to the fact that he was unable to travel on his British passport.

The most obvious of enquiries would reveal that it had been withdrawn on conducive grounds. It would then be open to him to claim that it would not be safe to return him to Sudan, a ground of challenge, which, given Sudan's notoriously poor human rights record, might well succeed. Accordingly, the step which the claimant suggested was required of the secretary of state would, if he were found to pose a threat to national security, frustrate a decision which would, by then, have been established to be lawful and justified. The secretary of state could not be criticised for refusing to take a step which would, in all probability, have the effect of frustrating a decision which, if upheld on appeal, would have been lawfully and properly taken in the interests of national security (see [8]-[11] of the judgment).

Rottmann v Freistaat Bayern: C-135/08 [2010] All ER (EC) 635 considered; ZZ v Secretary of State for the Home Department [2011] All ER (D) 210 (Apr) considered; R (on the application of E1) v Secretary of State for the Home Department [2011] All ER (D) 63 (May) considered.

Amanda Weston (instructed by Binberg Pierce and Partners) for the claimant. Tim Eicke QC and Rory Dunlop (instructed by the Treasury Solicitor) for the secretary of state.