Factual and Procedural Background
This appeal concerns decisions by the Secretary of State to deprive the Appellant of British citizenship and to refuse her application for leave to enter (LTE) the United Kingdom to pursue her appeal against that deprivation. The deprivation decision was made on 19 February 2019, and the refusal of LTE on 13 June 2019. The Appellant challenged the refusal of LTE by appeal to the Special Immigration Appeals Commission (SIAC) and by judicial review in the Administrative Court. SIAC identified three preliminary issues for determination: (1) whether the deprivation rendered the Appellant stateless, (2) whether the deprivation was unlawful due to the risk of mistreatment breaching Articles 2 or 3 of the European Convention on Human Rights (ECHR), and (3) whether the Appellant could have a fair and effective appeal from outside the UK, specifically from Syria.
The deprivation appeal, LTE appeal, and judicial review were heard together before SIAC and the Administrative Court in October 2019. Judgments were handed down in February 2020, including an open judgment by SIAC resolving the preliminary issues against the Appellant, a judgment dismissing the judicial review claim on the LTE decision, and a closed SIAC judgment on the deprivation appeal which was not relevant to the present appeal. The Appellant was granted permission to apply for judicial review of SIAC’s decision on the second and third preliminary issues and permission to appeal the LTE decisions. The appeals were heard by the Court of Appeal and Divisional Court respectively.
The Appellant was born in the UK in 1999 and held dual British and Bangladeshi citizenship. At age 15, she left the UK to travel to Syria, where she aligned with ISIL and lived until detained by the Syrian Democratic Forces (SDF) in camps with harsh conditions. The Secretary of State’s decision to deprive citizenship was based on security assessments that the Appellant travelled to Syria and aligned with ISIL, posing a national security threat. The Secretary of State’s submissions acknowledged the Appellant’s radicalisation as a minor but maintained deprivation was justified. The submissions further assessed risk of mistreatment under Articles 2 and 3 ECHR, concluding no substantial grounds existed for real risk arising directly and foreseeably from deprivation.
Legal Issues Presented
- Whether the deprivation decision rendered the Appellant stateless;
- Whether the deprivation decision was unlawful due to exposing the Appellant to a real risk of mistreatment breaching Articles 2 or 3 of the ECHR, contrary to the Secretary of State’s policy;
- Whether the Appellant could have a fair and effective appeal against deprivation from outside the UK, particularly while detained in Syria;
- Whether the refusal of leave to enter (LTE) the UK was lawful;
- The proper approach to the assessment of risk under the Secretary of State’s extra-territorial policy;
- The legal consequences of the Appellant’s inability to participate effectively in her appeal.
Arguments of the Parties
Appellant's Arguments
- The Appellant cannot participate meaningfully in her appeal while detained in Syria, rendering the appeal unfair and ineffective.
- The deprivation decision exposes her to a real risk of mistreatment under Articles 2 and 3 ECHR, including risk of transfer to Bangladesh or Iraq where she faces death penalty or ill-treatment.
- The Secretary of State’s policy on extra-territorial effect should be applied as if Articles 2 and 3 have extra-territorial effect, requiring a full merits assessment of risk including all evidence.
- The refusal of LTE unlawfully interferes with her constitutional right of access to court and statutory right of appeal, which must be effective.
- If the appeal cannot be fair and effective, it should be allowed or alternatively the LTE appeal should be allowed to enable her to return and participate.
- International law and principles of natural justice require procedural fairness and an effective independent review of deprivation decisions.
Secretary of State's Arguments
- The Appellant’s inability to participate effectively is self-inflicted by her choice to travel to Syria and align with ISIL.
- SIAC’s finding that the appeal is not fair and effective is provisional and circumstances may change allowing participation.
- The statutory scheme does not guarantee an in-country appeal or require the Secretary of State to facilitate return for appeal purposes.
- The deprivation decision was lawful, based on proper security assessments, and not an abuse of power.
- The Secretary of State’s extra-territorial policy requires a judicial review standard of reasonableness, not a full merits assessment, and does not require speculation on future risks outside Syria.
- Granting LTE would undermine national security, as the Secretary of State cannot control the Appellant’s movements or ensure public safety if she returns.
- International law does not override the statutory scheme, which is not arbitrary and includes a right of appeal even if exercised from abroad.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| X2 v Secretary of State for the Home Department [SC/132/2016] |
Policy requiring consideration only of risks that are both direct consequence and foreseeable of deprivation decision. |
Applied to assess whether deprivation exposed Appellant to real risk breaching Articles 2 or 3 ECHR. |
| G1 v Secretary of State for the Home Department [2012] EWCA Civ 867 |
No general common law right to be present at appeal; no duty to facilitate return for appeal. |
Supported view that appeals under section 40A BNA are often exercised from abroad. |
| L1 v Secretary of State for the Home Department [2015] EWCA Civ 410 |
Secretary of State may take steps that hamper in-country appeal if justified by national security. |
Supported interpretation of statutory scheme allowing deprivation decisions without in-country appeal. |
| S1 v Secretary of State for the Home Department [2016] EWCA Civ 560 |
SIAC has no power to require Secretary of State to facilitate return for appeal; judicial review of entry clearance refusal possible but rare. |
Confirmed statutory scheme and limits of SIAC’s jurisdiction regarding entry clearance. |
| Kiarie v Secretary of State for the Home Department [2017] UKSC 42 |
Procedural protections under different statutory appeal regime; relevance of Article 8 ECHR. |
Distinguished as not binding or applicable to current statutory scheme. |
| AN v Secretary of State for the Home Department [2010] EWCA Civ 869 |
Unlawfulness of control order without disclosure; procedural fairness requirements. |
Distinguished due to different statutory regime; did not bind current case. |
| W2 v Secretary of State for the Home Department [2017] EWCA Civ 2146 |
SIAC’s jurisdiction to determine effectiveness of out-of-country appeal; possibility of facilitating return on appeal. |
Considered obiter; SIAC rejected binding effect in current statutory context without Article 8. |
| K2 v United Kingdom (2017) 64 EHRR SE 18 |
European Court of Human Rights inadmissibility of argument that deprivation breached Article 8 rights. |
Referenced regarding absence from jurisdiction and appeal rights. |
| Al Jedda v Secretary of State for the Home Department [2009] SC/66/2008 |
Full merits appeal right before SIAC; absence of duty to consult prior to deprivation decision. |
Confirmed the nature of the appeal as a full merits appeal. |
| AS & DD v Secretary of State for the Home Department [2008] EWCA Civ 289 |
Assessment of real risk of ill-treatment on return; factual inquiry for SIAC. |
Applied to support requirement of full merits assessment of risk. |
| R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin) |
Court’s independent assessment of risk under Article 3; application to detainee transfers. |
Supported view that SIAC should make independent risk assessment on full evidence. |
| R (Osborn) v The Parole Board [2013] UKSC 61 |
Common law principles of fairness and right to be heard in decision-making. |
Relied upon to support procedural fairness arguments. |
| R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812 |
Common law fairness obligations in administrative decision-making. |
Supported submissions on natural justice requirements. |
| Assange v Swedish Prosecution Authority [2012] UKSC 22 |
Interpretation of statutory schemes in light of international law obligations. |
Supported presumption against statutory interpretation breaching international law. |
| Trendtex Trading Corp v Central Bank of Nigeria [1977] QB 529 |
International law and common law relationship. |
Discussed but distinguished regarding incorporation of customary international law. |
| Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 |
Role of customary international law in shaping common law consistent with domestic law. |
Applied to clarify limits on international law’s effect. |
| R (Evans) v Attorney General [2015] UKSC 21 |
Binding effect of SIAC decisions and remedies available. |
Referenced in context of SIAC’s jurisdiction to grant effective remedies. |
Court's Reasoning and Analysis
The Court examined the statutory framework governing deprivation of citizenship and appeals under the British Nationality Act 1981 and the Special Immigration Appeals Commission Act 1997, emphasizing that appeals are full merits appeals rather than judicial review. SIAC’s function is to determine the merits of the Secretary of State’s decisions based on all evidence, not merely to review the reasonableness of the decision-maker’s assessment.
In relation to the deprivation decision, the Court accepted SIAC’s conclusion that the deprivation did not render the Appellant stateless and that the Secretary of State was entitled to rely on the material before him to conclude no real risk of ill-treatment arose as a direct and foreseeable consequence of deprivation. The Court noted SIAC’s error in applying judicial review principles to the assessment of risk under the Secretary of State’s extra-territorial policy, which should have been a full merits assessment. The Court found that SIAC failed to properly consider evidence of risk of mistreatment if the Appellant were transferred to Bangladesh or Iraq, or the risk of prolonged detention in harsh conditions caused by deprivation, and accordingly quashed SIAC’s decision on this issue, remitting it for fresh consideration.
Regarding the Appellant’s inability to participate effectively in her appeal while detained abroad, the Court agreed with SIAC’s finding that the appeal was not fair and effective in her current circumstances. However, the Court rejected the submission that this required the appeal to be allowed outright without consideration of the merits. The Court emphasized the importance of balancing fairness to the Appellant with national security interests and the public interest. It rejected the notion that an appeal must automatically succeed if the appellant cannot participate meaningfully, noting that such a rule would subvert the statutory scheme and national security considerations.
The Court considered possible remedies for the unfairness: continuing the appeal despite lack of participation, staying the appeal indefinitely, or allowing the appeal. It dismissed continuing or striking out the appeal as inadequate and found indefinite stay unsatisfactory as it would render the appeal meaningless for an unlimited time. The Court concluded that the only effective remedy was to allow the Appellant to enter the UK to participate in her appeal, thereby allowing the LTE appeal. This conclusion was reached despite national security concerns, which the Court found could be managed by existing measures such as prosecution or Terrorism Prevention and Investigation Measures (TPIMs).
The Court also carefully analysed relevant case law, including decisions of the Court of Appeal and Supreme Court, concluding that the statutory scheme does not guarantee an in-country appeal and contemplates appeals from abroad. It found that previous decisions relied upon by the Secretary of State supported this interpretation. The Court distinguished cases involving Article 8 ECHR rights, which are not engaged here, and found that obiter statements suggesting automatic allowance of appeals where participation is impossible do not bind the present case.
On international law and natural justice, the Court acknowledged the importance of procedural fairness and safeguards against arbitrariness but held that these do not mandate allowing the appeal without merit consideration. The Court found no error in the Secretary of State’s deprivation decision on grounds of arbitrariness or incompatibility with international law.
Holding and Implications
The Court’s final decision was to:
- Quash SIAC’s decision on the second preliminary issue relating to the risk of ill-treatment under Articles 2 and 3 ECHR and remit the matter to SIAC for reconsideration on a full merits basis.
- Dismiss the claim that the deprivation appeal must be allowed solely because the Appellant cannot participate effectively in her appeal while detained abroad.
- Allow the Appellant’s appeals against the refusal of leave to enter (LTE) the United Kingdom to enable her to participate effectively in her appeal.
The direct effect of this decision is that the Appellant will be permitted to enter the UK to pursue her appeal against deprivation of citizenship, addressing the procedural unfairness identified. The deprivation appeal itself remains subject to reconsideration by SIAC on the merits of the risk of ill-treatment issue. The Court did not establish a new precedent mandating allowance of appeals where participation is impossible; rather, it emphasized balancing fairness with national security and statutory intent. The decision underscores the importance of effective procedural rights in national security-related deprivation cases while recognizing the limits imposed by public interest and statutory frameworks.