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U3 v Secretary of State for the Home Department
Factual and Procedural Background
The appellant (“U3”) is a former British citizen who, together with her then-husband (“O”) and their three British-citizen children, lived in territory controlled by ISIL in Syria from 2014 to late-2017. On 18 April 2017 the respondent, the Secretary of State for the Home Department (“Secretary of State”), issued notice of an order depriving the appellant of her British citizenship under s.40(2) British Nationality Act 1981, having assessed—on intelligence advice—that her return would threaten United Kingdom national security. Because classified material underpinned the decision, a statutory certificate diverted any appeal from the First-tier Tribunal to the Special Immigration Appeals Commission (“SIAC”). The deprivation order was made on 22 April 2017; the appellant lodged her SIAC appeal on 31 May 2018.
In 2019 the children were repatriated to the United Kingdom and now live with wider family. The appellant remains in Syria with a new husband. On 11 August 2020 she sought entry clearance to re-join her children. That application was refused on 18 December 2020; a second national-security certificate again channelled any appeal to SIAC. The appellant appealed on 15 January 2021, contending the refusal disproportionately interfered with her children’s Article 8 ECHR rights. SIAC heard the deprivation and entry-clearance appeals together.
On 4 March 2022 SIAC dismissed both appeals, concluding—applying R (Begum)—that no public-law error undermined the Secretary of State’s national-security assessment and that refusal of entry was proportionate. The Court of Appeal dismissed a further appeal in July 2023, endorsing SIAC’s approach. The appellant now appealed to the Supreme Court, arguing that SIAC wrongly confined itself to public-law review and should have made its own findings on the Secretary of State’s “building-block” facts (for example, whether she was aligned with ISIL).
Legal Issues Presented
- Whether, in appeals under ss.2 or 2B Special Immigration Appeals Commission Act 1997, SIAC must itself determine disputed “precedent facts” on the balance of probabilities, or whether its role is confined to reviewing the Secretary of State’s national-security assessment on public-law grounds.
- If SIAC’s role is primarily one of public-law review, what weight should be given to the Secretary of State’s updated assessment where evidence emerged after the original decision?
- Whether the approach adopted by SIAC (and approved by the Court of Appeal) satisfies procedural fairness and the United Kingdom’s obligations under the European Convention on Human Rights, in particular Articles 6 and 8.
Arguments of the Parties
Appellant’s Arguments
- SIAC should resolve, on the balance of probabilities, core factual questions underpinning the Secretary of State’s assessment (e.g., whether the appellant was ideologically aligned with ISIL). If SIAC finds those facts differently, it must allow the appeal and remit the matter for reconsideration.
- The “public-law only” approach unduly fetters SIAC, is incompatible with Convention rights in Article 8 cases, and diminishes the procedural safeguards highlighted by the European Court of Human Rights.
- Alignment with ISIL is a “precedent fact” that SIAC was obliged to determine for itself; failure to do so was an error of law.
Respondent’s Arguments (Secretary of State)
- Parliament vested primary responsibility for national-security assessments in the Secretary of State; SIAC’s task is therefore to review for public-law error, not to substitute its own risk assessment.
- Begum and earlier authority (Rehman) establish that national-security risk is an evaluative judgment, not a binary fact, and need not be proved to the civil standard.
- SIAC’s procedure—allowing closed evidence, special advocates and continuous ministerial review—already satisfies fairness and Convention requirements.
Intervener’s Arguments (JUSTICE)
- Supported SIAC’s power to make its own findings but criticised the Court of Appeal’s “pivotal vs. non-pivotal fact” distinction as illogical.
- Submitted that, where SIAC makes material factual findings on matters not previously considered by the Secretary of State, the decision should be set aside unless the outcome would inevitably be the same.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7 | Defines SIAC’s review role and weight accorded to ministerial security assessments. | Treated as controlling authority: SIAC may review on public-law grounds but should not substitute its own risk assessment. |
| Secretary of State for the Home Department v Rehman [2001] UKHL 47 | Risk evaluation is an executive judgment; facts need not be proved on a balance of probabilities; courts give deference. | Reaffirmed to explain why SIAC’s task is review, not fact-finding. |
| Pham v Secretary of State for the Home Department [2015] UKSC 19 | Statelessness appeals require SIAC to determine factual jurisdictional issues itself. | Cited to illustrate issues where SIAC does engage in primary fact-finding (contrast to security risk assessment). |
| N3 v Secretary of State for the Home Department [2025] UKSC 6 | Clarifies SIAC’s role in statelessness questions under s.40(4) 1981 Act. | Used as further example of fact-finding contexts distinct from national-security evaluation. |
| Associated Provincial Picture Houses v Wednesbury Corp. [1948] 1 KB 223 | Standard of irrationality review. | Forms part of the public-law grounds SIAC may apply. |
| Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 | Carltona principle: officials may act in minister’s name. | Used to validate officials’ ongoing review of security assessment. |
| R (Pearce) v Parole Board [2023] UKSC 13 | Risk assessment need not rest on facts proved to civil standard. | Drawn on by the Court to analogise parole-risk reasoning with national-security assessments. |
| R (Youssef) v Secretary of State for Foreign & Commonwealth Affairs [2016] UKSC 3 | Risk-based executive decisions may rely on intelligence below civil proof threshold. | Supports evaluative-judgment framework. |
| Shagang Shipping Co Ltd v HNA Group Co Ltd [2020] UKSC 34 | Approach to allegations where definitive proof is elusive but risk is serious. | Illustrative of judicial handling of uncertainty. |
| In re B (Children) [2008] UKHL 35 | Explains binary nature of civil proof and its limits in risk contexts. | Quoted to contrast fact-finding with risk evaluation. |
| In re H (Minors) [1996] AC 563 | Example of acting on “real possibility” rather than proven fact. | Used to illustrate precautionary decision-making. |
| A v Secretary of State for the Home Department [2004] UKHL 56 | Great weight owed to executive on security matters. | Cited as affirmation of Rehman. |
| Huang v Secretary of State for the Home Department [2007] UKHL 11 | Court must accord appropriate weight to executive judgment. | Reinforces deference principle. |
| Runa Begum v Tower Hamlets LBC [2003] UKHL 5 | Court may quash decisions lacking evidential basis or based on misunderstanding. | Forms part of the administrative-law test SIAC applies. |
| Secretary of State for Education v Tameside MBC [1977] AC 1014 | Error of fact (ignorance/misunderstanding) as public-law ground. | Referenced within the Runa Begum quotation. |
| Bryan v United Kingdom (1996) 21 EHRR 342 | Article 6 satisfied where judicial review affords adequate control. | Used in human-rights analysis to show compatibility of limited fact review with Convention. |
| Tsfayo v United Kingdom (2009) 48 EHRR 18 | Administrative discretion and expertise justify narrower appellate scope. | Supports sufficiency of SIAC procedure. |
| IR v United Kingdom (2014) 58 EHRR SE14 | European Court upheld SIAC’s procedures in national-security exclusion cases. | Relied on to reject appellant’s Convention challenge. |
| Khan v United Kingdom (2014) 58 EHRR SE15 | Confirms SIAC’s “rigorous scrutiny.” | Cited similarly to IR. |
| Ramos Nunes de Carvalho e Sá v Portugal (2018) Grand Chamber | Defines “full jurisdiction” for Article 6 purposes. | Applied to show SIAC meets requirements despite limited substitution power. |
| Al-Nashif v Bulgaria (2003) 36 EHRR 37 | Necessity of adversarial review where national security invoked. | Forms backdrop to Convention analysis. |
| CG v Bulgaria (2008) 47 EHRR 51 | Same principle as Al-Nashif. | Referenced in rights discussion. |
| Nolan and K v Russia (2011) 53 EHRR 29 | Further authority on national-security expulsions. | Quoted in Convention context. |
| Mirzoyan v Czech Republic (2024) | Restates procedural safeguards required when security claims bar residence. | Cited to show contemporary Strasbourg standards, said to be met by SIAC. |
Court's Reasoning and Analysis
The Supreme Court (per Judge Reed, with Judges Hodge, Lloyd-Jones, Sales and Stephens concurring) reiterated that:
- An appeal to SIAC is a genuine appeal, not a traditional judicial-review claim, yet different issues within it demand different approaches.
- Where the challenge is to a national-security assessment, the issue is evaluative and discretionary; proof of underlying facts on the balance of probabilities is neither required nor determinative.
- The correct analytic focus is whether, viewing all evidence (including material emerging post-decision), the Secretary of State’s updated assessment is vitiated by recognised public-law errors: irrationality, reliance on irrelevant considerations, ignorance or misunderstanding of material facts, procedural unfairness, or legal misdirection.
- Risk evaluation may rest on intelligence and possibilities not provable to civil standard; precautionary weight is justified given potential catastrophic consequences.
- Institutional and constitutional principles warrant “very considerable” judicial deference: the Secretary of State acts on specialist Security Service advice and is democratically accountable for public safety.
- SIAC nonetheless retains power—and demonstrated willingness—to scrutinise evidential bases rigorously; it may and does make factual findings where necessary (e.g., statelessness or Article 8 impact), but in risk appeals its task is review, not substitution.
- The European Convention on Human Rights does not mandate that SIAC substitute its own security assessment; Strasbourg case law accepts robust public-law review, provided procedures are independent, adversarial, and allow effective challenge. SIAC meets these criteria.
- In this case SIAC’s sole immaterial error was treating the deprivation appeal as frozen at the decision-date, yet it in fact examined later evidence when addressing the entry-clearance appeal; outcome unchanged.
Holding and Implications
Appeal DISMISSED.
SIAC’s approach—reviewing the Secretary of State’s national-security assessment for public-law error while confining its own fact-finding to issues amenable to binary proof—was lawful. The appellant’s deprivation of citizenship stands, and her refusal of entry clearance remains in force. The judgment confirms and clarifies Begum, reinforcing that national-security risk assessments are executive evaluations subject to deferential but rigorous administrative-law review. No new doctrinal standard was created, but the decision provides authoritative guidance on SIAC’s analytic framework and compatibility with Convention obligations.
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