B4 v Secretary of state for the Home Department

Hearing dates: 14 & 15 May 2024

Approved OPEN Judgment

This judgment was handed down remotely at 2 p.m. on 31 July 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

On 26 October 2018 the Secretary of State decided to deprive the Appellant of his British citizenship pursuant to section 40(2) of the British Nationality Act 1981 (“the 1981 Act”) on the ground that it was conducive to the public good (“the deprivation decision”). The Appellant's appeal to the Special Immigration Appeals Commission (“SIAC”) was dismissed on 1 November 2022. The judgment was given by Jay J, the Chair of SIAC. The Appellant now appeals to this Court with the permission of SIAC on certain grounds and with the permission of this Court on others.

The Appellant is the subject of an anonymity order dated 3 April 2023, as he was during the proceedings below. SIAC issued a PRIVATE judgment, which was confidential to the parties, as well as OPEN and CLOSED judgments. On this appeal, I do not consider it necessary to give a PRIVATE judgment, as the parties already know the relevant information, not least as they have SIAC's PRIVATE judgment. When referring to such confidential matters, I will use the same terminology that was used by SIAC in its OPEN judgment, e.g. to refer to certain countries without naming them. There is also a CLOSED judgment on this appeal, as there are matters which cannot be set out in this OPEN judgment without prejudicing national security.

At the OPEN hearing we heard submissions from Ms Stephanie Harrison KC, who appeared with Mr Ali Bandegani and Ms Julianne Kerr Morrison on behalf of the Appellant, and from Mr Jonathan Glasson KC and Mr James Stansfeld on behalf of the Respondent. At the CLOSED hearing, the interests of the Appellant were represented by Mr Angus McCullough KC and Ms Rachel Toney, who appeared as Special Advocates. I express the Court's gratitude to them all for their written and oral submissions.

Factual background

The Appellant was born on 21 December 1988 in a non-European country and became a national of that country at birth. He came to the United Kingdom (“UK”) with his parents and was registered as a British citizen in 2004. He retains his first nationality.

In spring 2014 the Appellant left the UK and travelled to the non-European country. In winter 2014 he travelled onwards to Syria via Turkey. The Appellant disputes the amount of time that he spent in Syria. The Appellant also claims that, for a significant period while he was in Syria, he was there with a friend who has now returned to the UK. The evidence in OPEN is that in early autumn 2015 the Appellant left Turkey and returned to the non-European country, where he obtained employment and worked in the west of the country.

The Appellant's case is that in spring 2018 he and his friend went to European country A to meet someone known to the UK intelligence services in order to enquire about how they might return to the UK. On returning to the non-European country, the Appellant was denied entry to a second non-European country, which he believes was because the UK government had alerted that country's authorities. He also alleges that he had several email exchanges and a series of meetings with a Foreign and Commonwealth Office (“FCO”) official in European country A, who later claimed to be working for the Secret Intelligence Service (MI6). The Appellant alleges that MI6 were considering offering him the ability to return to the UK some time in the future in exchange for recruiting him as an agent or human source.

The Appellant alleges that his friend was similarly in contact with the FCO. However, the Appellant alleges that, in autumn 2018, his friend unexpectedly flew to the UK where, after being arrested on arrival, he was informed that the police did not intend to take further action against him. The Appellant's case is that this event triggered a rushed decision-making process that led to the deprivation decision in his case.

The Respondent has neither confirmed nor denied the Appellant's allegations relating to his and his friend's contact with UK intelligence services. This is in accordance with the long-standing policy of the British government known as “NCND”.

On 26 October 2018 the Secretary of State, having considered the advice of the Security Service (MI5) contained in a ministerial submission, concluded that it would be conducive to the public good to deprive the Appellant of his British citizenship. The OPEN basis for the deprivation decision was that the Appellant had travelled to Syria, where he aligned himself with, and engaged in fighting with, an Al-Qaeda (“AQ”) aligned group.

The ministerial submission to the Secretary of State

We have seen, as did SIAC, an OPEN summary of the ministerial submission which was provided to the Secretary of State before the decision was taken to deprive the Appellant of his British citizenship. The submission made the recommendation that he should be deprived of his citizenship in accordance with section 40(2) of the 1981 Act. In the alternative, should the Secretary of State disagree with that recommendation, it was recommended that a Temporary Exclusion Order (“TEO”) should be imposed.

Attached to the ministerial submission were six annexes: Annex A was the ‘Security Service recommendation to deprive and intelligence case’; Annex B was a ‘Mistreatment risk statement’; Annex C was a ‘Consideration of risk factors’; Annex D was a ‘Consideration of ECHR [i.e.European Convention on Human Rights] issues’; Annex E was the ‘Notice of intention to make a deprivation order’ (for signature); and Annex F was a Security Service ‘Statement on the threat to national security from individuals with UK links who have aligned with an AQ-aligned group in Syria’, dated May 2017.

Paras 6–9 of the ministerial submission summarised the national security case for deprivation of citizenship. The submission agreed with the assessment of the Security Service that, should the Appellant return to the UK, he posed a threat to the UK's national security and would pose a risk to members of the public in the UK as a result of terrorism-related activity.

At paras 11–13, the submission carried out an Article 2/3 ECHR assessment. It noted that, notwithstanding the legal position that the ECHR does not have extra-territorial effect in such cases, it has been the long-standing, publicly stated practice of the Home Office to consider the Article 2 and 3 risks associated with deprivation of citizenship, and only to recommend it if they consider that it would not give rise to a real risk of a breach of Article 2 or 3. This practice was confirmed publicly in an ECHR Memorandum during the passage of the Immigration Act 2014. The assessment in the Appellant's case was that there were no substantial grounds to believe that a real risk of mistreatment contrary to Article 2 or 3 arose as a direct result of his being deprived of his British citizenship while in the non-European country.

Other evidence before SIAC

The evidence before SIAC included the First Statement on behalf of the Secretary of State.Para 8 of the OPEN version of that Statement referred to the fact that there had been consideration of potentially exculpatory material. The content of that material can only be addressed in the CLOSED judgment.

There was also an Amended Security Service Note.Para 30 of that Note stated that the AQ statement (at Annex F to the ministerial submission) formed only part of the recommendation which was submitted to the Secretary of State. The statement accompanied a summary of the intelligence which concerned B4 specifically. It was therefore incorrect to say that the Secretary of State was provided with “no individualised information” about the risk to national security posed by B4.

Material legislation

Section 40(2) of the 1981 Act provides that the Secretary of State “may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.”

Section 40(3) provides that the Secretary of State may by order deprive a person of a citizenship status which results from registration or naturalisation if he is satisfied that the registration or naturalisation was obtained by means of (a) fraud, (b) false representation, or (c) concealment of a material fact.

Section 40(5) provides that, before making an order under that section, the Secretary of State must give the person written notice specifying (a) that he has decided to make an order, (b) the reasons for the order, and (c) the person's right of appeal under section 40A(1), or under section 2B of the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”).

Ordinarily, a person who is given notice under section 40(5) may appeal against that decision to the First-Tier Tribunal: see section 40A(1). But subsection (2) provides that subsection (1) shall not apply to a decision if the Secretary of State certifies that it was taken wholly or partly in...