"L1" (Claimant/Appellant) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Laws,Lord Justice Lewison,Lord Justice Beaston
Judgment Date03 December 2015
Neutral Citation[2015] EWCA Civ 1410
Date03 December 2015
CourtCourt of Appeal (Civil Division)
Docket NumberT2/2014/3560

[2015] EWCA Civ 1410

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION

(MR JUSTICE IRWIN, UPPER TRIBUNAL JUDGE JORDAN, MR CHRISTOPHER GLYN-JONES)

Royal Courts of Justice

Strand

London, WC2A 2LL

Before:

Lord Justice Laws

Lord Justice Lewison

Lord Justice Beatson

T2/2014/3560

"L1"
Claimant/Appellant
and
Secretary of State for the Home Department
Defendant/Respondent

Mr M Chamberlain QC (instructed by Birnberg Peirce) appeared on behalf of the Appellant

Mr J Glasson QC (instructed by the Treasury Solicitor appeared on behalf of the Respondent

Lord Justice Laws
1

This is an appeal with permission granted by Richards LJ on 5th February 2015 against a decision of the Special Immigration Appeals Commission ("SIAC"), Irwin J presiding, given on 4th August 2014. There is also by direction of Richards LJ an associated application for permission to seek judicial review, as regards which we shall as necessary constitute ourselves as a Divisional Court of the Queen's Bench Division. I will explain these procedural niceties shortly.

2

SIAC's judgment contains a crisp outline of the bare facts of the case as follows:

"1. The Appellant entered the United Kingdom in June 1991 at the age of 20. He came from the Sudan and is a Sudanese national. He successfully claimed asylum and was granted exceptional leave to remain ['ELR'] in 1993 and indefinite leave to remain ['ILR'] in 2000. In 2003 he became a naturalised British citizen and acquired the right of abode. He remained in the UK for periods from 2003 to 2009, but with extended periods spent in Sudan. He has a wife and five children, the first four born in the UK and the fifth born in Sudan in May 2011."

I should interpolate to say that Mr Chamberlain QC, for the appellant, showed us material by which the appellant asserts that his permanent home has been in the United Kingdom since 1998. Irwin J continued:

"2. In May 2010 a submission was put to the Home Secretary asking her to make a decision in principle that the next time the Appellant left the UK he would be deprived of his British citizenship and excluded from the country. On 21 June 2010 the Home Secretary took such a decision in principle. That deprivation and exclusion was to be put into effect if and when the Appellant left. On 3 July 2010, the Appellant and his family did leave the UK to fly to Sudan intending to remain there on his account, for the duration of the school holiday. On Monday 5 July, a second submission was written for the Home Secretary requesting that the decision in principle should be put into immediate effect. On 6 July the Home Secretary signed a notice of decision to make a deprivation of citizenship order and on Monday 12 July a deprivation of citizenship order was signed. On the same day the Home Secretary personally took the decision to exclude the Appellant from the UK, on the grounds that his presence was not conducive to the public good. The order was finalised on the following day."

3

Irwin J stated the central issue in the case thus at paragraph 15:

"Was it lawful and within the powers of the SSHD, on the facts of this case, to await the departure of the Appellant from the United Kingdom and then to serve notice of deprivation of citizenship and notice of exclusion from the United Kingdom followed by the making of an order depriving him of citizenship and an order excluding him from the United Kingdom, with the intention that the Appellant should remain out of the United Kingdom during the currency of his appeals."

4

There has been in this case what Irwin J was to call a "complex web of litigation". It is summarised at paragraphs 3 to 14 of his judgment. It included a hearing in this court on 4th February 2013 when I expressed concern at material tending to indicate facts which underlie what has now become the central issue in this case. The procedural upshot has been that the SIAC judgment now appealed before us dealt in effect with the single issue identified, as I have shown, at paragraph 15 of the judgment. It did so under two procedural heads: the determination of a preliminary issue in an appeal by the appellant against the deprivation of his British citizenship, and also as an application to SIAC for a statutory review under section 2C of the Special Immigration Appeals Commission Act 1997, as amended by the Justice and Security Act 2013. The review was of the Secretary of State's decision to exclude the appellant from the United Kingdom. Following Richards LJ's ruling, we deal with the former as a Divisional Court determining an application for judicial review permission and we grant permission; we deal with the latter as an appeal to this court in the ordinary way.

5

The preliminary issue raised the question whether it was an abuse of power for the Secretary of State to act as she did because to her knowledge her action deprived the appellant of an in-country right of appeal against deprivation of citizenship to which it is said by statute he was entitled. The application to set aside the Secretary of State's certificate relating to the appellant's exclusion from the United Kingdom in effect raises the same issue.

6

The foundation of the Secretary of State's actions complained of in these proceedings has its origin in a recommendation from the Security Service to the Home Office that the appellant should be deprived of British nationality and excluded from the United Kingdom on the ground that his presence here was not conducive to the public good. The recommendation is referred to in the third witness statement of Mr Philip Larkin, head of an unit within the Office for Security and Counter Terrorism at the Home Office. He gave oral evidence before SIAC, as he had in other cases. Irwin J indicated at paragraph 18 that the Commission found him to be a "scrupulous and honest witness". In his third witness statement he said that the Security Service recommendation informed the Home Office that the appellant was:

"6. … a long term subject of interest of the Security Service and was assessed to be a committed Islamist extremist who over a significant period of time, had been involved in a range of terrorist, extremist and other illegal activities, both in the UK and overseas. It was further assessed that he was an associate of a wide range of significant Islamist extremists, both in the UK and worldwide.

7. The recommendation letter also set out that L1 had largely resided in Sudan since 2005. He had travelled to the UK in 2009 with one of his wives and it was assessed that he intended to remain in the UK permanently. The Security Service were concerned that L1 would seek to increasingly use the UK as a platform from which he would be able to engage in terrorism-related activity and support the activities of other extremists. Accordingly, the Security Service assessed that the deprivation of L1's British nationality and his exclusion from the UK would be in the interests of national security by disrupting the risk which L1 posed in the UK."

7

Irwin J referred to the first submission that had been made to the Secretary of State on 26th May 2010 by the Deputy Director of Special Cases at the UK Border Agency to the effect that the appellant should be deprived of his citizenship when he left the UK and then excluded from the country. Irwin J continued:

"23. In further detail, the Home Secretary was informed that L1 was a committed extremist with a significant period of engagement and a broad range of 'terrorist, extremist and other illegal activities both in the UK and overseas'. The submission recorded that the national security case against him was 'strong'. The Security Service assessment was that deprivation and exclusion would be conducive to the public good and 'would further have a disruptive effect upon his activities and ability to engage in terrorism-related activity in future'. The team making the submission had considered a number of factors to assess whether the recommended action was appropriate. Those considerations were set out in an annex but:

'… in summary these include the nature and strength of his connections to the UK – including whether depriving him of British citizenship would render him stateless; whether his family living in the UK, including those who are British citizens; the strength of his continuing links to Sudan; ECHR issues – [L1] has serious (potentially terminal if untreated) health problems and our action will deny him access to NHS medical treatment; the potential community reactions in the UK to [L1's] deprivation and exclusion; and issues relating to the UK's relations with Sudan and foreign relations generally.'"

Irwin J continued at paragraph 24:

"The conclusion was that the risk L1 posed to the UK national security outweighed any of the contrary issues identified."

8

Much consideration was given to the appellant's personal circumstances and to the means of giving him notice of the intention to deprive him of citizenship. At length, on 21st June 2010 the Secretary of State took the decision to deprive, at least to exclude in principle, intending that those actions be put into effect if and when the appellant left the country, and so they were. Mr Larkin gave...

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1 books & journal articles
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