Pham v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Singh,Lord Justice Coulson |
| Judgment Date | 20 September 2018 |
| Neutral Citation | [2018] EWCA Civ 2064 |
| Docket Number | Case No: T2/2017/0561 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 September 2018 |
[2018] EWCA Civ 2064
Lady Justice Arden
Lord Justice Singh
and
Lord Justice Coulson
Case No: T2/2017/0561
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL
IMMIGRATION APPEALS COMMISSION
MITTING J
[2012] UKSIAC 114/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Southey QC and Alex Burrett (instructed by Jd Spicer Zeb) for the Appellant
Robin Tam QC and Natasha Barnes (instructed by Government Legal Department) for the Respondent
Hearing dates: 18–19 July 2018
Approved Judgment
Principal issue: need to show current risk of harm for citizenship deprivation
The appellant, by birth a Vietnamese national, now appeals from the summary dismissal by Mitting J, sitting in the Special Immigration Appeals Commission (“SIAC”), of the appellant's appeal against the order (“the Deprivation Order”) dated 22 December 2011 of the Secretary of State under section 40(2) British Nationality Act 1981 (as amended) (“BNA”). The Deprivation Order deprived the appellant of his British nationality on the ground that deprivation was conducive to the public good. The Secretary of State made the order on the ground that:
the Security Service assess that you are involved in terrorism-related activities and have links to a number of Islamist extremists.
The relevant provisions of section 40 BNA and its legislative history appear in the appendix to this judgment.
The evidence was that the appellant had travelled, in 2011, to Yemen, that he had stayed there for six months and while there had received terrorist training, including weapons training, and had engaged in terrorism-related activities there. The assessment was that, in consequence, he was a committed Islamist extremist. The appellant initially contended that he had travelled to Yemen not for terrorism-related purposes, but for entirely innocent purposes. There was lengthy litigation about whether the Secretary of State's Deprivation Order would make him stateless and so was prohibited under section 40(4) BNA. The Supreme Court held that he was not relevantly stateless because he was not made de jure stateless by the decision. He was born Vietnamese, but Vietnam, when it learned what the British government told the Vietnamese government about him, was determined that he should not return to Vietnam and so refused to acknowledge his Vietnamese citizenship. He was thus de facto stateless even though he was not de jure stateless.
The appellant appealed against the Deprivation Order to SIAC, and thence to this Court. He argued that the Deprivation Order was disproportionate under EU law. But the scope of the appeal from SIAC was limited and no EU law point arose on it, so the decision of the Supreme Court was restricted to the meaning of statelessness for the purposes of section 40 BNA. The Supreme Court decided that a person was not stateless for that purpose if he had de jure nationality in another country, even if he was de facto stateless: see Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591. The Supreme Court adopted a flexible approach to principles of judicial review, particularly where fundamental rights are at stake. Thus the intensity of review was unlikely to differ whether it was under domestic law or EU law. In R (Lumsdon) v Legal Services Board [2015] UKSC 41 [23] to [74], the Supreme Court considered the principle of proportionality and explained the test for proportionality under EU law, which differs from that under the European Convention on Human Rights.
The Supreme Court remitted the appellant's appeal from the Deprivation Order to SIAC, and the judge's order now under appeal was on that remitted application. The primary question of law both before SIAC and on this appeal is whether a Deprivation Order can be made where the appellant no longer poses a current risk of harm to the UK because, since the Secretary of State's deprivation order and the date of the Supreme Court's decision, the appellant, having admitted certain terrorism charges, has been sentenced in the US to 40 years' imprisonment and is currently serving that term in a high security prison there.
The appellant was extradited to the United States subsequent to the original SIAC hearing. He was prosecuted in the US on an indictment containing five counts. In 2016, subsequent to the decision of the Supreme Court, by a plea bargain he pleaded guilty to three counts. The conduct which he admitted by his guilty pleas substantially encompassed the basis of the Secretary of State's Deprivation Order. He admitted in summary that he had provided and attempted to provide material and resources to Al Qaeda in the Arabian Peninsula (“AQAP”); that he had conspired to receive military-type training from and on behalf of AQAP (a militant organisation); and that he had, knowingly, carried and used a Kalashnikov assault rifle in furtherance of crimes of violence. As explained, the appellant was sentenced to 40 years' imprisonment. The sentencing judge held that she was satisfied that he had not recanted by the time he arrived back in the UK in July 2011 (some five months before the citizenship deprivation decision), but that he had done so by the time of his arrival in the United States.
The appellant made copious admissions to the US Court. According to the open material, it was part of the Secretary of State's case that the appellant had returned to the UK to conduct operational activity on behalf of AQAP. There is a witness statement from the appellant in which he has admitted, among other serious terrorist activities, being trained in how to make a bomb, with the suggestion that the bomb was to be used to target the arrivals area at Heathrow Airport, and being provided with funds for this attack plan. It was accepted before SIAC that the appellant could not deny serious criminal conduct.
On remittal to SIAC, the Secretary of State applied to strike out the appellant's Notice of Appeal under Rule 11(b) of the SIAC Procedure Rules on the basis that it disclosed no reasonable grounds for an appeal.
Judgment of Mitting J
On the strike-out application, Mr Hugh Southey QC, for the appellant, submitted to the judge that, by the time that the appellant is at liberty again and free to return to the United Kingdom, any risk that the appellant might in the past have posed a risk to national security and public security will have gone. He contended that this factor should be taken into account. There was a balancing exercise to be carried out as Lord Sumption had made clear at [108] of his speech, with which Lord Neuberger, Lady Hale and Lord Wilson agreed, on the appellant's appeal to the Supreme Court, where he held:
Although the full facts have not yet been found, it seems likely that the outcome of this case will ultimately depend on the approach which the court takes to the balance drawn by the Home Secretary between Mr Pham's right to British nationality and the threat which he presented to the security of the United Kingdom. A person's right in domestic law to British nationality is manifestly at the weightiest end of the sliding scale, especially in a case where his only alternative nationality (Vietnamese) is one with which he has little historical connection and seems equally to be of any practical value even if it exists in point of law. Equally, the security of this country against terrorist attack is on any view a countervailing public interest which is potentially at the weightiest end of the scale, depending on how much of a threat Mr Pham really represents and what (if anything) can effectually be done about it even on the footing that he ceases to be a British national. The suggestion that at common law the court cannot itself assess the appropriateness of the balance drawn by the Home Secretary between his right to British nationality and the relevant public interests engaged, is in my opinion mistaken. In doing so, the court must of course have regard to the fact that the Home Secretary is the statutory decision-maker, and to the executive's special institutional competence in the area of national security. But it would have to do that even when applying a classic proportionality test such as is required in cases arising under the Convention or EU law, a point which I sought to make in R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] 3 WLR 1404, paras 31–34.
The judge, in his judgment under appeal, declined to read into Lord Sumption's statement the proposition that the Secretary of State can only determine that the appellant should be deprived of British nationality by balancing those two factors. The judge added:
Of course, his right to citizenship is a weighty right; that I accept, as no doubt did she. At the stage at which Lord Sumption was considering the matter, the appellant had not been extradited to the United States, he had not pleaded guilty and he had not been sentenced. Lord Sumption was, I think, considering what would happen on the basis that it remained necessary to control such risk as the appellant posed to the United Kingdom by measures that could be taken by the British State. ([15]).
The judge recorded that Mr Robin Tam QC, for the Secretary of State, submitted that those were not the only factors that the Secretary of State either was entitled to take into account when she made her decision or would now be entitled to take into account in light of the radically-changed circumstances since her decision. He submitted that the Secretary of State was and remained entitled to take the decision on the simple basis that by his actions the appellant has repudiated his obligation of loyalty to the United Kingdom and it is right that, given the facts that he has...
To continue reading
Request your trial
-
Damache v The Minister for Justice and Equality
...Civ 867). Even more emphatically, the Court of Appeal returned to this issue in Pham v. Secretary of State for the Home Department [2018] EWCA Civ 2064 where Arden L.J., as she then was, said at para. 51: ‘ In the present case, the appellant has over a significant period of time fundamenta......
-
The Manchester Ship Canal Company Ltd v Secretary of State for Environment, Food and Rural Affairs
...appropriate procedural rigour in judicial review cases”: see R (Spahiu) v Secretary of State for the Home Department: Practice Note [2018] EWCA Civ 2064; [2019] 1 WLR 1297, at para. 2, where earlier authorities are set out (Coulson LJ). The present case leads us to repeat that concern. 11......
- R (on the application of Dolan and Others) v the Secretary of State for Health and Social Care and another
-
R KV v Secretary of State for the Home Department
...such as the right to reside in the country of residence and to consular protection: Pham v Secretary of State for the Home Department [2018] EWCA Civ 2064, para 49. He argued that in these circumstances a test of proportionality must be applied to determine whether interference with this r......