R (GI) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Rix,Lord Justice Lewison |
| Judgment Date | 04 July 2012 |
| Neutral Citation | [2012] EWCA Civ 867 |
| Docket Number | Case No: T3.2011.2046 & T3.2011.1988 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 July 2012 |
[2012] EWCA Civ 867
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
(ADMINSTRATAIVE COURT LIST)
(MITTING J)
CO/9760/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Rix
and
Lord Justice Lewison
Case No: T3.2011.2046 & T3.2011.1988
Mr Hugh Southey QC and Ms Amanda Weston (instructed by Birnberg Peirce & Partners) for the Appellant
Mr Tim Eicke QC and Mr Rory Dunlop (instructed by The Treasury Solicitor ) for the Respondent
Hearing date: 21st May 2012
INTRODUCTION
This is an appeal, with permission granted by Maurice Kay LJ on 8 March 2012, against the dismissal by Mitting J in the Administrative Court on 19 July 2011 of the appellant's claim for judicial review. The proceedings were brought to challenge the decision of the Secretary of State, made on 14 June 2010, to exclude the appellant from the United Kingdom on the ground that it was conducive to the public good to do so.
The appellant was born in the Sudan. He arrived in the United Kingdom as a child and was granted indefinite leave to remain as the child of a refugee, namely his father. In 2000 he became a naturalised British citizen. In 2009 he was arrested and charged with a public order offence arising out of his participation in protests against Israeli military action in Gaza. He was bailed to appear at the magistrates court but in October 2009, before he was required to surrender to his bail, he left the United Kingdom for Sudan. It appears that he has remained there ever since, a fugitive from justice in this country.
By letter dated 11 June 2010 the Secretary of State notified the appellant of her intention to make an order pursuant to s.40(2) of the British Nationality Act 1981 (the 1981 Act) depriving him of his British citizenship on the ground that to do so would be conducive to the public good. On 14 June 2010 the Secretary of State signed an order to that effect. By letter of the same date the Secretary of State intimated her decision, made personally, to exclude the appellant from the United Kingdom. The reasons were stated as follows:
"Her Majesty's Government assesses that you
• are involved in terrorism-related activities;
• have links to a number of Islamic extremists."
The decision to exclude was taken under the Crown's common law prerogative powers. It was not an "immigration decision" within the meaning of s.82(2) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), and so did not attract any statutory right of appeal. Hence this challenge by way of judicial review. The appellant does however enjoy a statutory right of appeal to the Special Immigration Appeals Commission (SIAC) against the decision to deprive him of his citizenship. I will set out or summarise the relevant statutory references below. The appellant has launched such an appeal. The effect of the decision to exclude him from the United Kingdom, if it stands, means of course that the appellant can only conduct his statutory appeal from outside the country. The principal thrust of the judicial review claim is that this state of affairs is legally impermissible.
THE LEGISLATION
The power to deprive a person of his British citizenship was introduced for the first time by s.40 of the 1981 Act. S.40(2) provides in its present form:
'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."
S.40(4):
"The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless."
S.40(5):
"Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying—
(a) that the Secretary of State 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."
A right of appeal to the First-Tier Tribunal (Immigration and Asylum Chamber) against a decision to make an order under s.40(2) (not the order itself) is given by s.40A(1) of the 1981 Act. By s.40A(2), and s.2B of the Special Immigration Appeals Commission Act 1997, such an appeal is to SIAC in a case where (as happened here) the Secretary of State certifies that the decision has been made wholly or partly in reliance on information which should not be made public in the interests of national security. An appeal under s.40A of the 1981 Act was given a particular suspensive effect by s.40A(6), as follows:
"An order under s.40 may not be made in respect of a person while an appeal under this section or s.2B of the Special Immigration Appeals Commission Act 1997 –
(a) has been instituted and has not yet been finally determined, withdrawn or abandoned, or
(b) could be brought (ignoring any possibility of an appeal out of time with permission)."
S.40A(6) was however repealed by Schedule 4 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (the 2004 Act). Schedule 2 paragraph 4 of the 2004 Act enacted a new s.40A(3) of the 1981 Act as follows:
"The following provisions of the [2002 Act] shall apply in relation to an appeal under this section as they apply in relation to an appeal under section 82, 83 or 83A of that Act—
(a) section 87 (successful appeal: directions) (for which purpose a direction may, in particular, provide for an order under section 40 above to be treated as having had no effect)."
In the present case the notice given to the appellant under s.40(5) stated:
"Should any appeal in respect of the deprivation of your citizenship be successful, the order depriving you of your citizenship will be treated as never having had effect."
In fact the discretion to give such a direction lies with the First-Tier Tribunal or SIAC, not the Secretary of State. I do not know by what warrant or authority the Secretary of State included this statement in the notice.
Given the scope of the arguments before us I must also set out or summarise some of the provisions dealing with statutory appeals against immigration decisions. Such a decision includes a variation of a person's leave to enter or leave to remain in the United Kingdom where the person has no leave when the variation takes effect (s.82(2)(e) of the 2002 Act); and includes also a revocation of an indefinite leave to enter or remain (s.82(2)(f)). By s.83(2) of the 2002 Act such a variation or revocation was not to have effect while an appeal against it was outstanding or could be brought: so this was a parallel provision with s.40A(6) of the 1981 Act. Like s.40A(6) it was repealed, in this case by the Immigration, Asylum and Nationality Act 2006 (the 2006 Act). However the 2006 Act also introduced a new s.3D into the Immigration Act 1971 (the 1971 Act) as follows:
'(1) This section applies if a person's leave to enter or remain in the United Kingdom—
(a) is varied with the result that he has no leave to enter or remain in the United Kingdom, or
(b) is revoked.
(2) The person's leave is extended by virtue of this section during any period when—
(a) an appeal under section 82(1) of [the 2002 Act] could be brought, while the person is in the United Kingdom, against the variation or revocation (ignoring any possibility of an appeal out of time with permission), or
(b) an appeal under that section against the variation or revocation, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act).
(3) A person's leave as extended by virtue of this section shall lapse if he leaves the United Kingdom.
(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section."
Accordingly since the coming into force of the 2004 Act and the 2006 Act respectively, there have existed (1) in relation to a successful appeal against a decision to deprive a person of citizenship status, a discretion to direct that an order under s.40 of the 1981 Act shall be treated as having had no effect (s.40A(3)(a) of the 1981 Act); and (2) in relation to appeals against decisions to vary limited leave (s.82(2)(e)) of the 2002 Act) or revoke indefinite leave (s.82(2)(f) of the 2002 Act), an automatic extension of the leave while an appeal is pending or could still be brought (s.3D of the 1971 Act). This was the position at the time of the decision and order under s.40 of the 1981 Act in the present case.
There is one other provision relating to appeals under s.82(2)(e) and (f) of the 2002 Act which I should cite. S.92 of the 2002 Act provides:
'(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.
(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2) …, (e), (f) …"
THE FIRST GROUND OF APPEAL
The first ground of appeal (I summarise) is that Parliament has impliedly extinguished the Crown's common law or prerogative power to exclude a person from the United Kingdom pending his appeal against the decision under s.40(2) of the 1981 Act to deprive him of his citizenship status.
The argument as I understand it goes like this.
(1) Under the regime which included s.40A(6) of the 1981 Act (which was repealed as I have said by the 2004 Act) no question of excluding such a person from the United Kingdom...
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