R (W2 and IA) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Beatson,Lord Justice Singh,Lord Justice Davis
Judgment Date19 December 2017
Neutral Citation[2017] EWCA Civ 2146
Docket NumberCase No: T3/2017/1253/QBACF
Date19 December 2017

[2017] EWCA Civ 2146

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

MRS JUSTICE ELISABETH LAING DBE

[2017] EWHC 928 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Davis

Lord Justice Beatson

and

Lord Justice Singh

Case No: T3/2017/1253/QBACF

Between:
R (W2 and IA)
Appellants
and
Secretary of State for the Home Department
Respondent

Mr Michael Fordham QC, Ms Stephanie HarrisonQC andMr Anthony Vaughan (instructed by Birnberg Peirce) for the Appellants

Ms Lisa Giovanetti QC and Mr Rory Dunlop (instructed by Government Legal Department) for the Respondent

Mr Ashley Underwood QC and Mr Dominic Lewis (instructed by the Special Advocates' Support Office) appeared as Special Advocates

Hearing dates: 26 and 27 October 2017

Lord Justice Beatson

I. Overview:

1

The issue in this appeal is whether a statutory appeal to the Special Immigration Appeals Commission (“SIAC”) is, in the circumstances of this case, a practical, suitable and adequate alternative remedy to judicial review. The appellants are W2 and his wife IA. They appeal from the order of Elisabeth Laing J dated 24 April 2017. The judge refused them permission to apply for judicial review and interim relief in respect of the decision of the Secretary of State for the Home Department dated 15 October 2016 to make an order under section 40 of the British Nationality Act 1981 as amended (“the 1981 Act”) depriving W2 of his British citizenship with immediate effect while he was out of the United Kingdom. The Secretary of State made the order on the ground that it was conducive to the public good to do so as a result of the threat which he posed to national security. The reason given for the decision that W2 posed a threat to national security was that he was a dual national who was known to have travelled to Syria and was assessed to have been located with ISIL.

2

On 15 October 2016, W2 was located in his country of origin, of which he is also a national. He had travelled there from the United Kingdom in the second half of September 2016. On 16 November 2016, he exercised his statutory right to appeal to SIAC against the decision to make an order depriving him of his British citizenship, and he and his wife filed these proceedings on 3 January 2017. They challenged the deprivation order and sought interim relief requiring the Secretary of State to facilitate the return of W2 to the United Kingdom to pursue his statutory appeal to SIAC.

3

In the context of this case, an important factor is that, had W2 been in the United Kingdom when he was served with the order depriving him of British citizenship, his removal to his country of original nationality might have been precluded by article 3 of the European Convention on Human Rights (“ECHR”), having regard to the case law relating to that country and the fact that, if the authorities in that country knew him to be suspected by the United Kingdom of involvement in terrorism, he would be at real risk of inhuman or degrading treatment or punishment contrary to article 3 at their hands.

4

The judge refused permission to apply for judicial review because (see [41]) she concluded that the grounds raised either are unarguable or raise issues which can and should properly be dealt with by SIAC in a statutory appeal. She also concluded (see [45]) that this was not an appropriate case for interim relief because the court should not second guess (without proper investigation) the Secretary of State's assessment of the risk to national security which W2 poses, or make an order which might well have the effect of pre-judging the appeal by making him irremovable although the merits of his appeal had not been investigated.

5

Although many points were raised during the hearing, for the reasons I shall give I consider that ultimately the case turns on two of them. The first is a question as to the scope of SIAC's jurisdiction that arises from the decision of this court in S1 and others v Secretary of State for the Home Department [2016] EWCA Civ. 560, [2016] 3 CMLR 37, and its impact on two other decisions; R (G1) v Secretary of State for the Home Department [2012] EWCA Civ. 867, [2013] QB 1008, R (L1) v Secretary of State for the Home Department [2015] EWCA Civ. 1410.

6

The second question concerns the procedure for determining whether W2 should be able to return to the United Kingdom pending his appeal in SIAC so that he can participate in it; that is whether his return is necessary in order for the appeal to be “effective”. The second question arises because, whereas in proceedings by way of judicial review the court may order interim relief, SIAC is not able to do so. It was submitted on behalf of the Secretary of State that SIAC is able to address the underlying question of whether W2's return to the United Kingdom should be facilitated. It could do so in an expedited appeal by him under section 2 of the Special Immigration Appeals Commission Act 1997 (‘the SIAC Act 1997’) against a refusal by the Secretary of State to grant him leave to remain (“LTE”) outside the rules. It was also argued that the issue of whether W2 could effectively participate in his appeal under section 2B of the SIAC Act 1997 against the decision to deprive him of British citizenship if he is not in this country could be considered as a preliminary issue in that appeal. It was said that, in these ways, the evidence and full argument on this matter could be considered by the specialist body designated by Parliament to consider national security cases.

7

Examining the second question involves considering the impact of the decision of the Supreme Court in Kiarie v Secretary of State for the Home Department and R (Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, [2017] 1 WLR 2380 (“ Kiarie and Byndloss”), decided on 14 June 2017, about two months after the decision of the judge. That decision considered the need to show that an out of country appeal would be “effective” before deporting a foreign national convicted of serious crimes.

8

Because of the perceived risk to W2 of treatment contrary to article 3 in his country of origin, this court continued directions made by Flaux LJ in an order dated 3 February 2017 that nothing must be published which could lead to the identification of W2, IA or their family members, their national origins and nationalities, and their current location. In this judgment, I describe such information in generalised language so as to preclude the need for a confidential judgment to protect that information. The parties have agreed that this means that a confidential judgment is not needed in this case.

9

The court received evidence and submissions in OPEN and CLOSED conditions. I have also prepared a CLOSED judgment. I, however, emphasise that my conclusions are entirely based on the reasons in this OPEN judgment. I reached these conclusions without taking into account any of the CLOSED materials or submissions. Nothing in the CLOSED materials tells against the conclusions I have reached on the OPEN materials.

10

W2 and IA were represented by Michael Fordham QC, Stephanie Harrison QC and Anthony Vaughan. The Secretary of State was represented by Lisa Giovanetti QC and Rory Dunlop. The special advocates were Ashley Underwood QC and David Lewis. Their written and oral submissions have been of considerable assistance and I thank them and their legal teams for all that they have done.

11

The remainder of this judgment is organised as follows. Parts II and III summarise the factual and procedural background and the legislative framework. Parts IV and V summarise the grounds upon which judicial review was sought and the judge's decision. Parts VI and VII summarise the grounds of appeal and discuss the scope of the appeal. Part VIII contains my analysis, including that of the decisions of this court in L1 and S1 and that of the Supreme Court in Kiarie and Byndloss. For the reasons I give in Part VIII, I have concluded that the judge did not err in concluding that, in the circumstances of this case, the challenge to the deprivation order was in substance a challenge to the prior decision to make the order, and (at [51] – [69] below) that SIAC had jurisdiction to consider it. I have also concluded (see the discussion at [70] ff. below) that SIAC will be able to consider whether it is necessary in the circumstances of this case for W2 to be in the United Kingdom for his appeal to be effective in a challenge to a refusal by the Secretary of State to grant him LTE pending that appeal, which can be heard together with a preliminary issue in the appeal on this issue.

II. The factual and procedural background:

12

My summary of the facts is primarily taken from the judgment below. W2 was granted British citizenship on 10 February 2006 as the spouse of IA, a naturalised British citizen. They and their five children lived in this country. In the second half of September 2016 W2 travelled to his country of origin, of which, as I have stated, he is also a national. He had booked a return flight about a month later.

13

On 13 October 2016, the Secretary of State sent a notice of her decision to deprive W2 of his British citizenship to his last known address, the address in the United Kingdom where IA was still living with their children. The letter was opened and read by IA, who on 14 October telephoned W2 and told him about it. The order depriving W2 of his British citizenship was signed on behalf of the Secretary of State on 15 October 2016. The Secretary of State's open national security submission shows that it was known that W2 was in his country of origin at the time of the deprivation decision on 13 October 2016.

14

The Secretary of State's open national security submission assessed W2 as travelling...

To continue reading

Request your trial
6 cases
  • R D4 v Secretary of State for the Home Department
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 30 July 2021
    ...of State for the Home Department [2016] EWCA Civ 560, [2016] 3 CMLR 37 and R (W2) v Secretary of State for the Home Department [2017] EWCA Civ 2146, [2018] 1 WLR 2380, we had no jurisdiction to consider whether the service of notice to file was valid. The appeals succeeded in any event on......
  • Shamima Begum v Special Immigration Appeals Commission
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 16 July 2020
    ...of Appeal in AN v Secretary of State for the Home Department [2010] EWCA Civ 869 and W2 v Secretary of State for the Home Department [2017] EWCA Civ 2146; [2018] 1 WLR 2380. 40 At [171] SIAC concluded that there were three reasons why Kiarie was not relevant: (i) it concerned a different ......
  • Secretary of State for the Home Department v P3
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 8 November 2021
    ...in the United Kingdom for Appeal 1 to be effective, relying on a statement in W2 v Secretary of State for the Home Department [2017] EWCA (Civ) 2146; [2018] 1 WLR 2380. He claimed that a refusal of entry clearance would be unlawful under section 6 of the Human Rights Act 1998 (‘the HRA’) a......
  • R Abdullah Muhammad Rafiqul Islam v Secretary of State for the Home Department
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 7 August 2019
    ...to enter in order to allow Ashraf to prosecute any such appeal. In any event, as the Court of Appeal demonstrated in R (W2) v. Secretary of State for the Home Department [2017] EWCA Civ 2146; [2018] 1 W.L.R. 2380, an appeal to SIAC pursuant to s.2 of the Special Immigration Appeals Commiss......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT