S1, T1, U1 & V1 v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Lord Justice Lindblom,Lord Justice Briggs |
| Judgment Date | 16 June 2016 |
| Neutral Citation | [2016] EWCA Civ 560 |
| Docket Number | Case No: T2/2013/0512 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 June 2016 |
[2016] EWCA Civ 560
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE SPECIAL IMMIGRATION APPEALS COMMISSION
SC106107108109
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Briggs
Lord Justice Burnett
and
Lord Justice Lindblom
Case No: T2/2013/0512
Stephanie Harrison QC & Amanda Weston (instructed by Birnberg Peirce & Partners) for the Appellants
Robin Tam QC & Rosemary Davidson (instructed by Government Legal Department) for the Respondent
Charlie Cory-Wright QC and Zubair Ahmad (instructed by Special Advocates' Support Office) as Special Advocates
Hearing dates: 15th, 16th & 17th March 2016
Approved Judgment
The appellants are four members of the same family who have been deprived of their British citizenship pursuant to section 40 of the British Nationality Act 1981 ("the 1981 Act"). S1 is the father of T1, U1 and VS1's wife is a naturalised British citizen and they have two other children who are British citizens, a daughter who is now 24 years old and a disabled son who is now 19 years old. The reason for the Home Secretary's decision was that she considered that the appellants were active members of a terrorist organisation, namely Lashkar-e-Tayibba ["LeT"]. LeT is a proscribed terrorist organisation in the United Kingdom, the United States and Pakistan. She also considered that they were supporters of Al Qaeda. The notices of the decisions by the Home Secretary to deprive the appellants of their citizenship were dated 31 March 2011 and the orders of deprivation followed on 2 April 2011. The notices of decision were served at the last known address of the appellants, which was in the United Kingdom, as required by the statutory scheme.
The family had moved to Pakistan in September 2009, a fact which was known to the Home Secretary. All four of the appellants are Pakistani nationals and were thus dual nationals, although before SIAC they contested that fact. One of the complaints advanced on behalf of the appellants by Miss Harrison QC is that the Home Secretary would not allow them to return to the United Kingdom to prosecute their appeals. On 21 December 2012 the Special Immigration Appeals Commission, presided over by Mitting J, ("SIAC") dismissed their appeals against the Home Secretary's decisions to remove their British citizenship. This is their appeal against SIAC's decision.
In the course of the proceedings before SIAC preliminary arguments had been advanced by the appellants that were considered in determinations dated 27 October 2011 and 26 July 2012. The first preliminary issue determined by SIAC was whether the removal of the appellants' British citizenship would render them stateless. Section 40(2) of the 1981 Act prohibits the removal of citizenship if that is the result. SIAC determined that issue against the appellants. Although that conclusion was challenged in the appellants' notice as their first ground of appeal, it has fallen away. SIAC's decision has been vindicated by the fact that Pakistan has not only accepted that each is its national, but has issued passports to them. The second preliminary issue was whether the appeals should be allowed because it was impossible to determine them fairly as a result of the appellants' absence from the United Kingdom. For reasons to which I shall return, SIAC determined that issue against the appellants.
Permission to appeal was initially refused by Jackson LJ on paper but was granted at a renewed oral application by Floyd LJ on 26 November 2013. At a directions hearing on 10 April 2014 he stayed the appeal until after judgments had been given by the Supreme Court in Pham v Secretary of State for the Home Department. Those judgments were handed down on 25 March 2015: [2015] UKSC 19; [2015] 1 WLR 1591. The reason why these appeals were stayed was because at the heart of the appeal in the Pham case was the correct approach to questions of statelessness for the purposes of section 40(2) of the 1981 Act. The parties believed that the case might have had an impact on the statelessness question and thus the outcome of these appeals. The Pham case traversed other important matters relevant to the exercise of the power to remove British citizenship, which led Miss Harrison to reformulate the issues she wished to argue on behalf of the appellants. There was no application to amend the appellants' notice, but instead the reformulated issues emerged in the appellants' skeleton argument. In particular, fresh arguments by reference to EU law and proportionality (whether in play under EU or domestic law), were advanced. Mr Tam QC objected on behalf of the Home Secretary to the appellants being allowed to argue these points. He submits that they should have been raised by way of amendment to the appellants' notice shortly after the Supreme Court gave judgment. He complained, albeit with moderation, that the skeleton argument in which these points were developed was itself late (he is right about that) and so placed the respondent's team in difficulty.
Mr Tam is correct in submitting that the new grounds should have been advanced in an amended appellants' notice, with permission being sought in a timely fashion well in advance of the hearing of the appeals. That said, we granted permission to Miss Harrison to argue the full amplitude of the points raised in her skeleton argument. The reasons for my concluding that was appropriate in this case may be stated shortly. First, there would be an air of unreality in considering these appeals without applying the principles set out in Pham. Secondly, Mr Tam did not seek to suggest that the Home Secretary was prejudiced, as opposed to being inconvenienced, by the late entry of the new points into the appeal. Accordingly, the issues for consideration in this appeal may be distilled to the following:
i) Can the SIAC decisions survive Pham on the grounds that (a) the common law requires the removal of British citizenship to be proportionate, given the severe adverse consequences for the individual concerned; (b) EU law may apply (with a similar approach to proportionality) and would also import greater procedural protections in cases involving national security than the common law and statute provide in proceedings in SIAC;
ii) A discrete argument is raised on behalf of S1's wife and youngest son by reference to the decision of the Luxembourg Court in Zambrano v Office national de l'emploi ( Case C-34/09) [2012] QB 265. Depriving S1 of his British citizenship, and thus as a consequence his EU citizenship, is said to deprive S1's wife and their son of the genuine enjoyment of the substance of the rights which their status as EU citizens conferred;
iii) Did SIAC err in concluding that the procedure by which the justification for the decisions to remove British citizenship was challenged in the SIAC appeals accorded with the principles of fairness and natural justice guaranteed by the common law and EU law;
iv) Did SIAC err in concluding that the appellants' residence in Pakistan at the time of the deprivations of citizenship meant that they were outside the jurisdiction of the European Convention on Human Rights ("the Convention") for the purposes of article 1, so that their arguments that they were at risk of treatment contrary to articles 2 and 3 of the Convention at the hands of both the LeT and the Pakistani authorities failed for want of jurisdiction;
v) Was SIAC correct to conclude, on the assumption that it was wrong on the question of jurisdiction, that there was no such risk in any event.
vi) Was the removal of the appellants' British citizenship compatible with article 8 of the Convention, in particular having regard to its impact upon S1's wife and two youngest children whose practical ability to exercise their right to live in the United Kingdom without S1 is said to have been impaired.
The appellants' case is that their fairness arguments ought to have succeeded before SIAC in the course of the appeal with the consequence that the appeals should have been allowed. To forestall the argument that SIAC could not allow the appeals in those circumstances within the statutory scheme, the appellants have issued parallel judicial review proceedings against the Home Secretary and SIAC. The appellants attack and seek to quash the Home Secretary's decision to refuse to allow them to return to the United Kingdom to conduct their appeals. They also seek to quash SIAC's decision refusing to accede to their arguments relating to fairness advanced at the second preliminary hearing.
The appeal before SIAC was conducted in three distinct environments: open hearings, closed hearings and private (confidential hearings). The first preliminary hearing, concerning the question of statelessness, was conducted entirely in open. For the purposes of the appellants' second preliminary argument, namely that the appeals should be allowed because it was unfair to proceed in their physical absence from the United Kingdom, the majority of the argument and the written evidence was considered in the ordinary way in an open hearing. But SIAC also conducted a confidential hearing at the request of the appellants who wished to deploy evidence and argument in private. Private in this sense means that the parties were present and privy to the evidence and argument, but the public was excluded from that part of the hearing. SIAC is empowered by rule 43 of the Special Immigration Appeals Commission (Procedure) Rules 2003 ("the 2003 Rules") to accede to such a request from an appellant. It was not...
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