Secretary of State for the Home Department v P3
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Irwin,Lady Justice Elisabeth Laing DBE,Lord Justice Bean |
| Judgment Date | 08 November 2021 |
| Neutral Citation | [2021] EWCA Civ 1642 |
| Docket Number | Case No: T2/2021/0741 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1642
Lord Justice Bean
Lady Justice Elisabeth Laing
and
Sir Stephen Irwin
Case No: T2/2021/0741
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Special Immigration Appeals Commission
Royal Courts of Justice
Strand, London, WC2A 2LL
David Blundell QC and James Stansfeld (instructed by Government Legal Department) for the Appellant
Stephanie Harrison QC, Edward Grieves and Stephen Clark (instructed by Wilsons) for the Respondent
Ashley Underwood QC and Dominic Lewis (as Special Advocates supported by the Special Advocates' Support Office) for the Respondent
Hearing dates: 13 and 14 July 2021
Approved Open Judgment
Introduction
This is an appeal by the Secretary of State from a decision of the Special Immigration Appeals Commission (‘SIAC’). SIAC allowed P3's appeal pursuant to section 2(1)(a) of the Special Immigration Appeals Commission Act 1997 (‘the 1997 Act’) against the Secretary of State's decision to refuse his application for entry clearance (‘Decision 2’). I will refer to the parties to this appeal as ‘the Secretary of State’ and ‘P3’ respectively.
The background is that the Secretary of State had already decided to deprive P3 of his British citizenship when he was outside the United Kingdom (‘Decision 1’). P3 appealed to SIAC against Decision 1 (‘Appeal 1’). He then applied to the Secretary of State for entry clearance to the United Kingdom in order to be able to take part in Appeal 1 in person. His appeal against Decision 2 was heard by SIAC on 7 and 8 December 2020. In an OPEN judgment handed down on 11 February 2021, SIAC allowed Appeal 2.
On this appeal P3 was represented by Miss Harrison QC, Mr Grieves and Mr Clark. The Secretary of State was represented by Mr Blundell QC and Mr Stansfeld. I thank counsel for their comprehensive written and oral submissions. I also thank the teams instructing them, who have evidently all worked hard to prepare this appeal.
The issues
As the case was argued, the main issue on this appeal is whether SIAC adopted the correct approach to its role as a specialist appellate tribunal. The second main issue is whether SIAC's approach to the application for entry clearance was wrong in law. To be fair to SIAC, its role has been somewhat clarified a result of the decision of the Supreme Court in Begum v Secretary of State for the Home Department [2021] UKSC 7; [2021] 2 WLR 556, which was handed down after the hearings in SIAC and after it had handed down its OPEN and CLOSED judgments. There is a question, however, about the extent to which Begum is binding on those issues, as I will explain.
This appeal has been expedited. Producing an OPEN judgment in a case in which the Court has seen CLOSED material is complicated and time consuming. I need not describe them, but I apologise for the fact that these complexities have led to inevitable delay in the circulation of the draft OPEN judgment. As a consequence of the order for expedition, of the imminence of the end of the legal term and of those complexities, which increased the length of time between the hearing and the date when the draft OPEN judgment could be handed down, this judgment is as short as possible. I have limited full citations of authority. I have also referred to counsel's main arguments only rather than to their detailed submissions.
The constitution which heard this appeal includes two former Chairmen of SIAC. I have found it necessary to make one or two observations at the very end of this judgment, which were prompted by the points raised by counsel in their oral submissions and by the Court's discussion of the issues after the hearings. The OPEN representatives were invited to make further written submissions on this issue after the hearing, and did so.
The facts
References in this and in the next section of the judgment to paragraphs are to the paragraph numbers in SIAC's OPEN judgment, unless I say otherwise. P3 is a national of Iraq. He was born there on 29 March 1968. His wife (‘Witness A’) and three minor children are all British citizens. The children were born between June 2002 and July 2012. The eldest child is now, therefore, an adult. P3 has lived in the United Kingdom since 1997. Witness A joined him in the United Kingdom in 2001. P3 was naturalised as a British citizen in February 2003, and Witness A, in October 2007.
P3 was outside the United Kingdom between 1 October 2017 and 5 November 2017. The Secretary of State decided on 2 November 2017 to deprive him of his nationality on the grounds that it would be conducive to the public good. Decision 1 was served on 28 December 2017, and the order depriving him of his nationality was made two days later. P3 had left the United Kingdom again on 21 November for Iraq. He was planning to return on 31 December 2017. He has been in Iraq since then. P3 was told that Decision 1 was made because he was assessed ‘to have links with Iranian intelligence services’. He was later told that it was also assessed that he ‘was prepared to accept tasking’.
P3 applied for entry clearance on 28 November 2019 on the grounds that it is ‘essential’ for him to be present 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’) as it would breach articles 2, 3, 8 and 13 of the European Convention on Human Rights (‘the ECHR’). As SIAC recorded (paragraph 3) ‘the focus throughout the hearing was on article 8’. P3 ‘set out in very clear detail’ the adverse effect which the Decision 1 was said to be having on him and on his family (paragraph 13). I note that it was Decision 1, not Decision 2, which was said to be having this effect. That seems to be a correct interpretation of the contentions in the entry clearance application (see, in particular, paragraph 16 of that application). That approach was echoed in Miss Harrison QC's oral submissions about the effect of Decision 1.
SIAC also recorded that the Secretary of State ‘interpreted P3's application, in our view correctly, as being both (i) an application for entry clearance outside the Rules [sc the Immigration Rules (‘the Rules’)], and (ii) a human rights claim’. The Secretary of State refused both applications on 7 February 2020, and a request for reconsideration on 8 June 2020. P3 submitted much material to the Secretary of State in support of the initial application, and a little more in support of the application for reconsideration (a further report from Professor Katona). Miss Harrison handed up the index of the documents which supported the entry clearance application. It had 149 items in it, and was 671 pages long. As she pointed out, all of this material post-dated Decision 1. As she also pointed out in her oral submissions on this appeal, SIAC had even more material than that. I summarise that material in paragraphs 21–23, below.
In Decision 2, the Secretary of State said that she had no information to contradict the assertion that P3's separation from his family was ‘likely to have a negative impact on your family’. However, P3 had often been in Iraq before Decision 1 was made. Prolonging the separation ‘may be considered harsh’, but was not unjustifiably harsh because of the ‘serious threat’ which P3 posed to national security. SIAC said (paragraph 14) that the Secretary of State ‘well understood that the article 8 case was being advanced’ on the basis of P3's deteriorating mental health and the impact of his separation from Witness A ‘who was struggling to cope’, and the impact on his children.
The Secretary of State said, in paragraph 11.a of Decision 2, that as P3 was outside ‘the UK's jurisdiction for article 8 purposes, it is assessed that for jurisdictional reasons your Article 8 ECHR rights are not engaged. However the Article 8 ECHR rights of your family are engaged as they are living in the UK and these rights will be considered below’. The Secretary of State said that there was still ‘a degree of physical contact and communication between P3 and his family. The evidence with the entry clearance application showed that his family visited P3 every 6 months in Iraq. Before the protests in Iraq, they had WhatsApp calls every night. From early 2017 until Decision 1, P3 had worked in Iraq for four to six weeks at a time before returning to the United Kingdom for two to three weeks. During P3's absences, his nephew provided support in person and P3 provided support on the telephone.
The Secretary of State said that article 8 was a qualified right. Interference with article 8 rights in the interests of national security was expressly permitted. The Secretary of State acknowledged that the refusal of entry clearance would have an impact on P3's family. The Secretary of State's assessment was that if P3 were admitted to the United Kingdom, there would be a ‘serious risk to the UK’. Any interference with the article 8 rights of his family was ‘necessary and proportionate to mitigate that threat’. The Secretary of State considered the application outside the Rules and refused it on the grounds that the consequences of the refusal would not be unjustifiably harsh. The Secretary of State also considered section 55 of the Borders Citizenship and Immigration Act 2009. Decision 1 had no adverse impact on the status of Witness A or...
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