Secretary of State for the Home Department v Lisa Smith
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing,Lewis LJ,Underhill LJ |
| Judgment Date | 05 April 2023 |
| Neutral Citation | [2023] EWCA Civ 376 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2021-000698 |
[2023] EWCA Civ 376
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Lewis
and
Lady Justice Elisabeth Laing
Case No: CA-2021-000698
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
Mr Justice Jay, Upper Tribunal Judge Pitt and Mrs Jill Battley
SC/169/2020
Royal Courts of Justice
Strand, London, WC2A 2LL
Cathryn McGahey KC and Natasha Barnes (instructed by The Treasury Solicitor) for the Appellant
Hugh Southey KC and Lara Smyth (instructed by Birnberg Peirce & Partners Solicitors) for the Respondent
Hearing date: 21 February 2023
Approved Judgment
This judgment was handed down remotely at 11.00am on 5 April 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is the Secretary of State's appeal against a decision of the Special Immigration Appeals Commission (‘SIAC’). The Respondent (‘R’) appealed to SIAC against the Secretary of State's decision on 12 September 2019 (‘the Decision’) personally to direct that R be excluded from the United Kingdom. The notice of the Decision explained that ‘it was assessed that you travelled to Syria and aligned with ISIL/Daesh. It is therefore assessed that your presence in the UK would present a genuine, present and a sufficiently serious threat to UK public security’.
The Secretary of State made the Decision under regulation 23(5) of the Immigration (European Economic Area) Regulations 2016, 2016 SI No 1052 (‘the EEA Regulations’). The Secretary of State certified the Decision under regulation 38(2)(a) of the EEA Regulations. I summarise the EEA Regulations in paragraphs 17–21, below.
In a judgment given after a remote hearing on 3 July 2020, SIAC (Chamberlain J, sitting alone) made two decisions. First, he lifted a stay on R's appeal (the Secretary of State did not oppose that). SIAC had imposed that stay in order to give R the opportunity to apply to be registered as a British citizen. Second, he decided an issue about who could act as a Special Advocate in R's appeal. Chamberlain J also gave directions dated 10 July 2020 for the determination of ground 1 of R's notice of appeal as a preliminary issue. Mr Southey told the Court at the hearing of this appeal that R opposed the stay because she did not want to apply to be registered as a British citizen.
In paragraph 48 of his judgment, Chamberlain J explained that R had clarified that her argument was not that she was a British citizen, but that her father had been one, and she would have been one had her parents been married when she was born, and since there was no good reason for treating those whose parents were married any differently from those whose parents were not, ‘she was entitled, by virtue of Article 14 read with Article 8 ECHR to be treated for the purposes of any decision to exclude her as if she were a British citizen’ (original emphasis). In paragraphs 44–45, below, I say more about SIAC's approach to the preliminary issue.
After a hearing on 21 April 2020, SIAC allowed R's appeal (paragraph 52), by deciding that preliminary issue in her favour.
On this appeal, the Secretary of State was represented by Ms McGahey KC and Ms Barnes, and R by Mr Southey KC and Ms Smyth. I thank counsel for their written and oral submissions. Ms McGahey was not an author of the Secretary of State's skeleton argument.
Paragraph references are to SIAC's judgment, or, if I am referring to an authority, to that authority, unless I say otherwise.
For the reasons given in this judgment, I have reached six conclusions.
i. The question asked in the preliminary issue was liable to, and did, lead SIAC astray.
ii. SIAC should have asked whether the Secretary of State would have treated a British-Irish dual national who had acquired her British citizenship at birth, and who was assessed to have travelled to Syria and aligned with ISIL/Daesh in substantially the same way as R was treated.
iii. If SIAC had asked that question, the answer is that the Secretary of State would have done so.
iv. R was not therefore treated differently on the ground that her parents were not married at birth from the appropriate comparator.
v. If that is wrong any difference in treatment was justified.
vi. The Secretary of State's appeal should be allowed.
The facts
SIAC does not seem to have heard any evidence, and found few facts. R's evidence consisted of a brief, undated, witness statement (which, the parties confirmed at the hearing of this appeal, was served the day before the hearing). She relied on a report of two DNA tests, which showed that there was a very high probability that ‘George Martin DOB 17 Aug 1954’ was her father, a page from George Patrick Martin's Irish passport, his birth certificate, and parts of two seamen's documents, said to have been documents owned by her paternal grandfather and great grandfather.
It was said to be common ground that R was born in Ireland (paragraph 2). R's father, George Patrick Martin, was born in Belfast on 17 August 1954. According to his birth certificate, his parents were George Patrick Martin and Sarah Martin. ‘Documents very recently disclosed by [R] reveal that [R's] grandfather on her father's side was George Patrick Martin, born in Belfast on 5 th January 1924. He was a merchant seaman, as was the man who was probably his father, George Patrick Martin born in Belfast on 5 th May 1884. These records show that George Martin ([R's] grandfather) was British in 1967’ (paragraph 6).
R's mother was said to have been born in the Republic of Ireland. She has never been a British citizen. R was born outside the United Kingdom on 17 February 1987. Her parents were not married. They have not married since (paragraph 7). According to SIAC, ‘Little more is known about [R's father] beyond the fact that on 13 th February 1982 he was issued with a passport by the Republic of Ireland stating that he was an Irish national. That would not of course preclude dual nationality’ (paragraph 8).
SIAC drew an inference ‘from the fact that [R's] grandfather was British, or at least had dual nationality, in 1967 …that her father was British at the time of his birth in 1954’ (paragraph 11). In paragraph 12 it said that there was nothing to contradict R's evidence that her father had not renounced his British citizenship.
SIAC did not investigate what social or familial connections, if any, R might have with the United Kingdom. SIAC does not appear to have been invited to do so, perhaps because there was no relevant evidence. In paragraph 18 it said that R lived ‘in a border town in the Republic of Ireland where there are historical and political sensitivities, she identifies as Irish, and would choose not to take an oath of allegiance to the British Crown’. The source of those statements is paragraph 5 of the undated witness statement. She did not say that she would refuse to make a pledge of allegiance, nor, indeed, that she would refuse to swear an oath of allegiance.
The legislative framework
The effect of the relevant statutory provisions about citizenship is not in dispute, so I can summarise them briefly. If R's parents had been married when she was born, she would automatically have been a Citizen of the UK and Colonies by descent (see section 5 of the British Nationality Act 1948 (‘the 1948 Act’) read with section 32(2) of the 1948 Act). On the commencement of the British Nationality Act 1981 (‘the BNA’), she would, by section 11, have become a British citizen on 1 January 1983.
Citizenship law was amended over time to mitigate the effects of provisions which are now seen as discriminatory, by enabling people who had not automatically acquired citizenship at birth to apply to be registered as a British citizen (section 41). R meets the general and other conditions in section 41. She is therefore entitled to be registered as a British citizen if she applies for registration. There is now no requirement that she be of good character. There is a difference, therefore, as the Secretary of State accepts, between R's position and that of a person whose parents were married when she was born. That person would have acquired British citizenship automatically at birth, whereas, if R wishes to become a British citizen (and she appears to be ambivalent about that), she must apply to be registered as a British citizen. If she were to apply to be registered, she would have to make an oath and pledge of allegiance (see section 42(3) and Schedule 5 to the BNA), unless the Secretary of State decided, by reason of exceptional circumstances, to exempt her from that requirement (see section 42(6)).
Section 12 of the BNA enables a person to renounce her British citizenship, in short, as long as the Secretary of State is satisfied that, if the person renounces that citizenship, she will not become stateless. Section 40(2) of the BNA gives the Secretary of State power to deprive a person of her British citizenship if the Secretary of State is satisfied that would be conducive to the public good, provided that the Secretary of State is also satisfied that deprivation will not make that person stateless (section 40(4)).
The EEA Regulations 2016
Regulation 11(1) of the EEA Regulations gives an EEA national a right of entry into the United Kingdom if she produces a valid passport or identity card issued by an EEA state. ‘EEA national’ is defined in regulation 2(1) as ‘a national of an EEA State who is not also a British citizen…’.
Regulation 23(5) of the EEA Regulations gives the Secretary of State power, if she considers that the exclusion of the EEA national is justified on the grounds of public policy,...
To continue reading
Request your trial
-
The King (on the application of M) v Secretary of State for the Home Department
...and articulated: see in this regard the judgment of Elizabeth Laing LJ in Secretary of State for the Home Department v Smith [2023] EWCA Civ 376. Otherwise, there is a risk that time spent on the preliminary issue becomes time 26 This is not to say that, in the present case, the defendant ......