The Queen (on the application of W2 and IA) v The Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMrs Justice Elisabeth Laing DBE
Judgment Date26 April 2017
Neutral Citation[2017] EWHC 928 (Admin)
Docket NumberCase No: CO/10/2017
Date26 April 2017

[2017] EWHC 928 (Admin)

IN THE. HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mrs Justice Elisabeth Laing DBE

Case No: CO/10/2017

Between:
The Queen (on the application of W2 and IA)
Claimants
and
The Secretary of State for the Home Department
Defendant

Ms S Harrison QC and Mr A Vaughan (instructed by Birnberg Peirce Ltd) appeared on behalf of W2.

Ms A Weston (instructed by Birnberg Peirce Ltd) appeared on behalf of IA.

Mr R Dunlop (instructed by the Government Legal Department) appeared on behalf of the Respondent.

Mr A Underwood QC (Instructed by Special Advocates' Support Office) appeared as Special Advocate

Hearing dates: 23 rd and 24 th of March 2017

Redacted Approved Judgment (OPEN)

This judgment has been redacted in order to comply with an order made by Flaux LJ on 3 February 2017.

Mrs Justice Elisabeth Laing DBE

Introduction

1

W2 was a British Citizen and is a citizen of �������. On��������� he had booked a return flight for ��������� On ������, the Defendant ('the Secretary of State') seat a notice of her decision to deprive him of his citizenship to W2's last known address. ��������������, ��������. The notice letter was opened and read by IA. She told W2 about it by phone the next day. The reason for that decision was that it was conducive to the public good because of the threat which W2 posed to national security. The submission shows that it was known that W2 was, at that stage, ����. The open evidence filed by the Secretary of State makes it clear that the Secretary of State did not know where in ����he was.

2

��������, the Secretary of State made an order depriving W2 of his citizenship. W2 tried to fly back to the United Kingdom on ������. The Secretary of State had sent out a notice to carriers instructing them not to carry W2, and he was not allowed to board the plane.

3

W2 has exercised his statutory right of appeal to the Special Immigration Appeals Commission ('SIAC'). The appeal is against the decision to make an order depriving him of his citizenship.

4

This is my decision on applications for permission to apply for judicial review and for interim relief by W2 and IA. The decision they challenge in the claim form is the order depriving W2 of his citizenship. The interim relief they seek is an order requiring the Secretary of State to facilitate W2's return to the United Kingdom. That would require the Secretary of State to give W2 some sort of leave to enter, and to pay for his flight (he was prevented from boarding a flight which he had paid for). On 3 February 2017, Flaux LJ ordered a 'rolled-up' hearing of the Claimants' application for judicial review, and of the application for interim relief. He also gave various other directions including for anonymity and for expedition. The parties later agreed that at this hearing the court would consider only the applications for permission to apply for judicial review, and for interim relief

5

W2 was represented by Ms Harrison QC and Mr Vaughan; IA by Ms Weston; and the Secretary of State by Mr Dunlop, The Special Advocate was Mr Underwood QC. I thank all the advocates for their helpful written and oral submissions, some of which were prepared and delivered against tight time constraints, and their legal teams for all the hard work which has evidently been done to prepare for the hearing.

6

I heard submissions in open and in closed. This is my open judgment. I have also prepared a closed judgment. I should make clear that nothing I heard in the closed part of the hearing changes the views I express in this open judgment. The closed material does not undermine, and indeed, reinforces, the views I have reached on the basis of the open material and arguments. I reached the views I express in this open judgment without taking into account any of the closed material.

The grounds

7

The grounds of challenge are that:

a. the order is flawed because the relevant notice provisions were not complied with;

b. the order is flawed because It was not served on W2 until after he had tried to fly back ����;

c. the order is flawed because it was made while W2 was outside the United Kingdom and

i. he thus cannot play a 'meaningful' part in his statutory appeal;

ii. he was not consulted before it was made;

iii. ���������������������������������������������������������������������������������;

d. the order is flawed because the reasoning about article 8 and section 55 of the Borders Citizenship and Immigration Act 2009 in the submission to the Secretary of State on which the decision to make a deprivation order was based is inadequate; and in any event is disproportionate; and

e. the order is a breach of EU law.

Ms Harrison recognised, in oral argument, that I am bound by authority to reject ground c. ii. I record that she reserved her position on it, and I say no more about it.

The relevant legislative provisions

8

Section 40(1) of the British Nationality Act 1981 ('the 1981 Act') defines 'citizenship status'. Section 40(2) confers a power on the Secretary of State by order to deprive a person of his citizenship status if she is satisfied that deprivation is conducive to the public good. Before making such an order the Secretary of State must give the person written notice specifying that she has decided to make the order, the reasons for the order, and the person's right of appeal under section 40A(1) or section 2B of the Special Immigration Appeals Commission Act 1997 ('the 1997 Act') (section 40(5)). W2's right of appeal is to SIAC because the Secretary of State has issued a certificate under section 40A(2) of the 1981 Act (section 2B of the 1997 Act). Section 41(1) of the 1981 Act gives the Secretary of State power to make regulations generally for 'carrying into effect the purposes of this Act'. Section 41(1)(e) specifically authorises provision 'for the giving of any notice required or authorised to be given to any person…'.

9

The British Nationality (General) Regulations 2003 (2003 SI No 548) ('the notice regulations') are made under sections 41(1) and (3) of the 1981 Act. Regulation 10 is headed 'Notice of proposed deprivation of citizenship'. It provides

'(1) Where it is proposed to make an order under section 40 of the Act 1 depriving a person of a citizenship status, the notice required by section 40(5) of the Act to be given to that person may be given—

(a) in a case where that person's whereabouts are known, by causing the notice to be delivered to him personally or by sending it to him by post;

(b) in a case where that person's whereabouts are not known, by sending it by post in a letter addressed to him at his last known address.

(3) A notice required to be given by section 40(5) of the Act shall, unless the contrary is proved, be deemed to have been given—

(a) where the notice is sent by post from and to a place within the United Kingdom, on the second day after it was sent;

(b) where the notice is sent by post from or to a place outside the United Kingdom, on the twenty-eighth day after it was sent, and

(c) in any other case on the day on which the notice was delivered.'

10

Section 40A in its original form provided for an appeal pursuant to section 40A to be suspensive, in the sense that an order depriving a person of his citizenship could not be made while an appeal was pending (section 40A(4)). Section 40A(4) was repealed by the Asylum and Immigration (Treatment of Claimants etc) Act 2004. There was thus a deliberate decision by Parliament that the pursuit of an appeal should no longer prevent the Secretary of State from making an order depriving a person of his citizenship.

11

Section 78 of the Nationality Immigration and Asylum Act 2002 ('the 2002 Act'), which prevents the removal of an appellant while a statutory appeal is pending, does not apply, and, as far as I can see, has never applied, to a section 40A appeal (see section 40A(3) of the 1981 Act). Nonetheless, the Secretary of State appears to have conceded in LI v Secretary of State for the Home Department SC/100/2010, judgment 4 August 2014. that section 78 in effect applied (see paragraph 60 of SIAC's judgment). This concession is reflected at several points in the reasoning Court of Appeal in that case, but I do not understand its legal basis.

12

During the hearing, I gave Mr Dunlop permission to make further written submissions on this issue (after the hearing) if he wished to. GLD sent an email to SIAC about this on 28 March 2017. They explained that their researches had not shown why the apparent concession was made. They said that deprivation on its own would not, then, have enabled the Secretary of State to remove a person from the United Kingdom; a decision to deport that person would also have been necessary. So there was a statutory bar to removal if the person was in-country, though not for the reasons given in the judgments in LI.

13

The effect of the amendments to the 2002 Act made by the Immigration Act 2014 is now that if W2 were returned to the United Kingdom and were to argue that return to �, he would, absent certification, have a right of appeal against any decision to refuse such a claim, and the bringing of an appeal in the exercise of that right would attract the protection of section 78 of the 2002 Act. The in-country right of appeal would not apply if the Secretary of State certified the claim as clearly unfounded under section 94 of the 2002 Act, or made a certificate under section 94B that W2 would not suffer 'serious irreversible harm' pending his appeal.

14

W2's solicitors, in their further written submissions, emphasise that if the Secretary of State were to certify such ������ claim under section 94B(2) of the 2002 Act, that would deprive W2 of an in-country right of appeal. They suggest that on her case, the Secretary of State...

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