U3 v Secretary of State for the Home Department

Heard on 20 and 21 November 2024

Lord Reed ( with whom Lord Hodge, Lord Lloyd-Jones, Lord Sales and Lord Stephens agree):

This appeal is concerned with the approach that the Special Immigration Appeals Commission (“SIAC”) should take to disputes about matters which are relevant to the assessment of national security, in appeals concerned with the deprivation of British citizenship and the refusal of leave to enter the UK. More specifically, it raises questions concerning the effect of this court's judgment in R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7; [2021] AC 765 (“ Begum”), and the earlier decision of the House of Lords in Secretary of State for the Home Department v Rehman [2001] UKHL 47; [2003] 1 AC 153 (“ Rehman”).

The appellant, who has been given the designation U3 in these proceedings, was a British citizen until the events in issue in these proceedings. She has three children, who are also British citizens. She and her children, and her then husband, who has been given the designation O, lived in ISIL-controlled territory in Syria between August 2014 and October or November 2017.

On 18 April 2017 the respondent, the Secretary of State for the Home Department, gave the appellant notice under section 40(5) of the British Nationality Act 1981 as amended (“the 1981 Act”) that she had decided to make an order under section 40(2) of that Act depriving the appellant of her citizenship on the ground that she was satisfied that deprivation was conducive to the public good. The notice said that “it is assessed that you are a British/Moroccan dual national who has travelled to Syria and is aligned with ISIL. It is assessed that your return to the UK would present a risk to the national security of the United Kingdom”. That assessment was based on advice which the Secretary of State had received from the Security Service and from the Special Cases Unit of the Home Office. The Secretary of State also certified, pursuant to section 40A(2) of the 1981 Act, that her decision was taken partly in reliance on information which in her opinion should not be made public in the interests of national security and in the public interest. That certificate had the consequence that any appeal against the deprivation decision would lie to SIAC rather than to the First-tier Tribunal. The deprivation order was made on 22 April 2017. On 31 May 2018 the appellant appealed against the deprivation decision to SIAC under section 2B of the Special Immigration Appeals Commission Act 1997 as amended (“the 1997 Act”).

In 2019 the children were repatriated to the UK. They have subsequently been cared for by members of the appellant's family. The appellant remains in Syria with her present husband.

On 11 August 2020 the appellant applied to the Secretary of State for entry clearance granting her leave to enter the UK. On 18 December 2020 that application was refused. The Secretary of State issued a national security certificate under section 97 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), similar to that previously issued in relation to the deprivation decision, with the consequence that any appeal against the entry clearance decision would also lie to SIAC rather than to the First-tier Tribunal. On 15 January 2021 the appellant appealed against the entry clearance decision to SIAC under section 2 of the 1997 Act, on the ground that since the decision prevented her from rejoining her children, it was an unjustified interference with the right to respect for family life under article 8 of the European Convention on Human Rights (“the Convention”), and was therefore unlawful under section 6(1) of the Human Rights Act 1998. That appeal was subsequently heard by SIAC together with the appeal against the deprivation decision.

On 4 March 2022 SIAC dismissed both appeals. Applying the principles set out in Begum as it understood them, it identified no basis under public law for interfering with the Secretary of State's assessment that the appellant posed a threat to national security. The deprivation decision was therefore upheld. Furthermore, in the light of that assessment, the interference with the children's rights under article 8, and with the appellant's own rights if those were engaged, which resulted from the refusal of entry clearance, was considered to be proportionate.

A further appeal to the Court of Appeal was dismissed: [2023] EWCA Civ 811; [2024] KB 433. It endorsed SIAC's approach of carefully evaluating all the evidence in the case, applying public law principles to the appellant's challenge to the Secretary of State's assessment of the threat she posed to national security, and refraining from substituting its own national security assessment for that of the Secretary of State.

The appellant now appeals to this court on the ground that the Court of Appeal erred in law in treating SIAC's fact-finding function as relevant only to the application of public law grounds of review to the decision-making of the Secretary of State. The essential proposition for which the appellant contends is that SIAC should reach its own findings of fact on the central “building blocks” of the Secretary of State's national security assessment (including the assessment that the appellant had aligned with ISIL), and, if it considers in the light of its own findings of fact that a different assessment of the threat posed by the appellant to national security is possible, then the appeal should be allowed and the case remitted to the Secretary of State for reconsideration on the basis of SIAC's assessment of the evidence.

Section 40(2) of the 1981 Act provides:

“The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.”

Under section 40(3), the Secretary of State may also deprive a person of a citizenship status which results from registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of fraud, false representation or concealment of a material fact. Subject to an exception described in section 40(4A), section 40(4) prevents the Secretary of State from making a deprivation order if he or she is satisfied that the order would make a person stateless. Before making an order under section 40, the Secretary of State must give the person concerned written notice complying with the requirements set out in section 40(5). One of those requirements is that the person must be told of the right of appeal to the First-tier Tribunal under section 40A(1) of the 1981 Act, or to SIAC under section 2B of the 1997 Act.

Under section 3(1) of the Immigration Act 1971 as amended (“the 1971 Act”), a person who is not a British citizen may be given leave to enter the UK, either for a limited or for an indefinite period, but shall not enter the UK unless given leave to do so in accordance with the provisions of, or made under, that Act. That provision applied to the appellant as a result of the deprivation decision. Section 3(2) of the 1971 Act provides for the Secretary of State to make rules, known as immigration rules, regulating the entry into the UK of persons who are required by the Act to have leave to enter. Under section 3A, the Secretary of State can make orders providing for an entry visa or other form of entry clearance to have effect as leave to enter the UK. The expression “entry clearance” is defined by section 33(1) as meaning a visa, entry certificate or other document which, in accordance with the immigration rules, is to be taken as evidence or the requisite evidence of a person's eligibility, though not a British citizen, for entry into the UK. As envisaged by those provisions, the immigration rules made under section 3(1) provide for persons seeking entry to the UK to apply in advance for entry clearance.

Under section 2(1)(a) of the 1997 Act, a person may appeal to SIAC against a decision if he would be able to appeal against the decision under (among other provisions) section 82(1) of the 2002 Act but for a certificate issued under section 97 of that Act. In the absence of such a certificate, there is a right of appeal to the First-tier Tribunal under section 82(1)(b) of the 2002 Act where the Secretary of State has decided to refuse a human rights claim. Accordingly, where such a certificate has been issued, the refusal of a human rights claim can be the subject of an appeal to SIAC.

Under section 84(2) of the 2002 Act, the only ground on which an appeal under section 82(1)(b) may be brought is that the decision is unlawful under section 6 of the Human Rights Act. That provision also applies where an appeal against the refusal of a human rights claim lies to SIAC, by virtue of section 2(2)(e) of the 1997 Act.

Section 2B of...