U3 v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing,Lady Justice Carr,Lord Justice Peter Jackson |
| Judgment Date | 14 July 2023 |
| Neutral Citation | [2023] EWCA Civ 811 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: CA-2022-000838+839 |
and
[2023] EWCA Civ 811
Lord Justice Peter Jackson
Lady Justice Carr
and
Lady Justice Elisabeth Laing
Case Nos: CA-2022-000838+839
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Special Immigration Appeals Commission
(Chamberlain J, Upper Tribunal Judge Perkins, Mr Philip Nelson CMG)
SC/153/2018 and SC/153/2021
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephanie Harrison KC, Edward Grieves KC, Stephen Clark and Ronan Toal (instructed by Wilson Solicitors LLP) for the Appellant
Neil Sheldon KC and Jennifer Thelen (instructed by The Treasury Solicitor) for the Respondent
Tom Hickman KC, George Molyneaux and Rayan Fakhoury (instructed by Freshfields Bruckhaus Deringer LLP) for the Intervener
Ashley Underwood KC and Jennifer Carter-Manning KC (instructed by the Special Advocates Support Office) for the Special Advocates
Hearing dates: 26, 27 and 28 April 2023
OPEN Approved Judgment
This judgment was handed down remotely at 11.00am on 14 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The question of law at the heart of this appeal is what functions the Special Immigration Appeals Commission (‘SIAC’) has when it hears an appeal against a decision of the Secretary of State to deprive a British citizen of her nationality on the ground that she is a risk to national security. The answer depends on the meaning of section 2B of the Special Immigration Appeals Commission Act (‘the 1997 Act’) read in its context, and on a correct understanding of two decisions, in particular: Secretary of State for the Home Department v Rehman [2001] UKHL 29; [2003] 1 AC 153 (‘ Rehman’) and Begum v Secretary of State for the Home Department [2021] UKSC 7; [2022] AC 765 (‘ Begum’). Rehman did not concern section 2B. As I will explain, Begum did. The appeal also concerns SIAC's powers under section 2 of the 1997 Act when it considers a human rights appeal against a later refusal of entry clearance.
After a hearing lasting a week between 29 November and 3 December 2021, SIAC dismissed the appeals of the Appellant (‘U3’) against decisions of the Secretary of State to deprive her of her British citizenship (‘decision 1’) and to refuse her entry clearance (‘decision 2’). I will refer to those appeals as ‘appeal 1’ and ‘appeal 2’ respectively. On this appeal, U3 was represented by Ms Harrison KC, Mr Grieves KC, Mr Toal, and Mr Clark. The Secretary of State was represented by Mr Sheldon KC and Ms Thelen. The intervener, JUSTICE, was represented by Mr Hickman KC, Mr Molyneaux and Mr Fakhoury. I thank all counsel for their written and oral submissions. There was also a CLOSED hearing, which was attended by the Special Advocates and by counsel for the Secretary of State. None of the issues which we were asked to consider in that hearing has any bearing on the reasoning in this judgment.
In outline, U3's counsel argued that SIAC had taken too narrow a view of its powers, by limiting itself to asking, in short, whether, in making decisions 1 and 2 on the grounds of national security, the Secretary of State had made a public law error. U3 also argued that SIAC should have made various findings of fact and that had it done so, it would, or might, have allowed U3's appeal. That approach was broadly supported by JUSTICE. The Secretary of State, by contrast, defended SIAC'S approach.
Paragraph references are to SIAC's OPEN judgment, unless I am referring to an authority.
The issues on this appeal are issues of law. It is convenient therefore, first, to summarise the legal position, so as to provide a context for the arguments that SIAC misdirected itself. I will then summarise SIAC's reasoning. I will say more about the submissions in the course of the last part of this judgment, in which I will analyse and decide the issues. In summary, I have reached three broad conclusions.
i. The Supreme Court's reasoning in Begum about SIAC's role on a section 2B appeal was necessary to its overall decision and is therefore binding.
ii. SIAC's functions on an appeal are somewhat different from the functions which SIAC understood it had, and significantly broader than the Secretary of State submitted that they were.
iii. SIAC, nevertheless, did not materially err in law in its approach to its functions in the appeals in this case.
The law
The distinction between an appeal and judicial review
The 1997 Act distinguishes between the apparently unqualified right of appeal conferred by section 2B (‘a person may appeal to SIAC…’) and rights to apply for statutory review conferred by sections 2C-2E. There are no express limits on that right of appeal. By contrast, when, under sections 2C-2E, SIAC considers whether an impugned decision should be ‘set aside’, it is required to ‘apply the principles which would be applied on an application for judicial review’.
General Medical Council v Michalak [2017] UKSC 71; [2017] 1 WLR explains some of the differences between an appeal and an application for judicial review. The claimant was a doctor. She complained to an Employment Tribunal (‘ET’) that the appellant and its officers had discriminated against her on the grounds of her race in the course of its fitness to practise procedure. There was a preliminary issue about whether the ET had jurisdiction over her claim under section 120 of the Equality Act 2010. The answer depended on whether the acts she complained of were subject by virtue of an enactment to ‘an appeal or proceedings in the nature of an appeal’. The ET held that it had jurisdiction, because while steps taken in the course of the GMC's complaints procedure were amenable to judicial review, the appellant did not have a right of appeal against them, and judicial review did not amount to ‘proceedings in the nature of an appeal’. The Employment Appeal Tribunal allowed the GMC's appeal, but this court reversed that decision. The Supreme Court upheld the decision of this court.
Lord Kerr gave a judgment with which the other members of the Supreme Court agreed. In paragraph 20, he said that ‘an “appeal” (if it is not qualified by any words of restriction) is a procedure which entails a review of an original decision in all its aspects. Thus, an appeal body or court may examine the basis on which the original decision was made, assess the merits of the conclusions of the body or court from which the appeal was taken and, if it disagrees with those conclusions, substitute its own. Judicial review, by contrast, is, par excellence, a proceeding in which the legality of or the procedure by which a decision was reached is challenged…in the human rights field, the proportionality of a decision may call for examination in a judicial review proceeding…But an inquiry into the proportionality of a decision should not be confused with a full merits review’. He cited paragraph 272 of R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69; [2016] AC 1355.
In his view, judicial review ‘even on the basis of proportionality, cannot partake of the nature of an appeal’ (paragraph 21). A complaint of discrimination illustrated the point. A tribunal considering such a complaint had to ‘conduct an open-ended inquiry into that issue’. Whether there was discrimination in fact depended on the judgment of the tribunal. It could not be answered by looking at the reasons of the alleged discriminator, and deciding whether or not what he did was within the range of reasonable responses. ‘The latter approach is the classic judicial review investigation’. On a judicial review, the High Court ‘merely either declares the decision to be unlawful or quashes it. It does not substitute its own decision for that of the decision-maker. In that sense, a claim for judicial review does not allow the decision of the GMC to be reversed. It would be anomalous for an appeal or proceedings in the nature of an appeal to operate under those constraints. An appeal in a discrimination case must confront directly the question whether discrimination has taken place, not whether the GMC had taken a decision which was legally open to it’ (paragraph 22, original emphasis). Lord Kerr's conclusion was that judicial review in the context of that case was not in the nature of an appeal.
The correct approach to criticisms of a court's treatment of evidence
The appeal to this court from SIAC is an appeal on point of law. It is convenient now to summarise the approach which this court takes to criticisms of a judge's treatment of the evidence in appeals when the test is whether or not the first instance decision is ‘wrong’. That approach is well established. I emphasise that that approach does not apply to this appeal. The approach to such criticisms in this appeal must be even more stringent. In other words, if a challenge to a judge's treatment of the evidence could not succeed on the first type of appeal, it certainly could not succeed on an appeal on a point of law. Two decisions are relevant: Fage UK Limited v Chobani [2014] EWCA Civ 5; [2014] FSR 29, paragraph 114, and Volpi v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48, paragraph 2. The last four points in paragraph 2 of the second decision are especially pertinent here.
i. ‘An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.’
ii. ‘…The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2023-10-11, UI-2023-001877
...Court of Appeal was not called on to determine the issue, some of the statements made in recent decisions such as E3 (2023), U3 v SSHD [2023] EWCA Civ 811, Shyti v SSHD [2023] EWCA Civ 770, and Ahmed v SSHD [2023] EWCA Civ 1087 to some extent muddy the waters and do not help to clarify the ......
-
Mr Syed Tahseen Ahmed v Secretary of State for the Home Department
...UKUT 00115 (IAC). The issue has also been considered by the Court of Appeal, albeit in the context of SIAC appeals, in U3 v Secretary of State for the Home Department [2023] EWCA Civ 811 at paragraphs 51 to 75. In circumstances where anything that this Court said about the approach would n......
-
SIAC Can Make Findings In Deprivation Appeals
...v Secretary of State for the Home Department & Anor [2023] EWCA Civ 811, the Court of Appeal resolved the purported conundrum formed by the notion that, whilst deprivation appeals (before SIAC) are governed by administrative law principles, they also involve the consideration of evidence th......
-
Applying Begum Principles To Non-National Security Deprivation Appeals
...prepared in draft but before it was handed down, the Court of Appeal gave judgment in U3 v Secretary of State for the Home Department [2023] EWCA Civ 811 (this is analysed here). After inviting and receiving written submissions from the parties as to the impact of U3, SIAC confirmed that th......