S1 v Secretary of State for the Home
Department
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Positive/Neutral Judicial Consideration |
Court
Court of Appeal (Civil Division)
Judgment Date
16 June 2016
Where Reported
[2016] EWCA Civ 560
[2016] 6 WLUK 413
[2016] C.L.Y. 1094
Subject
Immigration
Other related subjects
European Union; Administration of justice
Keywords
Closed material; Deprivation of citizenship; Disclosure;
EU law; In-country right of appeal; National security; Pakistan; Prevention of
terrorism; Proportionality
Judge
Briggs LJ;
Burnett LJ;
Lindblom LJ
Counsel
For the appellants: Stephanie Harrison QC, Amanda Weston.
For the respondent: Robin Tam QC, Rosemary Davidson.
For the Special Advocates: Charlie Cory-Wright QC, Zubair
Ahmad.
Solicitor
For the appellants: Birnberg Peirce & Partners.
For the respondent: Government Legal Department.
For the Special Advocates: Special Advocates Support
Office.
Case Digest
Summary
The Special Immigration Appeals Commission had correctly
upheld a decision to remove British citizenship from a Pakistani family
believed to be active members of a proscribed terrorist organisation while they
were out of the country, thus preventing an in-country appeal. Although the
decision was not governed by EU law, it was nevertheless proportionate and the
disclosure which had been provided satisfied the “essence of the grounds”
obligations.
Abstract
A family with dual Pakistani and British nationality
appealed against a decision of the Special Immigration Appeals Commission
(SIAC) upholding the removal of their British citizenship by the respondent
secretary of state. In parallel proceedings they also sought judicial review of
the refusal to allow them to return to the UK to conduct their appeals.
The father (S1) and three of his children were considered
to be active members of a proscribed terrorist organisation, Lashkar-e-Tayibba
(LeT) and supporters of Al Qaeda. There was open statement evidence that they
held extremist views, had raised money in the UK for LeT, and that when they
moved to Pakistan in 2009 they lived in an area close to a LeT terrorist
training camp.
The appellants submitted that the removal of S1’s
citizenship (1) was disproportionate under common law and was prevented by EU
law which gave them greater procedural protection; (2) deprived his wife and
youngest son of the enjoyment of their rights as EU citizens; (3) was unfair
and contrary to natural justice; (4) was contrary to ECHR art.2,
art.3,
and art.8.
Held
Appeals dismissed and claims for judicial review
dismissed.
(1) The court was bound by the decision in R. (on the
application of G1 (Sudan)) v Secretary of State for the Home Department [2012]
EWCA Civ 867, [2013] Q.B. 1008, [2012] 7 WLUK 99 to hold that EU law did
not govern the decision to deprive the appellants of their British citizenship.
Nevertheless, it had to determine whether SIAC had reviewed the decision of the
secretary of state with sufficient intensity to satisfy the common law test in Pham
v Secretary of State for the Home Department [2015] UKSC 19, [2015] 1 W.L.R.
1591, [2015] 3 WLUK 744, GI and Pham followed, Rottmann v Freistaat
Bayern (C-135/08) EU:C:2010:104, [2010] Q.B. 761, [2010] 3 WLUK 26 applied.
Even if EU law had been applicable, the disclosure of the open material
complied with the “essence of the grounds” obligations noted in ZZ (France)
v Secretary of State for the Home Department [2014] EWCA Civ 7, [2014] Q.B.
820, [2014] 1 WLUK 567, ZZ followed (see paras 21-22, 29, 32-34 of
judgment).
(2) It was clear that SIAC had considered the
proportionality of the decision to remove citizenship and its impact on S1’s
wife and his youngest son, who had developmental delay and learning disability.
Although it had not expressly considered proportionality in its widest sense,
its reference to Directive
2004/38 art.28(3) showed it had considered it in the wider context.
The wife and son could return to the UK at any time and their rights remained
intact. The wife’s desire to keep the family together and need for help in
coping with their son were not sufficient to engage the Zambrano
principle, Ruiz Zambrano v Office National de l’Emploi (ONEm) (C-34/09)
EU:C:2011:124, [2012] Q.B. 265, [2011] 3 WLUK 264 and Harrison v
Secretary of State for the Home Department [2012] EWCA Civ 1736, [2013] 2
C.M.L.R. 23, [2012] 12 WLUK 809 followed (paras 43-45, 46, 50).
(3) There was no evidence of improper motive in the
secretary of state having moved within a short time from decisions to deprive
of citizenship to the deprivation orders themselves. That had been done to
prevent the appellants travelling to the UK but not to hamper their appeals. An
in-country right of appeal could only be guaranteed by Parliament and it had
chosen not to provide one. S1 was free to travel in Pakistan and could
communicate with his solicitors via secure electronic communication channels.
Permission to review the secretary of state’s refusal to allow them to return
to the UK to pursue an in-country appeal was granted and the application
dismissed, GI and L1 v Secretary of State for the Home Department
[2015] EWCA Civ 1410, [2015] 12 WLUK 103 followed (paras 64, 68-71, 79-87).
(4) The decision in Khan v United Kingdom
(Admissibility) (11987/11) (2014) 58 E.H.R.R. SE15, [2014] 1 WLUK 621
provided strong support for SIAC’s conclusion that the appellants had not been
within the UK jurisdiction when the deprivation decision was taken. Wuhab
Khan, East African Asians v United Kingdom (1981) 3 E.H.R.R. 76, [1973]
12 WLUK 84, Al-Skeini v United Kingdom (55721/07) (2011) 53 E.H.R.R. 18,
[2011] 7 WLUK 207 and Bankovic v Belgium (Admissibility) (52207/99) 11
B.H.R.C. 435, [2001] 12 WLUK 302 considered (paras 93, 98-102, 107-108).