GI v Secretary of State for the Home Department

The repeal of the statutory suspension of a deprivation order did not impliedly preserve British citizenship pending an appeal. It permitted deprivation and the exercise of the prerogative power to exclude a person on conducive grounds while the appeal remained pending. No general legal principle required the Secretary of State to facilitate the claimant’s return to the United Kingdom to conduct the appeal. Article 14 of the Convention was inapplicable because neither citizenship nor re-entry to the United Kingdom was a Convention right. The claim was dismissed.

The claimant, a naturalised British citizen residing in Sudan, challenged the Secretary of State’s decision to exclude him from the United Kingdom on national-security grounds after an order depriving him of British citizenship had been made. He had a statutory appeal to the Special Immigration Appeals Commission against deprivation, but the exclusion decision was challengeable only by judicial review.

He argued that the statutory scheme impliedly excluded exclusion while the deprivation appeal was pending, that fairness or European Union law required arrangements for his return to conduct the appeal, and that exclusion unlawfully discriminated against him as a former British citizen. The court granted permission on the first two grounds and rejected the third as unarguable.

1. Exclusion pending deprivation appeal. The statutory language authorised the Secretary of State to make a deprivation order before the appeal was heard. The repeal of section 40A(6) of the British Nationality Act 1981 removed the former suspensive effect of an appeal. Section 40A(3)(a), instead, gave SIAC power to direct that the order be treated as having had no effect. The statutory scheme therefore did not impliedly exclude the prerogative power to exclude on conducive grounds while the appeal was pending (paras [5]–[7]).
2. Return to the United Kingdom. The claimant identified no sufficient common-law or European Union legal basis for requiring arrangements for his return. The court considered that European Union law might not be engaged where deprivation was based on national security, and it was at least highly doubtful that it required physical presence in the Member State during the challenge (para [8]).
3. Even assuming a principle requiring an opportunity to give evidence in a manner permitting SIAC to hear and observe the claimant, the claimant had to show that a safe third-country arrangement was unavailable. The evidence about obtaining a Sudanese passport was equivocal, and it was more likely than not that he could obtain one. The Secretary of State could not be criticised for refusing a step which might frustrate a lawful national-security exclusion if the deprivation decision were upheld (paras [9]–[11]).
4. Discrimination. Article 14 of the Convention did not apply. Citizenship and a right to re-enter the territory of a signatory state were not Convention rights, and the claimant was in the same position as a person who had never held British citizenship but was abroad and subject to a free-standing exclusion decision (para [4]).
5. The claim for judicial review was dismissed (para [12]).