G1 v Secretary of State for the Home Department

Repeal of the statutory provision suspending a citizenship deprivation order pending appeal did not abrogate the Crown’s prerogative power to exclude the former citizen once the order was made. Neither procedural fairness nor the right to an effective remedy ordinarily requires the state to facilitate an excluded person’s return so that a statutory appeal may be pursued in person.

European Union law did not govern deprivation proceedings which lacked any cross-border element or exercise of an EU right. Differences between appeal rights following citizenship deprivation and revocation of an alien’s leave therefore did not constitute unlawful EU discrimination. Article 14 of the Convention was not engaged without a relevant substantive Convention right.

The appellant, a naturalised British citizen who had left the United Kingdom for Sudan while on bail, was deprived of citizenship under section 40(2) of the British Nationality Act 1981. On the same day, the Secretary of State exercised the Crown’s prerogative power to exclude him as conducive to the public good. He retained a statutory appeal to the Special Immigration Appeals Commission against the deprivation decision but would have to pursue it from abroad.

Mitting J dismissed his claim for judicial review. The appellant appealed on the grounds that legislation had impliedly abrogated the prerogative power, that exclusion made his appeal procedurally unfair and ineffective, and that the difference between his position and that of an alien appealing against revocation of leave was unlawfully discriminatory. He also sought to advance a new argument concerning the contents of the deprivation notice.

1. Appeal dismissed unanimously. The Crown possessed an ample prerogative power to exclude an alien unless Parliament had abrogated or modified it. The relevant question was not whether Parliament had authorised the prerogative, but whether the statutory scheme had displaced it.

2. Repeal of section 40A(6) of the British Nationality Act 1981 removed the former suspension of a deprivation order while an appeal was pending or available. Parliament enacted no equivalent of section 3D(2) of the Immigration Act 1971 for citizenship appeals. Nothing in the remaining provisions therefore restricted the prerogative power once the deprivation order had been made. Legislative materials indicating an intention that deprivation and deportation proceedings could run concurrently could not qualify the unqualified repeal.

3. The common law presumes no right to be physically present at a statutory appeal. An in-country appeal can be guaranteed by legislation, but no such guarantee applied here. Procedural fairness is shaped by the governing statute, and section 92 of the Nationality, Immigration and Asylum Act 2002 showed that Parliament regarded out-of-country appeals as capable of being fair and effective. The appellant bore the burden of establishing his positive claim that the Secretary of State should facilitate his return outside the Immigration Rules. He had not done so.

4. European Union law did not apply. The case contained no cross-border element and involved no actual or attempted exercise of an EU right. Rottmann v Bayern had to be read cautiously and could not import EU rules into wholly domestic citizenship deprivation proceedings. Consequently, the right to an effective remedy and the EU prohibitions on nationality discrimination did not require the appellant’s admission for his appeal.

5. The proposed comparison with an alien whose leave had been revoked was in any event doubtful because citizenship and immigration leave were rights of different kinds. Article 14 of the Convention was not engaged through Article 8: the claim to return for an appeal did not concern the enjoyment of private or family life.

6. The fresh notice argument was unarguable. Regulations governing notices of “immigration decisions” did not apply to citizenship deprivation. The applicable requirements under section 40(5) of the British Nationality Act 1981 had been fulfilled.

1. Court of Appeal (Civil Division): The court dismissed the appeal unanimously: [2012] EWCA Civ 867.
2. Administrative Court: Mitting J dismissed the appellant’s claim for judicial review on 19 July 2011. No citation for that judgment is stated.