L1 v Secretary of State for the Home Department

For an appeal against deprivation of citizenship, the discretion to extend time where there are special circumstances must be exercised fairly and in light of all the circumstances. Deliberately postponing the decision until the appellant was abroad, thereby creating difficulties in notice and service, is material. The fact that the appellant may technically have had enough time to lodge an appeal does not necessarily defeat an extension. Where closed material is relied on in a strike-out application that would dispose of the appeal, fairness requires the exculpatory-search and disclosure procedure in the SIAC (Procedure) Rules 2003. On a permission application, closed reasons should be examined where there is more than a fanciful possibility that they may affect permission.

The Secretary of State decided under section 40(2) of the British Nationality Act 1981 to deprive L1 of his British citizenship. The decision was certified on national-security grounds, so the appeal lay to the Special Immigration Appeals Commission. SIAC held that notice of appeal was late and refused an extension under paragraph 8(5) of the SIAC (Procedure) Rules 2003, striking out the prospective appeal.

The Court of Appeal considered whether SIAC had adopted an impermissibly narrow approach to special circumstances and whether the truncated use of closed material was procedurally unfair. It also considered, but did not determine, an allegation that the Secretary of State had deliberately manipulated the timing of service.

Disposition. Laws LJ gave the leading judgment. Sullivan LJ and McCombe LJ agreed that the appeal should be allowed on Grounds 2 and 3. The matter was remitted to SIAC with a direction that time for appealing be extended. Ground 1 was not determined.

1. Closed material on permission applications. The Court of Appeal has a discretion to inspect closed reasons. It will generally be unnecessary where the open reasons establish that permission should be refused, or where the issue is one of law, practice or procedure independent of closed factual findings. The court should inspect the closed judgment where there is more than a fanciful possibility that permission may turn on it. If it does so, the Treasury Solicitor should arrange disclosure and the Special Advocate should have an opportunity to make representations. This was guidance rather than a necessary basis of the decision.
2. Special circumstances. Under paragraph 8(5) of the SIAC (Procedure) Rules 2003, fairness required consideration of all the circumstances. The Secretary of State had deliberately postponed the deprivation decision until L1 had left the United Kingdom. That decision created or aggravated difficulties in serving notice and informing him of his right of appeal. Those difficulties were material even though SIAC found that, on its view of the facts, L1 could technically have lodged an appeal within the original period. The court did not regard Tofik [2003] EWCA Civ 1138 as authority to the contrary.
3. Closed material and exculpatory review. Where the Secretary of State relies on closed material in a strike-out application which, if successful, would dispose of the appeal, fairness requires the procedural safeguards in paragraphs 10(1) and 10A(2) of the SIAC (Procedure) Rules 2003. These include a reasonable search for exculpatory material and its disclosure in accordance with the Rules. The truncated timetable before SIAC effectively prevented that process. The later identification of potentially exculpatory material reinforced the conclusion that time should have been extended.
4. Ground 1. The court declined to decide whether the Secretary of State’s conduct amounted to an abuse of power. The relevance of closed evidence and the appropriate relief were live issues better determined in proceedings where both open and closed evidence could be considered.
5. McCombe LJ’s additional reasoning. A material dispute about service should ordinarily be resolved after hearing relevant witnesses. The fundamental importance of citizenship supported an extension, and national-security considerations should not count against restoring a right of appeal where doing so did not undermine the continuing exclusion decision.

• Court of Appeal (Civil Division). On 29 July 2013, allowed the appeal on Grounds 2 and 3 and remitted the matter to SIAC with a direction that time for appealing be extended. Ground 1 was left undetermined.
• Special Immigration Appeals Commission. On 3 December 2010, held that the notice of appeal had been given out of time and refused an extension under paragraph 8(5) of the SIAC (Procedure) Rules 2003, resulting in the striking out of the prospective appeal.