S1, T1, U1 & V1 v Secretary of State for the Home Department

EU law does not govern a deprivation of British citizenship where the case has no cross-border element. The common law nevertheless requires review of such a grave decision with an intensity equivalent in practice to proportionality review.

An appellant abroad has no general right to return to the United Kingdom to conduct a citizenship appeal. A refusal to facilitate return may be reviewed, but relief requires clear and compelling evidence that the person cannot participate meaningfully from abroad.

A person settled abroad is not brought within the United Kingdom’s jurisdiction under article 1 of the Convention merely because the state deprives that person of citizenship. The act divests authority rather than exercising the authority or control required for exceptional extraterritorial jurisdiction.

The Home Secretary deprived four members of one family of British citizenship under section 40 of the British Nationality Act 1981. She considered them active members of Lashkar-e-Tayibba, supporters of Al Qaeda and threats to national security. They were dual British and Pakistani nationals living in Pakistan when the decisions and orders were made.

SIAC dismissed their appeals on 21 December 2012. The appellants appealed and also sought judicial review of the refusal to facilitate their return to the United Kingdom.

The principal issues concerned proportionality, the applicability of EU law, the adequacy of disclosure under the closed-material procedure, the derivative-right principle associated with EU citizenship, procedural fairness in an appeal conducted from abroad, and the extraterritorial reach of articles 1, 2, 3 and 8 of the Convention.

1. The appeals and judicial review claim were dismissed. Burnett LJ gave the judgment, with which Lindblom and Briggs LJJ agreed. The result could be reached on the open and confidential material, so no closed appellate hearing was necessary.

2. The court was bound by R (G1) v Secretary of State for the Home Department [2013] QB 1008 to hold that EU law did not govern these deprivation decisions. The cases lacked any cross-border element. Following Pham v Secretary of State for the Home Department [2015] UKSC 19, however, the gravity of removing citizenship required common-law review of an intensity equivalent in practice to EU proportionality review. SIAC had considered proportionality. Given its finding of a real national-security threat, the impact on the family and the suggested availability of surveillance or terrorism-prevention measures did not make deprivation disproportionate.

3. Even if EU disclosure law applied, the appellants had received the essence of the grounds against them. They knew that they were alleged to be active members of LeT, linked to Al Qaeda, involved in fundraising, associated with a location containing a terrorist training camp and assessed as holding extremist views. The procedure therefore met the minimum standard identified in ZZ (France), although supporting evidence could lawfully remain undisclosed to protect national security.

4. The Zambrano principle did not assist. It is directed to measures which in fact compel an EU citizen to leave Union territory. The British wife and son remained free to enter and live in the United Kingdom or elsewhere in the Union. A desire to preserve family unity and practical difficulty in coping without the deprived person did not engage the principle.

5. Neither statute nor the common law gave the appellants a right to return to conduct their SIAC appeals. SIAC had no jurisdiction over the deprivation orders or their timing, and rule 4(3) of the Special Immigration Appeals Commission (Procedure) Rules 2003 did not empower it to secure an appellant’s admission. Judicial review of a refusal to facilitate return was possible only in rare circumstances supported by clear and compelling evidence that meaningful participation from abroad was impossible. The appellants’ general and insufficiently particularised evidence fell well short of that standard.

6. The appellants, who were settled in Pakistan, were outside the United Kingdom’s jurisdiction for article 1 of the Convention. None of the recognised exceptional bases for extraterritorial jurisdiction applied. Nationality-based authority in international law was distinct from the authority or control required by article 1; deprivation of citizenship divested such authority rather than exercised it. SIAC had also been entitled to decide, in the alternative, that no breach of articles 2 or 3 was established. Article 8 did not require S1’s admission despite the national-security finding.

1. Court of Appeal (Civil Division): Dismissed the appeals from SIAC and, sitting as a Divisional Court, granted permission to seek judicial review but dismissed the claim: [2016] EWCA Civ 560.
2. Special Immigration Appeals Commission: Following preliminary determinations dated 27 October 2011 and 26 July 2012, dismissed the appellants’ citizenship appeals on 21 December 2012. No citation is stated.