R (W2 and IA) v Secretary of State for the Home Department

A statutory appeal to SIAC is an adequate alternative remedy where the substance of a challenge to a citizenship-deprivation order is a challenge to the decision to make it. SIAC cannot entertain an appeal about the timing of the subsequent order as such, but that does not prevent it from deciding a collateral challenge to the underlying deprivation decision.

Where an appellant seeks entry to participate effectively in a SIAC appeal, a properly supported application for leave to enter should be made. SIAC may determine an appeal against a refusal of leave to enter, including as an expedited preliminary issue, and can provide a binding remedy. Its specialist fact-finding and closed-material procedures make it an appropriate forum for assessing whether an out-of-country appeal is effective under article 8.

W2, a dual national, was deprived of British citizenship under British Nationality Act 1981 while he was outside the United Kingdom. The Secretary of State assessed him as posing a national-security risk. The order removed his right of abode and prevented his return to the United Kingdom.

W2 had already appealed to the Special Immigration Appeals Commission (SIAC). He and IA also sought judicial review and interim relief requiring the Secretary of State to facilitate his return so that he could conduct the SIAC appeal from the United Kingdom. Elisabeth Laing J refused permission and interim relief: [2017] EWHC 928 (Admin).

The central issue was whether the statutory SIAC appeal, including a possible appeal against refusal of leave to enter, was a practical, suitable and adequate alternative remedy to judicial review.

1. Appeal dismissed. The judge correctly refused permission for judicial review because the statutory SIAC process was an adequate alternative remedy.

2. SIAC has no freestanding appellate jurisdiction over the making or timing of a subsequent deprivation order. However, a court must identify the substance of the challenge. Where a challenge to the order is in truth a collateral attack on the earlier decision to make the order, it falls within SIAC’s jurisdiction over that decision. It would be artificial to permit a party to bypass the statutory appeal by labelling such a challenge as one to the order, particularly where the decision and order are closely connected.

3. The authority in [2016] EWCA Civ 560 concerned appellants who had already been abroad for a lengthy period when the deprivation decision was made. It did not create a jurisdictional obstacle in a case where the alleged impropriety concerns the timing and circumstances of the deprivation decision itself.

4. W2 should make a formal, evidence-based application for leave to enter outside the Immigration Rules. A request for an undertaking in correspondence was insufficient outside an emergency context. The late attempt to amend the judicial-review grounds to challenge the earlier refusal was properly rejected, particularly as the supporting evidence post-dated that decision.

5. SIAC may hear an appeal under section 2 of the Special Immigration Appeals Commission Act 1997 against a refusal of leave to enter and determine, as a preliminary issue, whether W2’s presence in the United Kingdom is necessary for his deprivation appeal to be effective. If SIAC allows that appeal, its decision binds the Secretary of State. SIAC can assess the practical evidence concerning communication, legal instructions, oral evidence and expert evidence, applying the principles in [2017] UKSC 42 as appropriate.

6. The court expressed no view on whether the burden of showing an effective out-of-country appeal lay on the Secretary of State in this distinct factual and statutory setting. That assessment was for SIAC. The remaining article 8 and section 55 matters were accepted to be within SIAC’s jurisdiction.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the refusal of permission for judicial review.

• High Court, Administrative Court: Elisabeth Laing J refused permission to apply for judicial review and interim relief concerning the deprivation order: [2017] EWHC 928 (Admin).