W2 And IA, R (On the Application Of) v The Secretary of State for the Home Department

A statutory appeal is the proper remedy for challenges to the substance or effects of a citizenship-deprivation decision where the statutory scheme assigns those issues to the Special Immigration Appeals Commission. The deprivation decision and the subsequent order are legally distinct steps, but they are closely linked and are not, in substance, separate decisions requiring separate reasoning or service. A complaint that an appellant cannot participate meaningfully from abroad ordinarily concerns a refusal of leave to enter, not the validity of the deprivation order. Interim relief should not be granted where it would substantially quash or frustrate the deprivation decision, particularly in a national-security case whose merits have not been tested.

W2, a British citizen, was deprived of his citizenship on national-security grounds while outside the United Kingdom. The Secretary of State notified him at his last known address, and he appealed to the Special Immigration Appeals Commission. W2 and IA sought permission for judicial review of the deprivation order and interim relief requiring the Secretary of State to facilitate W2’s return to the United Kingdom.

The challenges concerned service of the notice and order, W2’s ability to participate meaningfully in his statutory appeal, the effect on family rights under article 8, section 55 of the Borders, Citizenship and Immigration Act 2009, proportionality, and EU law. The central issues were whether those matters belonged in the SIAC appeal and whether interim relief was appropriate.

1. Permission refused. The grounds were either unarguable or raised matters which could and should be determined by SIAC on W2’s statutory appeal.
2. The statutory scheme treats the decision to make a deprivation order and the order itself as legally distinct but closely connected. The order gives effect to the notified decision. The reasons for the decision and the order must be the same, and making the order does not require a separate reasoning process. Challenges to the substance or effects of the order therefore also challenge the decision to make it and fall within the statutory appeal.
3. Issues concerning article 8 and section 55 were matters for SIAC. SIAC was required to consider the article 8 rights of the whole family, not only W2’s rights, applying Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39; [2009] 1 AC 115. The article 8 approach relied on by the claimants was inconsistent with R (SB) v Governors of Denbigh High School [2006] UKHL 16; [2007] 1 AC 100 and Belfast City Council v Miss Behavin’ Limited [2007] UKHL 19; [2007] 1 WLR 1420.
4. A complaint that an appellant could not participate meaningfully from abroad was not a ground for challenging the deprivation order. It concerned the separate decision whether to grant leave to enter outside the Immigration Rules. Such a challenge required clear and compelling evidence and had to be assessed by ordinary public-law principles, following R (G1) v Secretary of State for the Home Department [2012] EWCA Civ 867; [2013] QB 1008 and the Court of Appeal decision in the S1 etc litigation.
5. The notice regulations supplied a simple code for service. There was no arguable requirement to serve the order separately. R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36; [2004] 1 AC 604 was materially different.
6. Interim relief was refused. Parliament had assigned the merits and effects of the deprivation decision to SIAC. Court intervention which effectively quashed or frustrated the order would be inconsistent with that scheme. The balance of convenience did not favour mandatory relief where the national-security assessment had not been fully tested and the order might pre-judge the statutory appeal.