Islam, R (On the Application Of) v Secretary of State for the Home Department

A parent may be permitted to challenge governmental inaction affecting an adult child where the parent has a proper interest, although the child remains the obvious claimant in relation to a decision made directly against him. A continuing failure to repatriate or provide consular assistance gives rise to a continuing cause of complaint.

Section 40 of the British Nationality Act 1981 may be used in respect of a British citizen overseas. Notice may be served at the person’s last-known address abroad. The statutory safeguard against statelessness remains decisive, but any dispute about statelessness is ordinarily for the statutory appeal route. A British citizen who commits offences abroad has no general right to be repatriated to face prosecution in the United Kingdom.

The claimant, the father of a British citizen who had travelled to Syria and joined ISIL, renewed an application for permission to bring judicial review proceedings. The challenge concerned the decision to deprive his son of British citizenship, the service of notice in Bangladesh, the alleged failure to adopt a proper policy for nationals overseas, and the alleged failure to facilitate his son’s return or provide assistance.

The son had a statutory right of appeal to the Special Immigration Appeals Commission. The father’s attempted appeal had been rejected as improperly brought and out of time. The central issues were standing, delay, alternative remedy, the territorial reach of the deprivation power, statelessness, and alleged duties arising under domestic and international human-rights law.

1. Permission and preliminary objections. The father was not a meddlesome busybody and had a proper interest in challenging an alleged policy of inaction affecting British nationals involved with ISIL. Although the son was the obvious claimant in relation to his own deprivation decision, standing should not determine the permission application. The challenge to continuing inaction and lack of consular assistance was continuing and was not out of time. The father had acted promptly after the Special Immigration Appeals Commission rejected his attempted appeal. The father himself had no alternative remedy, and the alleged duty to repatriate was outside the Commission’s jurisdiction.
2. Deprivation and statelessness. Section 40(2) of the British Nationality Act 1981 could, for present purposes, be read compatibly with Article 7(1) of the European Convention on Nationality 1997. Voluntary involvement with ISIL was not properly arguable as conduct seriously prejudicial to the United Kingdom’s vital interests. Since the son was a British citizen by birth, the exception in section 40(4A) did not apply. The prohibition in section 40(4) against rendering a person stateless remained applicable. Any challenge based on alleged statelessness was a matter for the son’s appeal to the Special Immigration Appeals Commission, and in any event lacked an evidential foundation on the material before the court.
3. Territorial reach and notice. Regulation 10 of the British Nationality (General) Regulations 2003 expressly contemplated service of notice overseas. The deprivation power removed rights principally enjoyed in the United Kingdom and was not an attempt to regulate activity in a foreign territory. The Home Secretary was therefore required to send notice to the son’s last-known address in Bangladesh, and the service was not unlawful merely because he was in Syria. Possible future deportation or refusal by Bangladesh did not make the regulation ultra vires.
4. Repatriation and human rights. A British citizen who commits, or may have committed, serious offences abroad cannot generally demand repatriation to face the more favourable prospect of trial in the United Kingdom. There was no evidence that the United Kingdom had encouraged prosecution by a non-state actor. In the absence of British diplomatic or consular authority or control over the son in Syria, Article 6 of the European Convention on Human Rights was not arguably engaged. The father also had no arguable Article 8 claim: the son was an adult who had voluntarily travelled to Syria and joined jihad, and no special factors created the required direct and immediate link with the father’s family life.
5. The renewed application for permission to apply for judicial review was refused.

The application was initially considered on the papers by Walker J, who refused permission. The claimant renewed the application before the High Court (Administrative Court), which refused permission.