R3 v Secretary of State for the Home Department

The Court of Appeal dismissed the appellant's challenge to the Special Immigration Appeals Commission's decisions concerning a deprivation order under section 40(2) of the British Nationality Act 1981. The principal legal questions were whether article 8 of the European Convention on Human Rights applied when the deprivation decision was made, and whether SIAC (Supperstone J) erred in refusing permission under rule 11 of the SIAC Procedure Rules to vary the grounds of appeal by adding a ‘Gillan’ foreseeability/arbitrariness ground. The court held that the appellant was outside the United Kingdom's article 1 jurisdiction when the decision was made so article 8 did not apply; alternatively, if article 8 did apply the decision was not in breach of article 8 on the facts. The court also held that SIAC did not err in law in refusing permission to vary: the merits of a proposed variation are a permissible consideration in exercising the rule 11 discretion and, on the facts, the Gillan ground had no reasonable prospect of success; the requested disclosure would in any event not have been ordered.

The appellant (A), born in London, held dual British and Pakistani nationality and travelled to Turkey in May 2013 before crossing into Syria. On 24 May 2017 the Secretary of State notified her intention to deprive A of British citizenship under section 40(2) BNA on grounds that deprivation was conducive to the public good, on the basis that he had aligned with an Al‑Qaeda aligned group. A appealed to SIAC. SIAC made three decisions: (1) the order would not render A stateless; (2) Supperstone J refused A permission to amend (vary) his SIAC grounds to add a Gillan foreseeability/arbitrariness challenge and refused extensive disclosure; and (3) a SIAC panel dismissed A's appeal on the merits after OPEN and CLOSED consideration of evidence.

The appellant sought permission to appeal to the Court of Appeal on seven grounds; the court gave permission limitedly and also allowed an out‑of‑time application to challenge SIAC's finding that article 8 did not apply when the deprivation decision was made. The principal issues determined by the Court of Appeal were:

• Jurisdiction: whether A was ’within the jurisdiction’ of the United Kingdom under article 1 ECHR such that article 8 applied to the Secretary of State's deprivation decision;
• Article 8/Substantive review: whether, if article 8 applied, the deprivation decision breached article 8 (including the narrower Strasbourg approach to citizenship deprivation enquiries);
• Variation/Rule 11: whether SIAC erred in law in refusing permission to vary grounds of appeal to add a Gillan‑based challenge and in refusing related disclosure; and
• Materiality: whether any legal error would have been material to the outcome.

The court analysed Strasbourg authority (notably Al‑Skeini, Khan/IR, K2, Gillan and HF v France) and domestic authorities (including S1, Aziz and MS (India)), and SIAC's procedural rules (Rules 10/10A/11/11B). The court concluded that, on the authorities and the facts, A was not within the United Kingdom's jurisdiction when the decision was made and that SIAC was therefore right to hold article 8 did not apply. If article 8 had applied, the court held the statutory framework, guidance and appeal rights provided adequate safeguards against arbitrariness and the deprivation was not in breach of article 8. The court further held that rule 11 permits SIAC to take the merits of a proposed variation into account; Supperstone J did not err in concluding the Gillan ground lacked reasonable prospects and that the requested disclosure was unnecessary and disproportionate. Any potential errors were immaterial.

Appeal dismissed. The Court of Appeal held that (1) the appellant was not within the United Kingdom's article 1 jurisdiction when the deprivation decision was made and article 8 therefore did not apply; alternatively, even if article 8 applied the decision did not breach it; (2) SIAC did not err in law in refusing permission under rule 11 to vary the grounds of appeal because the proposed Gillan foreseeability/arbitrariness ground had no reasonable prospects of success; and (3) any arguable errors would have been immaterial as the disclosure sought would not have been ordered and the substantive Gillan challenge would have failed.

Appeal from the Special Immigration Appeals Commission (SIAC) (Cheema‑Grubb J, Upper Tribunal Judge O’Connor and Mr Roger Golland) SC/150/2018. SIAC made three decisions: decision 1 (order not to render appellant stateless), decision 2 (Supperstone J refused permission to vary grounds and refused further disclosure), and decision 3 (SIAC dismissed the appeal on the merits). The appellant appealed to the Court of Appeal (this judgment, [2023] EWCA Civ 169).