R3 v Secretary of State for the Home Department

A dual national who voluntarily leaves the United Kingdom and is abroad when deprived of British citizenship is not ordinarily within United Kingdom jurisdiction under article 1 of the European Convention on Human Rights. The presence of family members in the United Kingdom does not supply a jurisdictional basis unless their Convention rights are engaged in a relevant claim, such as an application for family reunion.

Even where article 8 applies, it confers no right to citizenship. Review concerns whether deprivation was arbitrary and its consequences for private life.

Under rule 11 of the Special Immigration Appeals Commission (Procedure) Rules 2003, SIAC may consider the merits of a proposed variation of appeal grounds. It may refuse a hopeless amendment. A statutory deprivation power, supported by guidance, appellate safeguards and a sufficiently foreseeable criterion, possesses the necessary quality of law.

The Secretary of State deprived the appellant, a British and Pakistani dual national living abroad, of British citizenship because she assessed that he had aligned himself in Syria with an Al-Qaeda-aligned group. The Special Immigration Appeals Commission held that deprivation did not make him stateless, refused permission to add a ground alleging arbitrariness and lack of foreseeability under article 8, and subsequently dismissed his substantive appeal.

The Court of Appeal permitted an appeal concerning the refusal to vary the grounds. During the hearing it also granted permission to challenge SIAC's conclusion that article 8 did not apply when the deprivation decision was made.

The central questions were whether the appellant was within United Kingdom jurisdiction under article 1 of the European Convention on Human Rights, whether deprivation breached article 8, whether SIAC could assess the merits of a proposed variation under rule 11 of the Special Immigration Appeals Commission (Procedure) Rules 2003, and whether any error was material.

1. Appeal dismissed. The appellant was not within United Kingdom jurisdiction under article 1 of the European Convention on Human Rights when the deprivation decision was made. He had voluntarily left the United Kingdom, was a dual national and lived in a family unit abroad. The deprivation decision did not amount to the authority or control required for an exceptional exercise of extraterritorial jurisdiction. The Court was bound, or at least strongly persuaded, by S1 v Secretary of State for the Home Department [2016] EWCA Civ 560. His relationships with his former wife and children in the United Kingdom supplied no jurisdictional basis because he had not applied for entry clearance for a visit or family reunion.

2. Even if article 8 applied, deprivation did not breach it. The Convention protects no right to citizenship. In deprivation cases, article 8 review is limited to whether the decision was arbitrary and to its consequences for private life. The appellant had voluntarily left the United Kingdom and his family, did not then wish to return and remained a Pakistani national. The consequences were limited. The statutory framework, guidance and right of appeal also provided adequate safeguards against arbitrariness.

3. Directions requiring amended grounds to be filed by a specified date constituted a timetable, not implied general permission to amend. Rule 11 requires SIAC to consider the proposed wording, permits the Secretary of State to object and requires a judicial decision on permission.

4. SIAC may consider the merits of a proposed variation when exercising its broad discretion under rule 11. Efficient case management does not require permission for a hopeless argument which would waste time and public expense. To the extent that Shamima Begum v Secretary of State for the Home Department, SC/174/2020, decided that merits could never be considered under rule 11, it was wrong. Rule 11B concerns striking out an entire notice of appeal and does not confine the separate power governing variation of existing grounds.

5. The proposed Gillan ground had no reasonable prospect of success. Unlike the unconstrained stop-and-search powers considered in Gillan v United Kingdom (2010) 50 EHRR 45, the citizenship power was governed by authoritative interpretation, adequate guidance and a merits appeal to SIAC. Terrorism-related activity in Syria made possible deprivation foreseeable. SIAC was therefore entitled to refuse the amendment.

6. SIAC would rationally have refused the requested disclosure because its value was minimal and production would require disproportionate time, cost and effort. Any error concerning article 8 or amendment was immaterial: the article 8 claim and the proposed Gillan ground would both have failed.

Stuart-Smith and Moylan LJJ agreed with Elisabeth Laing LJ.

1. Court of Appeal (Civil Division): Permission was granted to challenge SIAC's conclusion on article 8, but that challenge and the appeal concerning variation of the grounds were dismissed: [2023] EWCA Civ 169.

2. Special Immigration Appeals Commission, decision 3: SIAC dismissed the substantive appeal. It found the appellant's alignment with an Al-Qaeda-aligned group firmly proved, held deprivation conducive to the public good, and found the measure proportionate.

3. Special Immigration Appeals Commission, decision 2: Supperstone J refused permission to vary the grounds of appeal because the application was late and the proposed article 8 ground had no reasonable prospect of success.

4. Special Immigration Appeals Commission, decision 1: SIAC held that deprivation of British citizenship did not make the appellant stateless.