Secretary of State for the Home Department v Lisa Smith

The Court of Appeal allowed the Secretary of State’s appeal against a Special Immigration Appeals Commission decision that had recast the respondent’s challenge as a claim that she should be treated as a British citizen by virtue of Article 14 read with Article 8 ECHR. The court held that SIAC had framed the preliminary issue incorrectly. The correct comparator was a dual British–Irish national who acquired British citizenship at birth and who posed the same assessed national security risk. Applying the Article 14 four-stage analysis, the court concluded that either (a) there was no material difference in treatment in substance because the Secretary of State would, in the comparator’s case, have used the available power of deprivation and then exclusion to achieve the same result, or (b) any difference in treatment was justified by the legitimate aim of protecting national security and was proportionate. The court therefore set aside SIAC’s decision and allowed the appeal.

This was an appeal by the Secretary of State from a decision of SIAC which, at a preliminary stage, had held that the respondent, born in the Republic of Ireland to unmarried parents and assessed to have travelled to Syria and aligned with ISIL/Daesh, was entitled to be treated as if she were a British citizen for the purposes of an exclusion decision (Article 14 read with Article 8). The exclusion was made under regulation 23(5) of the Immigration (European Economic Area) Regulations 2016 and certified under regulation 38(2)(a) to be a national security decision referable to SIAC.

Facts and procedure: The respondent relied on documentary material (DNA report, family birth records) to show her paternity and Irish birth; the parties agreed she was born in Ireland and that her parents were unmarried. SIAC heard the appeal on a preliminary issue and allowed the respondent’s challenge, concluding she should be treated as a British citizen for the purpose of the Decision. The Secretary of State obtained permission to appeal to this Court.

Nature of the claim and relief sought: The respondent had appealed the Secretary of State’s exclusion decision; SIAC’s preliminary ruling effectively sought a declaration that the respondent should be treated as a British citizen (thereby rendering the exclusion ultra vires). The Secretary of State sought to overturn that preliminary finding.

Issues framed by the Court: (i) whether SIAC had correctly framed the preliminary issue; (ii) the appropriate comparator for Article 14 analysis; (iii) whether there was a difference in treatment on the basis of birth out of wedlock; (iv) if so, whether the difference was justified, including the relevance of registration as a route to citizenship and the requirement to take an oath under section 42 of the British Nationality Act 1981; and (v) the interaction between the EEA Regulations, deprivation powers under the BNA and Convention rights as explained in R (Johnson) v Secretary of State for the Home Department.

Reasoning: The court held that SIAC’s preliminary issue was inapt and led it astray. The court applied the four-stage Article 14 approach (ambit, status, comparator, justification). It concluded that the correct comparator was a dual British–Irish national who had acquired British citizenship at birth and posed the same security risk. On that basis the court found that in substance there was no difference in treatment because the Secretary of State would have been likely to use section 40 deprivation powers against such a dual national and then exclude that person, producing the same operative result as an exclusion order against the respondent. Alternatively, if there were a difference, it was justified: the aim (national security) was legitimate and deprivation/exclusion constituted a proportionate means of preventing a person assessed as a present and sufficiently serious threat from entering the United Kingdom. The court therefore allowed the appeal and set aside SIAC’s preliminary ruling.

Subsidiary findings and context: SIAC had not been shown evidence about how the Secretary of State would treat a dual national and had not investigated the respondent’s ties to the United Kingdom. The court noted the respondent’s stated reluctance to take an oath had not been tested by an application for registration and that SIAC’s view that an immunity from exclusion could not be justified was incorrect. The court also noted an agreed note about the Common Travel Area and Brexit was produced but not determinative on the appeal.

Appeal allowed. SIAC had posed an inappropriate preliminary issue and erred in treating the respondent as entitled to be treated as a British citizen for the purposes of the exclusion decision. The correct comparator is a dual British–Irish national who acquired British citizenship at birth; on that comparison there is no material difference in treatment in substance or, alternatively, any difference is justified by the legitimate aim of protecting national security and is proportionate. The Secretary of State’s exclusion decision was therefore not unlawful on Article 14/Article 8 grounds.

This is an appeal to the Court of Appeal from the Special Immigration Appeals Commission (SIAC). SIAC (Chamberlain J), after a hearing in April 2020 and a remote judgment on 3 July 2020, lifted a stay and decided a preliminary issue in the respondent’s favour addressing entitlement to be treated as a British citizen; SIAC allowed the respondent’s appeal. The Secretary of State sought permission to appeal to the Court of Appeal and was granted permission. The Court of Appeal heard argument on 21 February 2023 and delivered judgment on 5 April 2023 ([2023] EWCA Civ 376).