Secretary of State for the Home Department v Lisa Smith

Article 14 requires a structured comparison between the claimant and a person in a relevantly similar situation. In an exclusion case involving an Irish national who would have been British by descent if her parents had married, the appropriate comparator was a dual British-Irish national posing the same security risk, rather than a person who was only British. Exclusion of the claimant and deprivation followed by exclusion of the comparator were substantively equivalent, so there was no difference in treatment. Alternatively, any difference was justified by the protection of national security and the need to keep a person posing the relevant risk outside the United Kingdom. The outcome did not depend on the availability of registration as a British citizen.

The Secretary of State excluded the respondent, an Irish national, from the United Kingdom under regulation 23(5) of the Immigration (European Economic Area) Regulations 2016, having assessed her as having travelled to Syria and aligned with ISIL/Daesh. The respondent challenged the decision under Article 14 read with Article 8 of the Convention, arguing that she should be treated as British because her father was British and her parents were unmarried when she was born.

SIAC allowed her appeal after deciding that preliminary issue in her favour. The Secretary of State appealed, raising the correct comparator, whether there was differential treatment, and whether any difference was justified.

1. Appeal allowed. SIAC had framed the preliminary issue as whether the respondent was entitled to be treated as a British citizen. That question was liable to mislead because it did not apply the established Article 14 analysis.
2. The court adopted the four-stage approach identified in Regina (SC) v Secretary of State for Work and Pensions [2021] UKSC 26: whether the claim falls within the ambit of a Convention right; whether there is status-based different treatment; whether the persons compared are in analogous or relevantly similar situations; and whether any difference has objective and reasonable justification, including a legitimate aim and proportionality.
3. The proper comparator was a dual British-Irish national living in Ireland, assessed to pose the same national-security risk as the respondent. The respondent could be excluded under regulation 23(5) of the Immigration (European Economic Area) Regulations 2016. The comparator could not be excluded while British, but could be deprived of British citizenship under section 40 of the British Nationality Act 1981 and then excluded. Those measures were formally different but substantively equivalent. There was therefore no difference in treatment.
4. Alternatively, any difference was justified. The aim was protection of national security. Given the assessed risk, keeping the person outside the United Kingdom was proportionate because there was no less intrusive means of satisfactorily managing it. The majority considered that this conclusion did not depend on the availability of registration.
5. Underhill LJ agreed with the result but preferred a different route. He considered that the respondent could readily obtain British citizenship by registration and could not claim the incident of citizenship which prevented exclusion while declining the associated status and obligations. Lewis LJ additionally doubted that registration could itself justify exclusion, distinguishing the citizenship-acquisition issue considered in R (Johnson) v Secretary of State for the Home Department [2016] UKSC 56.
6. The alternative argument under section 6(2)(b) of the Human Rights Act 1998 failed. No primary legislation obliged the Secretary of State to act incompatibly with Convention rights. The oath issue and questions concerning the Common Travel Area and Article 1 were not decided.

• Court of Appeal (Civil Division): In [2023] EWCA Civ 376, the Secretary of State's appeal was allowed.
• Special Immigration Appeals Commission: SIAC had allowed the respondent's appeal after deciding the preliminary issue in her favour.