U3 v Secretary of State for the Home Department

An appeal to the Special Immigration Appeals Commission under section 2B of the Special Immigration Appeals Commission Act 1997 is an appeal, not judicial review. SIAC may consider all relevant OPEN and CLOSED evidence and may, where appropriate, make findings of fact on the balance of probabilities.

When reviewing a national-security assessment, however, SIAC must respect the executive’s institutional competence and democratic responsibility. It may test whether the assessment has a proper factual basis, is rational, contains a legal or procedural error, or violates applicable Convention rights. It cannot substitute its own evaluation of future risk where the Secretary of State’s contrary assessment is rationally supported. A factual finding about motivation is therefore part of the evidential picture, but cannot itself displace a rational national-security assessment.

The Secretary of State deprived U3 of British citizenship on national-security grounds and later refused her entry clearance. Following a full OPEN and CLOSED hearing, the Special Immigration Appeals Commission dismissed both appeals. SIAC accepted that U3 had experienced serious violence, coercion and control from her former husband, but held that the Secretary of State could rationally assess that she had aligned with ISIL and continued to pose a national-security risk.

U3 appealed on points of law. She argued principally that SIAC had treated its appellate jurisdiction too narrowly by applying a public-law approach to the national-security assessment and by declining to determine more of the underlying factual questions for itself.

The central issues were whether the Supreme Court’s account of SIAC’s functions in Begum was binding, what powers SIAC possesses on a section 2B appeal, and whether SIAC had materially erred in its treatment of the evidence and the updated national-security assessment.

1. Appeal dismissed. Lady Justice Elisabeth Laing, with whom Lady Justice Carr and Lord Justice Peter Jackson agreed, held that the Supreme Court’s general account in Begum of SIAC’s functions on a section 2B appeal was necessary to its decision and binding. In any event, that account was highly persuasive. It was expressed at a high level and was not an exhaustive description of SIAC’s functions.

2. A section 2B appeal is not an application for judicial review. The apparently unqualified right of appeal, the procedural provisions in section 5 and the statutory contrast with reviews under sections 2C–2E show that SIAC may decide questions of fact and law. It may consider evidence arising after the deprivation decision where that evidence illuminates the position at or before the decision. It must scrutinise all relevant OPEN and CLOSED evidence, including evidence from the appellant and material produced through exculpatory review.

3. Different principles nevertheless apply to different aspects of the appeal. A challenge to the Secretary of State’s national-security assessment is governed by the limits identified in Rehman and Begum. SIAC may examine whether the assessment has a factual basis, is rational, omits a relevant consideration, relies on an irrelevant consideration, involves procedural impropriety or legal error, or breaches applicable Convention rights. It must not substitute its own evaluation of future national-security risk for the Secretary of State’s rational assessment.

4. SIAC can, and in some cases must, make findings of fact on the balance of probabilities. This includes findings concerning statelessness, fraud, Convention rights and children’s interests. It may also make findings relevant to national security when it considers them possible and appropriate. Such findings form part of the factual picture to which the Rehman and Begum limits apply. A finding about motivation cannot displace a contrary assessment by the Secretary of State where that assessment has rational evidential support.

5. SIAC was entitled to make the factual findings it did and adequately explained its treatment of the expert evidence. It might have been legally mistaken if it believed that it lacked power in principle to find whether U3 stayed voluntarily in Syria, but any such error was immaterial. That fact could not, alone or with other findings, displace the rational overall assessment of future risk.

6. SIAC also gave sound reasons for rejecting the challenge to the updated national-security assessment. The Secretary of State had considered U3’s evidence about coercive control; that evidence was not decisive of ideological alignment; and the assessment’s description of the relationship as “difficult” caused no material error. Both underlying appeals therefore remained dismissed.

1. Court of Appeal (Civil Division): By [2023] EWCA Civ 811, unanimously dismissed U3’s appeal on points of law and upheld SIAC’s dismissal of both underlying appeals.
2. Special Immigration Appeals Commission: Following an OPEN and CLOSED hearing, dismissed U3’s section 2B appeal against deprivation of citizenship and her section 2 human-rights appeal against refusal of entry clearance. No neutral citation is stated.