U3 v Secretary of State for the Home Department

This Court considered the scope of SIAC’s functions when hearing appeals under section 2B of the Special Immigration Appeals Commission Act 1997 against deprivation of British citizenship for national security reasons, and related section 2 appeals against refusal of entry clearance. The Court held that the Supreme Court’s reasoning in Begum [2021] UKSC 7 about SIAC’s role on a section 2B appeal is binding and that SIAC must review the Secretary of State’s national security assessment on public law grounds identified in the authorities (including Rehman). At the same time SIAC may, and in appropriate cases must, make findings of fact on the evidence before it (OPEN and CLOSED), and may take into account evidence post‑dating the challenged decision insofar as it bears on facts or issues existing at the time of that decision. Applying those principles, the Court concluded SIAC had given proper respect to the Secretary of State’s national security assessment, had not materially erred in law in its approach to evidence or findings, and dismissed the appellant’s challenges.

This appeal arose from SIAC’s dismissal of two connected appeals by the appellant ("U3"): (1) an appeal under section 2B of the Special Immigration Appeals Commission Act 1997 against a decision of the Secretary of State to deprive her of British citizenship on national security grounds (a section 40 BNA decision), and (2) an appeal under section 2 of the 1997 Act (and a related judicial review) against refusal of entry clearance. The appellant sought restoration of citizenship and/or entry clearance, and challenged SIAC’s approach to its functions, its treatment of factual evidence and its failure to make certain findings.

The Court framed the principal issues as: whether SIAC must treat a section 2B appeal as governed only by judicial review principles; what functions SIAC has on a section 2B appeal (including the proper scope for making findings of fact and for taking into account evidence not before the Secretary of State at the time of the challenged decision); and whether SIAC made material legal errors in this case.

Key points of reasoning:

• The Supreme Court’s analysis in Begum about SIAC’s role on a section 2B appeal was necessary to that decision and is binding. Begum emphasises constitutional and institutional limits on courts and tribunals when reviewing national security assessments while preserving a meaningful review to ensure legality, rationality and compliance with Convention rights.
• A section 2B appeal is not the same as judicial review. Section 2B confers an unqualified right of appeal; SIAC therefore may examine questions of fact and law, hear OPEN and CLOSED evidence and make findings of fact on the balance of probabilities where appropriate. At the same time, when reviewing a Secretary of State assessment of future national security risk SIAC must apply the public‑law grounds set out in Rehman/Begum and give appropriate respect to the executive’s evaluative and predictive judgments.
• SIAC may take into account evidence that post‑dates the challenged decision so far as it bears on the facts or issues as they existed at the time of the decision (for example by updating the security assessment for purposes of the appeal or by identifying material that the Secretary of State failed to consider), but it must not substitute its own evaluative judgment about national security for the Secretary of State except where public‑law grounds permit intervention.

Applying those principles to the facts, the Court concluded SIAC did not materially err in law in its approach to evidence, in the factual findings it made, or in its treatment of the Secretary of State’s updated national security assessment. The appeals were therefore dismissed.

Appeal dismissed. The Court held that (i) Begum is binding and establishes that SIAC must review national security assessments on defined public law grounds while giving appropriate respect to executive judgments about future risk; (ii) SIAC may and sometimes must make findings of fact on the evidence before it (OPEN and CLOSED) and may take into account evidence emerging after the administrative decision insofar as it bears on facts at the time of decision; and (iii) on the facts SIAC had not materially erred in law in its approach, findings or treatment of the Secretary of State’s assessment, so the appellant’s appeals failed.

Appeal from the Special Immigration Appeals Commission (appeals SC/153/2018 and SC/153/2021). SIAC dismissed the appellant's appeals against (1) deprivation of citizenship and (2) refusal of entry clearance after an OPEN and CLOSED hearing. The appellant obtained permission to appeal to the Court of Appeal, which delivered judgment [2023] EWCA Civ 811 and dismissed the appeal.