B4 v Secretary of State for the Home Department

In an appeal against deprivation of citizenship on national-security grounds, meaningful exculpatory material is an obviously material consideration which the Secretary of State must take into account. It need not be treated as a mandatory consideration implied by statute.

Whether ministerial advice was procedurally fair and balanced is an objective question for SIAC to decide. It is not confined to Wednesbury review. SIAC must nevertheless afford appropriate respect to the expert judgments informing the advice, and assess the advice as a whole. A legal error is immaterial where the same result was inevitable. SIAC's powerful-microscope scrutiny is substantively equivalent to anxious scrutiny.

The Secretary of State deprived B4 of British citizenship under section 40(2) of the British Nationality Act 1981, concluding that he posed a national-security risk after travelling to Syria and associating with an Al-Qaeda-aligned group. B4 retained another nationality.

SIAC dismissed his appeal in November 2022. It rejected challenges concerning the national-security assessment, alleged exculpatory material, Article 2 and 3 risk, alleged improper purpose, and the absence of prior representations.

B4 appealed on questions of law. The central issues were whether exculpatory material was a mandatory or obviously material consideration, whether SIAC should itself decide if ministerial advice was fair and balanced, and whether SIAC had to apply anxious scrutiny.

1. Appeal dismissed. SIAC erred by treating the fairness of the advice given to the Secretary of State as reviewable only on Wednesbury grounds. The error was not material because the Court itself concluded that the advice and annexes were fair and balanced, so the deprivation decision would inevitably have been the same.

2. The court rejected the submission that exculpatory material is a mandatory relevant consideration implied by section 40 of the British Nationality Act 1981. The point was academic, however, because the Secretary of State accepted that any meaningful exculpatory material is obviously material and must be considered. SIAC had not held otherwise.

3. Procedural fairness is an objective question for SIAC to determine for itself. The national-security context and the respect due to expert bodies do not convert that question into one of Wednesbury irrationality. SIAC must decide whether the advice, taken as a whole, fairly and adequately presents the salient matters, including material tending to favour the affected person. It must give appropriate respect to expert assessments and cannot substitute its own view merely because a detail could have been presented differently.

4. The absence of a right to prior notice or representations in a national-security deprivation case does not eliminate procedural fairness before the decision. Rather, it reinforces the need for advisers to present fair and balanced advice. Having reviewed the ministerial submission and annexes, the court found that they brought the necessary salient points to the Secretary of State’s attention without overwhelming the decision-maker with underlying intelligence.

5. A public-law error vitiates a decision only if material. The same requirement applies to an appeal from SIAC under section 7(1) of the Special Immigration Appeals Commission Act 1997.

6. There was no practical dispute about anxious scrutiny. SIAC’s duty to examine the evidence with a “powerful microscope”, stated in [2024] EWCA Civ 152, amounted in substance to the required anxious scrutiny, and SIAC had performed that task.

• Court of Appeal (Civil Division) Dismissed B4’s appeal from SIAC: [2024] EWCA Civ 900.
• Special Immigration Appeals Commission Dismissed B4’s appeal against the deprivation decision on 1 November 2022 (SC/159/2018).