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Cite as: [2013] EWCA Civ 906

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Neutral Citation Number: [2013] EWCA Civ 906
Case No: T2/2011/1853 + T2/2011/1853 + A)

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS
COMMISSION (MR JUSTICE MITTING)

Royal Courts of Justice
Strand, London, WC2A 2LL
29th July 2013

B e f o r e :

LORD JUSTICE LAWS
LORD JUSTICE SULLIVAN
and
LORD JUSTICE McCOMBE

____________________

Between:
L1
Appellant
- and -

The Secretary of State for the Home Department
Respondent

____________________

(Transcript of the Handed Down Judgment of
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____________________

Mr Hugh Southey QC and Ms Amanda Weston (instructed by Birnberg Peirce & Partners) for the Appellant
Mr Jonathan Glasson QC and Mr David Manknell (instructed by The Treasury Solicitor) for the The Secretary of State
Ms Judith Farbey QC (instructed by The Special Advocate's Support Office) as Special Advocates

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    LORD JUSTICE LAWS:

  1. This is an appeal, with permission granted by this court on 4 February 2013, against the determination of the Special Immigration Appeals Commission (SIAC) on 3 December 2010 of two preliminary issues arising in the appellant's prospective appeal against the decision of the Secretary of State to deprive him of his British nationality under s.40(2) of the British Nationality Act 1981 (the 1981 Act) on the ground that it was conducive to the public good to do so. The preliminary issues arose upon an application by the Secretary of State to strike out the proceedings. They were: (1) whether the appellant's notice of appeal had been given out of time, and (2) if so, whether time should be extended. SIAC, presided over by Mitting J, answered the first question in the affirmative and the second in the negative. Mitting J delivered both an open and a closed judgment.
  2. The appellant's application for permission to appeal to this court was renewed before Maurice Kay LJ after refusal on consideration of the papers by Richards LJ. On 8 March 2012 Maurice Kay LJ adjourned the application to a three-judge court. It is fair to say that he was not impressed with the merits of the case, but was concerned with a procedural or management issue of some importance, namely whether "a single LJ considering an application for permission on the papers or upon oral renewal should look at the closed judgment" in a case, of course, where such a judgment had been given. He concluded that this was an issue "upon which further authoritative guidance is necessary".
  3. CLOSED MATERIAL ON PERMISSION APPLICATIONS

  4. This issue has receded somewhat as the case has wound its way through a somewhat lengthy procedural history. It is enough to say that the court enjoys a discretion, which in my judgment should only be exercised in favour of examining SIAC's closed reasons on a permission application where it is not possible otherwise to do accurate justice. Where the court is confident on the basis of the open reasons alone that the right course is to refuse permission, it will generally not be necessary to look at the closed judgment; so also where the point is one of law, practice or procedure which does not depend on findings of fact which, it may be, are to be found in the closed judgment. But if the court concludes there is more than a fanciful possibility that the issue of permission to appeal may turn on the closed reasons, it should examine them.
  5. In such a case, I would think it appropriate that the court should approach the Treasury Solicitor to make the necessary arrangements for the supply of the closed judgment. The court should notify the SASO that this course is being taken, and the Special Advocate will then have an opportunity to make representations, no doubt in writing unless the court has directed a hearing, as to the effects of the closed judgment. It may be that he or she will not find it necessary to take any points; but the opportunity will be there.
  6. PROCEDURAL HISTORY

  7. I turn to the substance of the case. It is necessary to explain something of the procedural history. The adjourned application for permission was listed before this court as presently constituted on 4 February 2013. At that hearing the court expressed concern at an aspect of the case which did not, at that stage, overtly figure in the Grounds of Appeal. It arose from an undisputed finding of fact made by SIAC and set out at paragraph 12(i) of SIAC's open judgment:
  8. "The Secretary of State's decision to deprive the appellant of his citizenship was one which had clearly been contemplated before it was taken. The natural inference, which we draw, from the events described, is that she waited until he had left the United Kingdom before setting the process in train."

    We shall come to the factual history shortly. As it clearly shows, when the Secretary of State made the decision to deprive the appellant of his citizenship on 6 July 2010, it was known to her that the appellant was in Sudan; and indeed the decision to make and give notice of the decision was advisedly postponed until he had left the United Kingdom to travel to Sudan. The court's concern was that this appeared to constitute a deliberate manipulation of provisions in the SIAC (Procedure) Rules 2003 relating to notice undertaken for the purpose of obstructing the appellant's statutory right of appeal or making it more difficult to exercise.

  9. This court on 4 February 2013 was also concerned with the extremely speedy procedure which had been adopted by SIAC, in the context of the preliminary issues, for the involvement of the Special Advocate to consider and as appropriate address the closed material on behalf of the appellant. We were told on 4 February 2013 that the Secretary of State was notified of the prospective appeal on 22 October 2010; Miss Farbey QC was appointed Special Advocate by the Attorney General on 9 November 2010; on 16 November the closed material was delivered to Miss Farbey, and the SASO was served with the open material at 6 pm the same day; the hearing took place on 18 November 2010; and SIAC delivered judgment, as I have said, on 3 December 2010. It is true that before SIAC no objection was taken, either in open or closed, to this extremely truncated procedure. But the limits which it imposed on the Special Advocate's opportunity to prepare or take instructions are obvious. It also meant that the Secretary of State did not conduct an exculpatory review and disclose the results (if any), as contemplated by the regime established in paragraphs 10 and 10A of the 2003 Procedure Rules, a matter to which I shall return.
  10. In the event on 4 February 2013 the court granted permission to appeal and directed that the appellant file and serve amended Grounds of Appeal to reflect (in essence) the concerns which the court had expressed at the hearing. That was done on 17 February 2013. The Grounds of Appeal are therefore now as follows.
  11. (1) SIAC erred in failing to consider the consequences of its finding that the Secretary of State had deliberately contrived to serve the decision to deprive the appellant of his citizenship after he and his family had temporarily left the UK; and the Secretary of State's doing so amounted to an abuse of power or process, or was so unfair that the court should intervene.
    (2) SIAC erred in adopting the truncated ad hoc procedure which I have described. If closed material was going to be deployed, the full procedure provided by the Rules should have been followed including the requirement to conduct an exculpatory review.
    (3) SIAC adopted "an unduly and unreasonably narrow approach" to the meaning of "special circumstances" in paragraph 8(5) of the 2003 Procedure Rules, which allows time for appealing to be extended if SIAC is satisfied that by reason of such circumstances it would be unjust not to do so.
  12. On 4 February 2013 the court also gave directions in relation to extant judicial review proceedings by which the appellant sought, and seeks, to challenge a further decision by the Secretary of State, taken on 13 July 2010, to exclude him from the UK. We gave permission for amended judicial review grounds and directed that those proceedings should be heard by this court, constituted as a Queen's Bench Divisional Court, immediately after the SIAC appeal.
  13. There was a further directions hearing on 25 June 2013 before my Lord Sullivan LJ and myself. The court directed that evidence to be produced by the Secretary of State on this appeal from SIAC should be by way of an open witness statement only. In consequence we now have a third witness statement from Mr Philip Larkin, made on 5 July 2013. Mr Larkin is a Chief Caseworker in the Home Office dealing with issues of British citizenship. We were specifically concerned to see what the Home Office had to say about the finding at paragraph 12(i) of the SIAC open judgment: the deliberate decision to postpone the deprivation decision until the appellant had left the country. We also directed on 25 June 2013 that the substantive judicial review proceedings should not after all be heard immediately after the SIAC appeal, but that after hearing the appeal we would give further directions for the conduct of the judicial review.
  14. I may now turn to the facts of the case.
  15. THE FACTS

  16. The appellant was born in Sudan on 1 January 1971. He arrived in the UK on 30 June 1991 and claimed asylum. He was granted indefinite leave to remain as a refugee. He obtained British citizenship by naturalisation in 2003. He has four children born here, who are British citizens, and one born in Sudan on 12 May 2011.
  17. On 26 May 2010, based on material from the Security Service, a submission was put to the Secretary of State by officials with the following recommendation (a redacted version of the submission is exhibited to Mr Larkin's open statement of 5 July 2013):
  18. "That you (Home Secretary) agree in principle that:
    V. When [L1] leaves the UK, he should be deprived of his British citizenship and that decision be certified in accordance with s.40(2) of [the 1981 Act], because it was taken partly in reliance on information which in your view should not be made public because its disclosure would be contrary to the public interest.
    VI. An official can sign and make the deprivation order which would take effect immediately, once notice of the intention to deprive him is served on [L1].
    VII. Following deprivation, [L1] should be excluded from the UK."
  19. S.40(2) of the 1981 Act empowers the Secretary of State to deprive a person of British citizenship if she is satisfied that that would be conducive to the public good. If the decision is certified under s.40A(2) as having been taken in reliance on information which in the Secretary of State's opinion should not be made public in the interests of national security, the affected person's right of appeal (which otherwise lies to the First-tier Tribunal under s.40A(1)) is to SIAC. The power to exclude from the UK is a prerogative power of the Crown.
  20. The submission went on to say that officials would go back to the Secretary of State when the appellant travelled out of the UK. There is then a section headed "Background". The redacted version reads in part:
  21. "6. [L1] is assessed by the Security Service as being a committed Islamist terrorist who over a significant period of time has been involved in a range of terrorist, extremist and other illegal activities both in the UK and overseas... The Security Service... have recommended that, whilst he is out of the country, [L1] be deprived of his British citizenship and excluded from the UK.
    7. We believe the national security case against [L1] is strong. Given his involvement in Islamist and terrorism-related activity over a prolonged period of time,... the Security Service assess that to deprive him of his British citizenship and exclude him from the UK would be conducive to the public good. It would further have a disruptive effect upon his activities and ability to engage in terrorism-related activity in the future."

    The submission also shows that consideration was given to human rights issues, including health problems suffered by the appellant and the interests of his children.

  22. The Secretary of State signified her consent to the course proposed on 21 June 2010. Early the following month the appellant left the UK for Sudan. A second submission was put to the Secretary of State. It repeated what had been said in the "in principle" submission, and confirmed that "we have chosen to wait until [L1] has travelled out of the UK (so that we can achieve greater operational benefit by also being able to exclude him from the UK) before acting against him".
  23. And so the deprivation and exclusion decisions were taken. As I have said the decision to exclude was taken in exercise of the prerogative power. The deprivation decision was required under s.40(5) of the 1981 Act to be notified to the appellant, along with the reasons for the order and details of the affected person's right of appeal. Paragraph 8(1)(b)(ii) of the 2003 Procedure Rules then requires notice of an appeal to SIAC against the decision to be given by an appellant outside the UK not later than 28 days after service of notice of the decision; as I have said, time can be extended under Regulation 8(5) by reason of special circumstances.
  24. The Secretary of State's factual case relating to service on the appellant of the deprivation decision was disputed, but accepted by SIAC (paragraphs 8-9 of the open judgment), although no live evidence was called. It was as follows. On 7 July 2010 the Secretary of State personally signed the notice of decision. The document set out the matters required by s.40(5) to be included. The deprivation order itself was made on 12 July 2010; but it is the decision that generates the statutory right of appeal. On 7 and 8 July 2010, according to Mr Larkin's earlier written evidence, unsuccessful attempts were made by a UKBA official to make telephone contact with the appellant in Khartoum in order to invite him to the British Embassy so that the notice might be served on him there. On 8 July 2010 the letter, with the notice, was served by first class post and recorded delivery to the appellant's last known address in the United Kingdom, a flat in Stockwell. Apparently no one was there to accept delivery. I may take up the narrative in SIAC's open judgment:
  25. "8... No one was present to accept delivery of the recorded delivery letter, but a note must have been left at the appellant's flat because the recorded delivery copy of the letter was returned to [UKBA] on 4 August 2010 marked 'not called for'. On 13 July 2010, a further letter was posted to the appellant's flat which enclosed the order signed on 12 July 2010 depriving him of his British citizenship and gave notice of the Secretary of State's decision to exclude him from the United Kingdom. The letter expressly referred to the posting of the notice of deprivation and to his right of appeal against that decision, but did not, unlike the notice, enclose the appeal forms or state the time limit within which an appeal must be brought.
    9. Mr Larkin says that on 13 July 2010 at about 16.45 pm he also made a telephone call to the appellant's brother, Osman, who confirmed his identity on receiving the call. Mr Larkin explained to him that a notice had been delivered to the appellant's flat. He explained that it was a very important notice and that the appellant should read and understand it as soon as possible. He said that it was a notice from the Home Secretary to inform the appellant that an order to deprive him of his citizenship was to be made. He further explained that the order had now in fact been made and that the appellant was no longer a British national and had been excluded from the UK. He told the appellant's brother that the appellant had a right of appeal against the deprivation notice and that he had 28 days to lodge an appeal from Monday 12 July 2010. He said that the notice and accompanying appeal forms had been delivered to the appellant's flat. He asked that the message be relayed and the appellant's brother confirmed that he would attempt to do so."
  26. SIAC (paragraph 12) gave four considered reasons for holding that Mr Larkin's evidence was true and accurate. At any rate before the fresh Grounds of Appeal were served, this conclusion was hotly contested, in part by reference to material obtained from the Foreign and Commonwealth Office following a request under the Data Protection Act. In order to clarify the real issues now before us, I should record my view that such a factual challenge is unsustainable. It is true, as I have said, that no live evidence was called; though Mr Larkin could have been cross-examined had counsel sought to do so. SIAC noted (paragraph 5) the appellant's acceptance that his whereabouts in Sudan were unknown to the Secretary of State when she decided to make the deprivation order. There is no realistic basis for calling into question Mr Larkin's evidence that telephone attempts were made on 7 and 8 July 2010 to contact the appellant to invite him to the British Embassy for service of the notice.
  27. Accordingly it seems to me that SIAC were entitled to find that notice of appeal was given late. The real question in the case is whether they ought to have held that time should be extended by reason of "special circumstances" Regu1ation 8(5). This is the question to which the Grounds of Appeal are now directed.
  28. In my judgment, and I understand my Lords to agree, this appeal should be allowed on Grounds 2 and 3 and the case remitted to SIAC with a direction that the appellant's time for appealing against the deprivation decision be extended. We indicated this result to counsel at the hearing of the appeal on 16 July 2013, together with our view (from which at length counsel did not seek to dissuade us) that it would in the circumstances not be necessary for the court to determine Ground 1, alleging an abuse of power by the Secretary of State. I shall give my reasons for allowing the appeal directly, but should first make some observations about Ground 1, if only in order to explain why the court does not propose to deal with it on this appeal.
  29. OBSERVATIONS ON GROUND 1

  30. The reasons why the Secretary of State acted as she did in postponing the deprivation decision until she knew the appellant had left the country are explained by Mr Larkin. I need only read paragraphs 9 (relating to the "in principle" decision) and 16 (the final decision) of Mr Larkin's July 2013 statement:
  31. "9. The alternative to taking deprivation action against L1 whilst he was out of the country would have been to deprive L1 whilst in the UK and then deport him. The practical effect of this would likely have been to confine L1 to the UK for a period of years pending any appeal, during which time his presence in the UK would be likely to continue to pose a risk to national security. The operational objective of disrupting the risk L1 posed by keeping him out of the UK was therefore best achieved by taking action whilst he was out of the country rather than in the country."
    "16. The Home Secretary was not motivated by any improper considerations for example, thwarting L1's ability to appeal his decision, preventing him from getting access to effective legal advice or increasing her prospects of successfully resisting the appeal. Insofar as the timing of the deprivation (and exclusion) action resulted in L1 having to pursue any appeal from overseas, this was a necessary and inevitable consequence of depriving and excluding him whilst out of the country for national security reasons. The fundamental objective was to disrupt and mitigate the risk which L1 posed to national security."
  32. Mr Southey QC for the appellant accepted that the Secretary of State acted in good faith on the advice of officials and the Security Service. Moreover, it seems to me that Mr Larkin's description in paragraph 9 of the choice facing the Secretary of State must be correct. Had she made the deprivation decision, along with a decision to deport the appellant, while he remained in the UK, it would not have been legally possible to make a deportation order and so remove him from the country while an appeal against the deportation decision could be brought or was pending: Nationality, Immigration and Asylum Act 2002 s.79(1); and an appeal is treated as pending until finally determined.
  33. Mr. Southey submitted that we could determine Ground 1 on the basis of the open material alone, without recourse to the closed material, because the national security considerations relied upon by the Secretary of State were not relevant for the purpose of deciding whether the procedural course that she had adopted had been an abuse of power. On behalf of the Secretary of State, Mr. Glasson QC submitted that when deciding whether there had been an abuse of power, and if so, what relief, if any, was appropriate, the Court should look at the totality of the material that had been placed before the Secretary of State, both open and closed.
  34. Since there is a live issue between the parties as to the relevance of the closed material, both for the purpose of deciding whether the procedure adopted by the Secretary of State was an abuse of power, and for the purpose of deciding what relief might be granted if the appellant's argument on Ground 1 is right, we considered that those issues would be best resolved in a forum that would be able to consider both open and closed evidence. This applies with particular force to the question of relief.
  35. Mr Southey said that if the Secretary of State had indeed acted abusively, she could not be allowed to retain any advantage from the abuse. In those circumstances, he submitted, the relief which should flow from success on Ground 1 is an order (in effect) that the Secretary of State facilitate the appellant's return to this country. But there are three interlinked factors which tell against our contemplating such a course on this appeal. The first is that the appeal is (now) directed only to SIAC's refusal to extend time for appealing to it; the question whether the appellant should not only have time extended but also be allowed to come to the UK to conduct his appeal lies, on the face of it, beyond this appeal's scope. The second is that unless the court were prepared to hold that the appellant is entitled to be returned to the UK irrespective of the strength of the security case, which would be (to say the least) an ambitious proposition, we should have to receive closed material in order to determine the matter; and this appeal, by force of our directions given on 25 June 2013, has proceeded on open evidence only. The third is that the issue of the appellant's return is directly alive in the judicial review proceedings, which are likely themselves to be transferred to SIAC pursuant to new provisions made under the Justice and Security Act 2013 and subject to any further directions given in this court; and SIAC will be in a position to hear both open and closed evidence.
  36. Given those factors, and since we have determined that the appeal should be allowed on Grounds 2 and 3, it is neither necessary nor desirable that we should arrive at any conclusion on Ground 1.
  37. GROUNDS 2 AND 3

  38. Both of these Grounds go to the question whether SIAC should have held that time for appealing should have been extended under paragraph 8(5) of the 2003 Procedure Rules by reason of special circumstances. Although they are discrete, it is convenient to address them together.
  39. Some of the factual points which are vigorously deployed on Ground 1 are also relevant to Ground 3 the adoption by SIAC of "an unduly and unreasonably narrow approach" to the meaning of "special circumstances". Thus although SIAC drew the inference which they stated at paragraph 12(i) and which I have set out, it is a striking fact that Mr Larkin did not explain, in either of his open witness statements which were before SIAC, that the Secretary of State had deliberately delayed the deprivation decision until she knew that the appellant had left the country. This has, of course, now been addressed (with such particulars of the security case as can be given in open) in his third statement produced, it is fair to say, under some pressure from the court.
  40. Mr Glasson QC for the Secretary of State told us, and of course we accept, that this critical fact was communicated to SIAC in closed session. That meant that the Special Advocate could make submissions relating to it; but the appellant's counsel in open could not. Mr Larkin, apparently, was not asked about it and as we have said was not cross-examined. Given the details now contained in Mr Larkin's third statement, this matter could perfectly readily have been put to SIAC in the open hearing. I appreciate, as the transcript of the hearing shows, that in answer to a question from Mitting J the appellant's counsel actually disavowed any suggestion that to wait until the appellant had left was an illegitimate tactic. But the fact that the Secretary of State had acted as she did, and thus (aside from anything else) inevitably created difficulties as to notice and service, ought to have been at the forefront of the issue whether time for appealing should be extended, and should have been clearly and unequivocally stated to SIAC in open. This is so even if, as SIAC found, in the event the appellant had notice of the decision on a date which made it possible for him to lodge his appeal notice within 28 days.
  41. These difficulties as to notice and service stood in stark contrast to the position that would have arisen had the Secretary of State acted when the appellant was still in the UK. She knew his address here; that was where the letter of 8 July 2010, enclosing the notice of the deprivation decision, was sent. The difficulties were of the Secretary of State's making, whether or not her action was justified on security grounds.
  42. Given all these considerations, in my judgment fairness required SIAC to hold that time should be extended by reason of special circumstances. In the events which have happened I do not with respect regard Tofik [2003] EWCA Civ 1138 (per Sedley LJ at paragraph 24, cited at paragraph 50 of Mr Glasson's skeleton argument) as authority to the contrary. I am confident, moreover, that my conclusion may properly be reached without consideration of closed material. The question whether the appellant should be permitted to return to this country to pursue his appeal is, as I have endeavoured to emphasise, a wholly different issue.
  43. That conclusion is in my judgment lent considerably added force by Ground 2 SIAC erred in adopting a truncated ad hoc procedure. This proposition was not in the end disputed by the Secretary of State. Paragraphs 10(1) and 10A(2) of the 2003 Procedure Rules are in point:
  44. "10(1) Where the Secretary of State intends to oppose an appeal, he must file with the Commission -
    (a) a statement of the evidence on which he relies in opposition to the appeal; and
    (b) any exculpatory material of which he is aware."
    "10A(2) Where the appellant serves a statement under paragraph 1, the Secretary of State must
    (a) make a reasonable search for exculpatory material;
    (b) notify the appellant of the extent of that search...;
    (c) file with [SIAC] any exculpatory material;
    (d) if he wishes to rely on further evidence, file with [SIAC] a statement of that evidence."

    Where the Secretary of State's material (exculpatory and otherwise) is closed, it must be served on the Special Advocate.

  45. There was no search for or disclosure of exculpatory material during the currency of the proceedings before SIAC: the very tight timetable adopted for the involvement of the Special Advocate effectively precluded such a process. However the Secretary of State has indicated (Mr Glasson's skeleton argument paragraph 64) that there has now been a search, and "potentially exculpatory material" has been identified. We do not of course know what it contains. It may be that it is limited to the rights and wrongs of the issue whether time should be extended. That appears to be the context of Mr Glasson's submission "[t]he Secretary of State takes the view that none of the further evidence identified could affect the conclusion that SIAC would reach". He submits also (paragraph 69(iii)) that if the court were in favour of Mr Southey's case only on Ground 2, we might remit the matter for SIAC to reconsider the extension of time issue.
  46. Whether or not as a matter of strict construction the provisions of paragraphs 10(1) and 10A(2) of the Rules apply to the conduct of a strike-out application such as was made by the Secretary of State here, it seems to me that fairness requires that such a procedure be adopted at least if the Secretary of State seeks to deploy closed material on the strike-out, given that if the application succeeds that will dispose of the appeal. In the event "potentially exculpatory material" has been identified. In the circumstances the failure to undertake an exculpatory process at the time, and the discovery of that material now (whatever it amounts to), are best treated as grist to the conclusion that time should have been extended.
  47. For the reasons I have given I would allow this appeal and remit the matter to SIAC with a direction that the appellant's time for appealing the deprivation decision be now extended.
  48. POSTSCRIPT: THE JUDICIAL REVIEW

  49. On 2 July 2013 the Secretary of State decided "in principle" to certify the appellant's judicial review proceedings pursuant to s.2C(1)(a) of the Special Immigration Appeals Commission Act 1997 (inserted by s.15 of the Justice and Security Act 2013, which came into force on 25 June 2013). The effective consequence will be that the judicial review will be transferred to SIAC which will be able to receive both open and closed evidence. The transfer has not yet taken place, because the 2003 Procedure Rules need to be amended to accommodate this new procedure, and that requires approval by the Joint Committee on Statutory Instruments and the affirmative resolution procedure in Parliament. We expressed the hope at the hearing on 16 July 2013 that counsel would agree any appropriate directions relating to the future conduct of the judicial review and the appeal against the deprivation decision. We anticipate that they will be heard by SIAC in tandem. The matter should be mentioned when our judgments in this appeal are handed down.
  50. LORD JUSTICE SULLIVAN:

  51. I agree with the judgments of Laws LJ and McCombe LJ.
  52. LORD JUSTICE McCOMBE:

  53. I agree with Laws LJ that this appeal should be allowed on grounds 2 and 3 and I am grateful to him for his concise recitation of the background facts and of the unusual procedural course of this case. I prefer to express no views at all with regard to ground 1, as the issue may well remain live in the judicial review proceedings. In all the circumstances of this unusual case I would prefer to go no further than is required for the purposes of the appeal actually before us, which is an appeal against SIAC's refusal to extend time to appeal against the decision of the respondent, the Secretary of State, to deprive the appellant of his British citizenship and the resultant striking out of that appeal.
  54. In my judgment, in the end this was a simple case in which the requirements of the British Nationality Act 1981 and ancillary regulations, designed to secure that the subject of a potential order depriving him of citizenship is given notice of the decision and is informed of his right of appeal, were not satisfactorily met. In the present case, the respondent for her own understandable reasons (as presented to us) sought to circumvent the obvious intent of the Act and regulations as to service of the notice, in the hope that a means of service, arguably within the letter of the rules (as to which I express no concluded view), but clearly not within their spirit, would suffice as a manner of compliance with the service requirements.
  55. As it turned out the respondent's desired attempt to effect personal service in Sudan failed in the first instance and the only notice given (on the respondent's disputed evidence), within the appeal time limits, was via a message to be relayed to the appellant through his brother. There was a dispute as to whether that message got through. SIAC was prepared to find that the substance of it did. For my part, I would not have been prepared to make such a decision in the absence of hearing from the witnesses, a process undesirable, in any procedural context, where arguments of fact as to service arise. The better course would have been to recognise that there was a dispute about the precise facts and to consider the just solution in all the circumstances, making allowances for the dispute. That is what would inevitably happen if such a dispute arose in any usual procedural context and I can see no reason why it should not have happened here.
  56. Given its findings of fact as to service, SIAC could see no reason why an extension of time should be granted. They treated the appellant as having had ample time in which to present an appeal within the time limited by the rules, on the assumption that there had been proper service. One can understand that approach. However, the intended appeal to SIAC was against a decision to deprive the appellant of his citizenship and, without being excessively emotional about the privileges of British citizenship, the issue was as to a fundamental matter of the appellant's personal status. The respondent's ruse to meet the letter of the rules and to effect personal service in Sudan had failed. The attempt to serve by post was never going to effect actual notice to the appellant of the decision taken and there was an unsatisfactory factual dispute about what the appellant's brother had managed to communicate.
  57. In the circumstances, it seems to me that the case cried out for the grant of an extension of time as asked. Whatever a diligent litigant would have done in the appellant's position, the question of citizenship was a matter of fundamental importance to him. It seems to me that the security case was nothing to the point on whether the appellant should be denied a right of appeal, whether from within the country or from without. The security grounds would no doubt be highly material on the appeal itself and on any challenge to the decision to exclude the appellant from the United Kingdom, the subject of the judicial review. However, it appears that SIAC was prepared to take the security issues as militating against there being any appeal at all. In my judgment, that was an error. Restoring the right of appeal did nothing to the detriment of the respondent's security concerns. The appellant remained excluded and will so remain unless the judicial review challenge succeeds. Exclusion was the whole thrust of the respondent's understandable tactics (if they were lawful). An appeal on the merits of the deprivation decision does not undermine the respondent's objective at this stage of the procedure.
  58. For these reasons, I too would allow the appeal.


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