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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> L1 v Secretary of State for the Home Department  EWCA Civ 906 (29 July 2013)
Cite as:  EWCA Civ 906
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ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS
COMMISSION (MR JUSTICE MITTING)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
LORD JUSTICE McCOMBE
|- and -
|The Secretary of State for the Home Department
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165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
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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
Crown Copyright ©
LORD JUSTICE LAWS:
CLOSED MATERIAL ON PERMISSION APPLICATIONS
"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.
(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.
"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."
"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.
"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."
OBSERVATIONS ON GROUND 1
"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."
GROUNDS 2 AND 3
"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.
POSTSCRIPT: THE JUDICIAL REVIEW
LORD JUSTICE SULLIVAN:
LORD JUSTICE McCOMBE: