B e f o r e :
LORD JUSTICE DAVIS
LORD JUSTICE BEATSON
LORD JUSTICE SINGH
|| R (W2 AND IA)
||- and -
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Michael Fordham QC, Ms Stephanie Harrison QC and Mr Anthony Vaughan (instructed by Birnberg Peirce) for the Appellants
Ms Lisa Giovanetti QC and Mr Rory Dunlop (instructed by Government Legal Department) for the Respondent
Mr Ashley Underwood QC and Mr Dominic Lewis (instructed by the Special Advocates' Support Office) appeared as Special Advocates
Hearing dates: 26 and 27 October 2017
HTML VERSION OF JUDGMENT
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Lord Justice Beatson :
- The issue in this appeal is whether a statutory appeal to the Special Immigration Appeals Commission ("SIAC") is, in the circumstances of this case, a practical, suitable and adequate alternative remedy to judicial review. The appellants are W2 and his wife IA. They appeal from the order of Elisabeth Laing J dated 24 April 2017. The judge refused them permission to apply for judicial review and interim relief in respect of the decision of the Secretary of State for the Home Department dated 15 October 2016 to make an order under section 40 of the British Nationality Act 1981 as amended ("the 1981 Act") depriving W2 of his British citizenship with immediate effect while he was out of the United Kingdom. The Secretary of State made the order on the ground that it was conducive to the public good to do so as a result of the threat which he posed to national security. The reason given for the decision that W2 posed a threat to national security was that he was a dual national who was known to have travelled to Syria and was assessed to have been located with ISIL.
- On 15 October 2016, W2 was located in his country of origin, of which he is also a national. He had travelled there from the United Kingdom in the second half of September 2016. On 16 November 2016, he exercised his statutory right to appeal to SIAC against the decision to make an order depriving him of his British citizenship, and he and his wife filed these proceedings on 3 January 2017. They challenged the deprivation order and sought interim relief requiring the Secretary of State to facilitate the return of W2 to the United Kingdom to pursue his statutory appeal to SIAC.
- In the context of this case, an important factor is that, had W2 been in the United Kingdom when he was served with the order depriving him of British citizenship, his removal to his country of original nationality might have been precluded by article 3 of the European Convention on Human Rights ("ECHR"), having regard to the case law relating to that country and the fact that, if the authorities in that country knew him to be suspected by the United Kingdom of involvement in terrorism, he would be at real risk of inhuman or degrading treatment or punishment contrary to article 3 at their hands.
- The judge refused permission to apply for judicial review because (see ) she concluded that the grounds raised either are unarguable or raise issues which can and should properly be dealt with by SIAC in a statutory appeal. She also concluded (see ) that this was not an appropriate case for interim relief because the court should not second guess (without proper investigation) the Secretary of State's assessment of the risk to national security which W2 poses, or make an order which might well have the effect of pre-judging the appeal by making him irremovable although the merits of his appeal had not been investigated.
- Although many points were raised during the hearing, for the reasons I shall give I consider that ultimately the case turns on two of them. The first is a question as to the scope of SIAC's jurisdiction that arises from the decision of this court in S1 and others v Secretary of State for the Home Department  EWCA Civ 560,  3 CMLR 37, and its impact on two other decisions; R (G1) v Secretary of State for the Home Department  EWCA Civ 867,  QB 1008, R (L1) v Secretary of State for the Home Department  EWCA Civ. 1410.
- The second question concerns the procedure for determining whether W2 should be able to return to the United Kingdom pending his appeal in SIAC so that he can participate in it; that is whether his return is necessary in order for the appeal to be "effective". The second question arises because, whereas in proceedings by way of judicial review the court may order interim relief, SIAC is not able to do so. It was submitted on behalf of the Secretary of State that SIAC is able to address the underlying question of whether W2's return to the United Kingdom should be facilitated. It could do so in an expedited appeal by him under section 2 of the Special Immigration Appeals Commission Act 1997 ('the SIAC Act 1997') against a refusal by the Secretary of State to grant him leave to remain ("LTE") outside the rules. It was also argued that the issue of whether W2 could effectively participate in his appeal under section 2B of the SIAC Act 1997 against the decision to deprive him of British citizenship if he is not in this country could be considered as a preliminary issue in that appeal. It was said that, in these ways, the evidence and full argument on this matter could be considered by the specialist body designated by Parliament to consider national security cases.
- Examining the second question involves considering the impact of the decision of the Supreme Court in Kiarie v Secretary of State for the Home Department and R (Byndloss) v Secretary of State for the Home Department  UKSC 42,  1 WLR 2380 ("Kiarie and Byndloss"), decided on 14 June 2017, about two months after the decision of the judge. That decision considered the need to show that an out of country appeal would be "effective" before deporting a foreign national convicted of serious crimes.
- Because of the perceived risk to W2 of treatment contrary to article 3 in his country of origin, this court continued directions made by Flaux LJ in an order dated 3 February 2017 that nothing must be published which could lead to the identification of W2, IA or their family members, their national origins and nationalities, and their current location. In this judgment, I describe such information in generalised language so as to preclude the need for a confidential judgment to protect that information. The parties have agreed that this means that a confidential judgment is not needed in this case.
- The court received evidence and submissions in OPEN and CLOSED conditions. I have also prepared a CLOSED judgment. I, however, emphasise that my conclusions are entirely based on the reasons in this OPEN judgment. I reached these conclusions without taking into account any of the CLOSED materials or submissions. Nothing in the CLOSED materials tells against the conclusions I have reached on the OPEN materials.
- W2 and IA were represented by Michael Fordham QC, Stephanie Harrison QC and Anthony Vaughan. The Secretary of State was represented by Lisa Giovanetti QC and Rory Dunlop. The special advocates were Ashley Underwood QC and David Lewis. Their written and oral submissions have been of considerable assistance and I thank them and their legal teams for all that they have done.
- The remainder of this judgment is organised as follows. Parts II and III summarise the factual and procedural background and the legislative framework. Parts IV and V summarise the grounds upon which judicial review was sought and the judge's decision. Parts VI and VII summarise the grounds of appeal and discuss the scope of the appeal. Part VIII contains my analysis, including that of the decisions of this court in L1 and S1 and that of the Supreme Court in Kiarie and Byndloss. For the reasons I give in Part VIII, I have concluded that the judge did not err in concluding that, in the circumstances of this case, the challenge to the deprivation order was in substance a challenge to the prior decision to make the order, and (at  –  below) that SIAC had jurisdiction to consider it. I have also concluded (see the discussion at  ff. below) that SIAC will be able to consider whether it is necessary in the circumstances of this case for W2 to be in the United Kingdom for his appeal to be effective in a challenge to a refusal by the Secretary of State to grant him LTE pending that appeal, which can be heard together with a preliminary issue in the appeal on this issue.
II. The factual and procedural background:
- My summary of the facts is primarily taken from the judgment below. W2 was granted British citizenship on 10 February 2006 as the spouse of IA, a naturalised British citizen. They and their five children lived in this country. In the second half of September 2016 W2 travelled to his country of origin, of which, as I have stated, he is also a national. He had booked a return flight about a month later.
- On 13 October 2016, the Secretary of State sent a notice of her decision to deprive W2 of his British citizenship to his last known address, the address in the United Kingdom where IA was still living with their children. The letter was opened and read by IA, who on 14 October telephoned W2 and told him about it. The order depriving W2 of his British citizenship was signed on behalf of the Secretary of State on 15 October 2016. The Secretary of State's open national security submission shows that it was known that W2 was in his country of origin at the time of the deprivation decision on 13 October 2016.
- The Secretary of State's open national security submission assessed W2 as travelling from the United Kingdom in August 2014 to join ISIL in Syria. It stated that, in June 2015, he visited the British consulate in Istanbul and informed staff that his passport had been confiscated by ISIL. He was provided with an emergency travel document and returned to the United Kingdom. He was interviewed by the police, and the police confiscated items found at his home including a tablet containing a memory card with bomb-making instructions. The open national security submission assesses that W2 received these while he was in Syria. He was arrested for terrorism related offences but no charges were pursued. On 7 March 2016, just over six months before W2 travelled to his country of origin, a British passport was issued to him.
- The open evidence filed by the Secretary of State states that the Secretary of State did not know W2's address in his country of origin or enough about his whereabouts there to enable her to deliver the notice of the decision to him personally or by post at his address there. During the course of the proceedings, following a request from the Special Advocates, in a letter dated 12 April 2017 the Government Legal Department stated that "in considering whether to make a deprivation order the Secretary of State was advised that the threat posed by W2 was best managed outside the UK and the deprivation while he was known to be in [his country of origin] was the best means of achieving that goal". The letter also stated that the Secretary of State's attention was also drawn to the effect of a particular decision of SIAC about removals to that country "as a reason for not pursuing deprivation while W2 was in the UK".
- As well as removing his citizenship, the effect of the deprivation order was to remove W2's right of abode in the United Kingdom and to "come and go into and from the United Kingdom without let or hindrance": see sections 2 and 1(1) of the Immigration Act 1971. The Secretary of State also issued a "no fly" notice to airlines instructing them not to carry W2. As a result of IA's telephone call to W2, he had booked a flight to return to the UK but was not allowed to board the flight.
- Before either the statutory appeal or these proceedings were filed, in a letter before claim dated 8 November 2016, W2's solicitors asked the Secretary of State to undertake to give him leave to return to the United Kingdom until such time as his appeal to SIAC was determined. The Secretary of State refused to do so. A letter dated 18 November 2016, from the Government Legal Department, stated that W2 had not provided "clear and compelling evidence" that he needed to be in the United Kingdom to take a meaningful part in his appeal to SIAC. I deal with the implications of this at  –  and  ff. below.
- After both these proceedings and the SIAC appeal were filed, on 3 February 2017 Flaux LJ ordered that there be a "rolled up" hearing of the applications for judicial review and for interim relief, anonymity, and expedition. He also ordered that these proceedings be case managed alongside the SIAC appeal by a SIAC judge. The effect of his other directions was in effect to stay the SIAC appeal pending the outcome of these proceedings. In the event, notwithstanding this order, the parties later agreed that the hearing below would consider only the applications for permission to apply for judicial review and for interim relief.
III. The legislative framework:
- I take the summary of the relevant legislative provisions from  to  of the judge's decision. The passages in square brackets in this part of my judgment indicate where I have generalised references to W2's country of origin and nationality or to the potential risks to him. The judge stated:
"8. Section 40(1) of the British Nationality Act 1981 ('the 1981 Act') defines 'citizenship status'. Section 40(2) confers a power on the Secretary of State by order to deprive a person of his citizenship status if she is satisfied that deprivation is conducive to the public good. Before making such an order the Secretary of State must give the person written notice specifying that she has decided to make the order, the reasons for the order, and the person's right of appeal under section 40A(1) or section 2B of the Special Immigration Appeals Commission Act 1997 ('the 1997 Act') (section 40(5)). W2's right of appeal is to SIAC because the Secretary of State has issued a certificate under section 40A(2) of the 1981 Act (section 2B of the 1997 Act). Section 41(1) of the 1981 Act gives the Secretary of State power to make regulations generally for 'carrying into effect the purposes of this Act'. Section 41(1)(e) specifically authorises provision 'for the giving of any notice required or authorised to be given to any person…'.
9. The British Nationality (General) Regulations 2003 (2003 SI No 548) ('the notice regulations') are made under sections 41(1) and (3) of the 1981 Act. Regulation 10 is headed 'Notice of proposed deprivation of citizenship'. It provides:
'(1) Where it is proposed to make an order under section 40 of the Act 1 depriving a person of a citizenship status, the notice required by section 40(5) of the Act to be given to that person may be given—
(a) in a case where that person's whereabouts are known, by causing the notice to be delivered to him personally or by sending it to him by post;
(b) in a case where that person's whereabouts are not known, by sending it by post in a letter addressed to him at his last known address.
(3) A notice required to be given by section 40(5) of the Act shall, unless the contrary is proved, be deemed to have been given—
(a) where the notice is sent by post from and to a place within the United Kingdom, on the second day after it was sent;
(b) where the notice is sent by post from or to a place outside the United Kingdom, on the twenty-eighth day after it was sent, and
(c) in any other case on the day on which the notice was delivered.'
10. Section 40A in its original form provided for an appeal pursuant to section 40A to be suspensive, in the sense that an order depriving a person of his citizenship could not be made while an appeal was pending (section 40A(4)). Section 40A(4) was repealed by the Asylum and Immigration (Treatment of Claimants etc) Act 2004. There was thus a deliberate decision by Parliament that the pursuit of an appeal should no longer prevent the Secretary of State from making an order depriving a person of his citizenship.
11. Section 78 of the Nationality Immigration and Asylum Act 2002 ('the 2002 Act'), which prevents the removal of an appellant while a statutory appeal is pending, does not apply, and, as far as I can see, has never applied, to a section 40A appeal (see section 40A(3) of the 1981 Act). Nonetheless, the Secretary of State appears to have conceded in L1 v Secretary of State for the Home Department SC/100/2010, judgment 4 August 2014, that section 78 in effect applied (see paragraph 60 of SIAC's judgment). This concession is reflected at several points in the reasoning Court of Appeal in that case, but I do not understand its legal basis.
13. The effect of the amendments to the 2002 Act made by the Immigration Act 2014 is now that if W2 were returned to the United Kingdom and were to argue that return to [his country of origin and nationality would be precluded by ECHR article 3], he would, absent certification, have a right of appeal against any decision to refuse such a claim, and the bringing of an appeal in the exercise of that right would attract the protection of section 78 of the 2002 Act. The in-country right of appeal would not apply if the Secretary of State certified the claim as clearly unfounded under section 94 of the 2002 Act, or made a certificate under section 94B that W2 would not suffer 'serious irreversible harm' pending his appeal.
14. W2's solicitors, in their further written submissions, emphasise that if the Secretary of State were to certify such [an article 3] claim under section 94B(2) of the 2002 Act, that would deprive W2 of an in-country right of appeal. They suggest that on her case, the Secretary of State would be entitled to certify such a claim. If she did so, W2's only remedy would be an application for judicial review of the certification. If the court were to find that, for whatever reason, W2 did face [such a risk] … it would not be surprising that he could not lawfully be returned [to his country of origin and nationality]. "
- As (see  and  –  below) there was no challenge to the refusal to grant W2 LTE the United Kingdom pending the appeal, it was not necessary for the judge to deal with the adequacy of the right of appeal under section 2 of the SIAC Act 1997 against the refusal of leave to enter, where the person seeking leave to enter has made a claim that to refuse him entry to the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998. Since the Secretary of State has not made an exclusion order against W2, it is also not necessary to deal with the new section 2(C) which was inserted into the SIAC Act 1997 by the Justice and Security Act 2013 and had effect from 25 June 2013. Section 2C(1) provides that SIAC has jurisdiction to review and set aside any direction about the exclusion of a non-EEA national from the United Kingdom which is made on the ground that such exclusion is conducive to the public good, is not subject to a right of appeal, and is certified as a direction that was made wholly or partly in reliance on information which should not be made public inter alia on national security grounds. Section 2C(3) provides that SIAC must apply the principles which would be applied in judicial review proceedings and section 2C(4) that "if [SIAC] decides that the direction should be set aside, it may make any such order, or give any such relief, as may be made or given in judicial review proceedings".
IV. The grounds for judicial review:
- The judicial review challenge relied on five grounds. Since the judge denoted the grounds by letters rather than numbers, so do I. They are:
(a) Failure to give notice in accordance with the British Nationality (General) Regulations 2003, SI 2003 No 548.
(b) W2 was not given notice of the deprivation order by the date on which he sought to travel back to the United Kingdom, and this was contrary to the principles stated in R (Anufrijeva) v Secretary of State for the Home Department  UKHL 36,  1 AC 604 at  that notice of a decision is required before it can have the character of a determination with legal effect.
(c) The order is unlawful because it was made while W2 was outside the United Kingdom. As originally pleaded, it had four limbs:- (1) He cannot therefore play a "meaningful" part in his SIAC appeal. (2) The order was procedurally unfair because there was no effective opportunity for W2 to make representations before it was made, and it was made without adequate reasons. (3) The Secretary of State did not, before making the order, consider the risks to which W2 would be exposed in his country of origin. (4) The reasoning in the submission to the Secretary of State, on which the deprivation decision was made, was inadequate and, in any event, the order was disproportionate.
(d) The procedural and substantive aspects of the right to family and private life under article 8 of the European Convention on Human Rights ("ECHR") had been breached by the order because of a lack of adequate investigation as to the specific facts about W2's family and the best interests of his children in the in the United Kingdom in the light of the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 ("the 2009 Act").
(e) The order breached W2's rights under EU law.
Before the judge, Ms Harrison QC, on behalf of W2, recognised that the judge was bound by authority to reject ground (c)(2) and reserved her position to take the point in the appropriate court.
V. The judge's decision:
- The judge stated (see ) that the court must be careful to ensure that judicial review is not available where there is a suitable alternative remedy. She stated that there is a significant overlap between the grounds on which judicial review is sought and the issues SIAC could consider in the appeal. Her first task was to identify the overlap and refuse permission to apply for judicial review on any ground SIAC could consider in the appeal, and to do that she needed to consider the relationship between the notice of the Secretary of State's decision to deprive W2 of his British citizenship and the order depriving him of it. After considering the relationship, the overlap and the grounds, she concluded that the grounds are either unarguable or raise issues which can, and therefore should, properly be dealt with by SIAC in the appeal and refused permission to apply for judicial review.
- The relationship between the notice of the decision to make the order and the order: The judge considered (at ) that although the decision to make the order and the order are legally distinct steps, they are closely linked, and they are not in substance different decisions. She stated:
"Whether or not the order is made as soon as possible after the decision is notified, the reasons for the decision and the order are and must be the same. The making of the order does not require a distinct process of reasoning, nor does the legislative scheme permit that."
- The judge (at ) considered that the submissions on behalf of W2 and IA sought to draw an artificial distinction between the decision to make the order and the order itself, founded on the decision in S1 that SIAC does not have jurisdiction to consider arguments about the timing of the order. She stated:
"It does not follow by any means from that lack of jurisdiction that the court should entertain such arguments if, in substance, their purpose is (as here) to make a collateral attack on the decision to make an order."
She continued (at ) that
"If that analysis is right, any challenge to the substance or to the effect of the order is also a challenge to the substance or effect of 'the decision to make the order'".
This analysis is primarily of relevance to the judge's conclusions on grounds c(1) and (d) which I summarise at  –  below after dealing with her decision on the other grounds.
- Ground (a): The judge stated that, although the argument that the notice was improperly served was framed as a challenge to the validity of the deprivation order, it was conceptually indistinguishable from a challenge to the validity of the notice. That challenge can, see SIAC's decision in H2 v Secretary of State for the Home Department SC/120/2012 (22 January 2015), be considered by SIAC. Accordingly, (see ) the court should as a matter of discretion refuse to deal with this ground in judicial review proceedings, as there is an alternative remedy.
- The judge also considered that ground (a) faced significant hurdles. The open evidence was that the Secretary of State did not know W2's whereabouts. From the language of regulation 10 it was not obvious that the Secretary of State had any obligation to try to find out where W2 was. Nor was it obvious that she was obliged to use a method an official described as her "preferred method" in another case. In any event W2 was told about the Notice by IA the day after she received it and has not suffered any injustice on the facts.
- Ground (b): The judge stated (see ) that it is not arguable that the deprivation order was flawed because it was not served on W2 until after he had tried to fly back from his country of origin. The 1981 Act requires the Secretary of State to give notice of her intention to make a deprivation order but does not require her to give notice of, or serve, the deprivation order itself. She had earlier (at ) stated that sections 40A(1) and 40(5) of the 1981 Act show that "the notice and the order are not, in substance, different decisions". Anufrijeva is a very different case because in that case there had been no notice whatsoever of the decision. Here notice of the intention to make the deprivation order had been given together with the reasons for the order and notice of the right of appeal. Those notice provisions satisfy the principle of legality described in Anufrijeva.
- Ground (c)(1): The judge rejected this ground because (see ) the submission that W2 cannot play a meaningful part in his statutory appeal from his country is not a ground for challenging the deprivation order, but a potential ground for challenging a different decision, a refusal to grant LTE outside the Immigration Rules. The decision in the letter dated 18 November 2016 refusing to give W2 the undertaking requested in the letter dated 8 November 2016 had not been challenged, and his counsel did not apply to amend the grounds. She submitted that the relief sought was what mattered. The judge rejected that submission because it was clear from the decision of the Court of Appeal in S1 that W2 should have applied for LTE outside the rules and, if that was refused, for judicial review of that decision.
- The judge went on to consider the position if she was wrong about the effect of S1. She considered (at  – ) that W2 faced a second problem with two facets. The first was that the burden lay on him to show by clear and compelling evidence that he could not participate effectively in his appeal from abroad, and that the decision not to give LTE is flawed on public law grounds.
- The second facet (see  – ) was that much of the evidence at the permission hearing related to ECHR article 8 and section 55 of the 2009 Act, but there was nothing to prevent IA and the experts giving evidence about those matters. Additionally, the evidence from W2 on this was very thin. There was no evidence that he is on a watch list in his country of origin and nationality, or could not travel outside that country if he fears his communications are being monitored. The judge stated (at ) that if W2 provided more evidence to the necessary standard on this, she did not rule out the possibility that SIAC's approach to the appeal might be affected. SIAC would be in a much better position to decide whether, and if so, how to reflect that in its overall assessment of the case.
- Grounds (c)(3) and (d): These maintained that the deprivation order is legally flawed because the Secretary of State did not consider the risk to which W2 would be exposed in his country of origin and that the reasoning in respect of Article 8 and section 55 is inadequate and the order disproportionate. The judge considered (at ) that these challenges are challenges to the substance and effect of the order, and (see her conclusion summarised at  above) are also challenges to the substance or effect of 'the decision to make the order' which SIAC would be able to consider in the appeal. She did not consider that analysis was arguably changed by the fact that "those challenges are directed to the period pending the appeal only". She stated at ):
"The remedy which Parliament has provided against the substance and effect of the decision to make the order, at whatever point in time those effects are felt, is the statutory appeal. If the appeal succeeds, the order will no longer have effect. That is the sole remedy Parliament has provided for all the effects of the decision".
- Although it was not therefore necessary to say anything about the merits of the arguments based on ECHR article 8 and section 55 of the 2009 Act, at  – , the judge made three general points:
a) The argument that the order was flawed because the Ministerial Submission did not properly consider the family's article 8 rights was inconsistent with the approach of the House of Lords in e.g. R (SB) v Governors of Denbigh High School  UKHL 16,  1 AC 100.
b) It was argued that the article 8 rights of the children and IA could only be considered in judicial review but it is accepted that SIAC will be required to consider the article 8 rights of the whole family.
c) As to proportionality, and the contention that any risk posed by W2 could be managed in other ways, the decision to deprive him whilst abroad was precisely because of the assessment that his risk could be better managed if he was outside the UK. The argument clearly faces significant hurdles. The fact that national security cannot be tested in judicial review as it can by SIAC is another reason why judicial review should not be available on this aspect of the case.
- Ground (e): The judge stated (at ) that she was bound by the decisions of the Court of Appeal in the cases of S1 and G1 to hold that EU law did not apply to this type of decision.
- Interim Relief: In view of her conclusions, the question of interim relief did not arise, but the judge dealt with this briefly. I have summarised what she said at  above.
VI. The grounds of appeal:
- The Notice of Appeal contains six grounds. Ground 1 is that the judge erred in concluding that the statutory appeal to SIAC was an adequate alternative remedy which justified the refusal of permission to apply for judicial review:
(a) SIAC had no jurisdiction on an appeal to rule on the lawfulness of the deprivation order as opposed to the notice to make the order and the absence of provision under the appellate regime for interim relief;
(b) an appeal to SIAC is not an adequate alternative remedy for the detriment caused by the summary enforced exclusion of W2 in his country of origin and nationality in the light of the objectively well-founded fears of risk of harm to him there, the legal and practical difficulties of pursuing his appeal from there, and the serious interference with the family's article 8 rights pending the conclusion of his appeal; and
(c) the judge erred in concluding that permission should be refused because W2 had not challenged the refusal in the letter dated 18 November 2016 to give W2 an undertaking to give him leave to return to the United Kingdom as requested in the letter dated 8 November 2016.
- Ground 2 is that the judge erred in law in rejecting the requirement for service of the deprivation order before it had legal effect. Ground 3 is that she erred in refusing permission because making the order while W2 was outside the United Kingdom was unlawful because it was aimed at achieving in whole or in part the improper purpose of securing a litigation advantage: to deny him reliance on the article 3 risks he faced in his country of origin in the light of the decisions of the courts in this country.
- Ground 4 is that the judge erred in concluding that the evidence as to why W2 could not participate effectively in his appeal from his country of origin was "very thin" given the risks of coming to the adverse attention of the authorities in that country if he sought to exit and re-enter. Ground 5 is that the judge failed to take into account and address the substance of the article 8 grounds, including those advanced separately and distinctly on behalf of IA and the children. Ground 6 is that she erred in her construction of regulation 12 of the 2003 Regulations in relation to the extent to which the Secretary of State had an obligation to make reasonable enquiries to ascertain W2's whereabouts before serving the deprivation decision notice at an address when it was known that he was not in the United Kingdom.
- In the event Mr Fordham focussed on four grounds. The first is that making the deprivation order while W2 was abroad violated ECHR article 8 because his ability effectively to participate in the appeal is thereby denied. The second is that making the order while W2 was abroad is an abuse of power because the Secretary of State acted to remove what Mr Fordham described as the human rights shield that protected W2 while he was in this country. The third is that due process and fairness required that W2 be given an opportunity to make representations before the order took effect and thus required that it be notified to him. The fourth is the breach of article 8 and section 55 that is the result of the family rupture in the period between the deprivation order and the outcome of the appeal. I deal with Mr Fordham's submissions about amending the grounds to permit W2 to challenge the Secretary of State's refusal of LTE the United Kingdom in  –  below.
VII. The Scope of the Appeal:
- In an order dated 4 August 2017, Sales LJ gave permission to appeal against the judge's order on all grounds on the second limb of the test in the Rules, that there is a compelling reason for the appeal inter alia so that the operation of judicial review in relation to an application for LTE can be reviewed in the light of the Supreme Court decision in Kiarie and Byndloss. On 15 August 2017, he directed expedition and ordered that the appeal be heard before the hearing in SIAC. In a response to an enquiry by the parties, Sales LJ stated that this appeal was only to consider whether the judge was wrong to refuse permission.
- The appellants' replacement skeleton argument dated 28 September 2017 invites the court, not only to allow the appeal against the refusal of permission and to grant permission, but to reserve the substantive claim to this court, to allow it, and to order W2's return to the United Kingdom. Mr Fordham QC argued that this was justified "given the interest at stake and since the Court of Appeal is seized of the matter with a two-day time hearing and the parties having had plenty of notice and time". In the appellants' written submissions, they state that there is a pressing need to act now, to prevent further delay and authoritatively to resolve the matter so that W2 can return to participate in the SIAC appeal and re-join his family.
- At the hearing, the court rejected this application. The agreement to limit the scope of the hearing below was because the expedited two-day hearing was insufficient to allow time to hear the necessary evidence as to whether W2 could safely give instructions from his country of origin. Secondly, Sales LJ, on 17 August 2017 directed that the appeal would only consider whether the judge had erred in refusing permission and that, if the appeal is allowed, the case was to be remitted to the High Court for the substantive judicial review. Where there are good reasons for retaining a judicial review in this court in these circumstances, that is a matter which can and should be addressed at the time that permission to appeal is considered: see, for example, the decision of this court in R (Howard League for Penal Reform & Anr) v The Lord Chancellor  EWCA Civ 819, per Sir Brian Leveson PQBD at  where directions were given enabling evidence to be filed in good time after permission was given by the court. That evidence was then considered at the full appeal: see  EWCA Civ 244. In the case before us the Secretary of State has prepared for the appeal on the basis of Sales LJ's order that, if the judge erred in refusing permission, the case would be remitted to the Administrative Court for the substantive judicial review. There are also, as Lord Carnwath stated in Kiarie and Byndloss at , practical and principled reasons for appeal courts not considering factual issues which are best considered by the relevant specialist court or tribunal.
- Mr Fordham also invited the court to permit amendment of the grounds to permit W2 to challenge the Secretary of State's refusal of LTE the United Kingdom outside the Immigration Rules to prosecute his SIAC appeal. This involves considering whether it is necessary for W2 to make a formal application for LTE, or whether the exchange of correspondence on 8 and 18 November 2015, summarised at  above, sufficed. It involves substantially similar matters to those that must be considered in deciding whether such a challenge is an adequate alternative remedy to a judicial review of the deprivation order itself which I deal with at  ff. below.
- An application to amend was made on 25 April 2017, after the judge's draft judgment was circulated and the judge refused this in paragraph 2 of the order under appeal. Mr Fordham argued (replacement skeleton, paragraph 38) that W2's solicitors in their letter dated 8 November 2016 (see  above) did ask on his behalf for LTE. Moreover, the Secretary of State's amended summary grounds stated that her refusal to facilitate W2's return to the United Kingdom in order to conduct his SIAC appeal from within the United Kingdom was one of the three legal acts "which are or may be the subject of challenge in this judicial review and/or the SIAC appeal". Mr Fordham submitted that the Secretary of State was thus on notice of W2's challenge to that refusal. In those circumstances, the amendment of the grounds in order to challenge that refusal is just and appropriate, particularly because permission for judicial review has not yet been given. He stated that "what matters is the legal substance and a fair disposal of the judicial review claim" and maintained that the matter was raised in the notice of appeal which sought permission to appeal against the judge's refusal to grant the application to amend the grounds. He also relied on the fact that Sales LJ gave permission on all grounds, and referred to a review of the operation of judicial review in relation to an application for LTE in the light of the Supreme Court's decision in Kiarie and Byndloss.
- In my judgment, in the circumstances of this case this is a wholly inappropriate application. W2 and IA had the benefit of experienced solicitors and counsel. I summarised the way this matter was addressed in the exchange of correspondence on 8 and 18 November 2016 at  above. Despite that response, when deciding what decision to challenge, W2's legal advisers decided not to challenge the decision on the footing that it constituted a refusal of LTE. That remained their position even after the judge pointed this out during the hearing: see judgment at . There was no application to amend the grounds. An application to amend was made only after the draft judgment was circulated. Moreover, the evidence before the judge as to the difficulties W2 and his legal advisers would have in making an appeal effective when he is out of the country and the impact of the interference with his and his family all post-dates the Secretary of State's decision on 18 November 2016 and so cannot be relied on to impugn the legality of that decision. In my judgment, the judge's decision in her discretion to refuse the amendment at that stage is unassailable.
- The fact that the evidence post-dates the decision which would be the subject of the challenge also highlights the fact that no application for LTE using the statutory prescribed procedures has been made. I accept Ms Giovanetti's submission that, save in emergency conditions such as those that arose in the context of the Dublin Regulation in the case of the Syrian baby discussed in Secretary of State for the Home Department v ZAT and others  EWCA Civ 810,  1 WLR 4894 at , a request for an undertaking in a letter such as that dated 8 November 2016 does not suffice, and the statutory prescribed procedures should be followed.
- I add that the fact that the evidence submitted in support of the application for LTE pending the appeal post-dates the Secretary of State's decision also tells against permitting the amendment now, at the appellate stage, when it is possible for W2 to make a new application for LTE supported by evidence. Ms Giovanetti assured the court that such an application would be considered expeditiously by the Secretary of State, and stated that, if it is refused, it would be possible for a challenge to it to be considered with expedition by SIAC.
- Mr Fordham accepted that, if this court decided that SIAC could consider all the legal issues and give a practical and effective remedy, the appeal to SIAC would be an adequate alternative to judicial review. He accepted that SIAC could consider the majority of the issues raised on behalf of the appellants, but identified the two questions to which I have referred at  –  above which he submitted showed the inadequacy of an appeal in SIAC and justified the proceedings by way of judicial review.
- It was common ground that SIAC could consider the following issues: (a) whether the Secretary of State had failed to give notice in accordance with the 2013 Regulations; (b) whether there was a failure to consider risks to W2 in his country of origin and nationality; (c) the substantive and procedural aspects of the family's rights under article 8, and (d) the duty under section 55 of the 2009 Act. This was because, subject to the effect of the decision in S1's case in relation to an appeal under section 2B of the SIAC Act 1997, Mr Fordham accepted that although appeals under section 2 of the 1997 Act are limited to rights under the ECHR, SIAC had jurisdiction to deal with all the article 8 and section 55 grounds upon which the decision to make the deprivation order was challenged as part of the appeal. That this was envisaged in this case is seen from the fact that they were included in the Scott schedule of matters to be considered in the appeal.
- The first issue which Mr Fordham submitted showed the inadequacy of an appeal in SIAC is that, as a result of the decision in S1's case, SIAC does not have jurisdiction to consider a challenge to the timing of the deprivation order in the sense that it could not consider whether the Order was unlawful because it was made while W2 was outside the United Kingdom. The second issue is that the unavailability of interim relief in a SIAC appeal means that it cannot deal adequately with the determination of whether, in order for the SIAC appeal to be effective, W2 should be in the United Kingdom for that appeal.
- Mr Fordham submitted that justice requires that W2 be returned for his SIAC appeal. Because the appeal itself could not be the forum to decide whether it is necessary for W2 to be in the country, the unavailability of interim relief in a SIAC appeal and its availability in judicial review means that it cannot be said at this interlocutory stage that the appeal would be an adequate alternative to judicial review. He also submitted that the possibility of appealing on human rights grounds against a refusal to grant LTE pending the appeal was not an adequate alternative remedy.
- Ms Giovanetti submitted that SIAC has jurisdiction to deal with all the issues raised on behalf of the appellants, either in the section 2B appeal or in an appeal under section 2 against any refusal of leave to W2 to enter the United Kingdom pending the section 2B appeal. She submitted that SIAC is better equipped to hear challenges such as those made in this case because, unlike the Administrative Court, it is a fact-finding body which hears live evidence, the panel will have wing members with appropriate expertise, and it has a closed material procedure to test evidence which cannot be disclosed to an appellant. She submitted that the unavailability of interim relief did not mean SIAC has no practical and effective way of determining whether W2 can participate effectively in the appeal or deal with the article 8 rights of the family. Those matters could be considered as preliminary issues in the section 2B appeal and in a section 2 appeal against any refusal to grant W2 entry clearance pending the appeal, which could be expedited.
- (i) Does SIAC have jurisdiction to consider whether the Order was unlawful because it was made while W2 was outside the United Kingdom? The answer to this question depends on the effect of the decision in S1's case, and in particular the statement of Burnett LJ (as he then was) at . It also depends on the extent to which, in the circumstances of this case, a challenge to the deprivation order should be seen as a collateral attack on the earlier decision to make the order.
- In S1's case the subjects of the deprivation decision had been living in Pakistan for 18 months on 31 March 2011 when the decision was made to deprive them of their citizenship. In SIAC's decision dated 26 July 2012 (SC/106/107/108/109/11), Mitting J stated (at ) that the Secretary of State "had every reason to believe that the appellants were not in the United Kingdom. Accordingly, she can be taken to have known that any appeal against her decision…could only be brought from abroad". He also stated (at ) that "on the facts of this case, there is nothing to indicate that the Secretary of State deliberately waited until the appellants had left the United Kingdom before making the decision". As required by the statutory scheme, the notices of the decision were served at the last known address of S1 and the others, which was in the United Kingdom. The deprivation orders were made on 2 April 2011. The argument that the Secretary of State acted illegally by depriving persons of British citizenship while they were out of the jurisdiction and in Pakistan and/or refusing to facilitate their return and entry to the United Kingdom pending their appeals was rejected by SIAC and by this court.
- SIAC had provided three answers of varying complexity to the argument that the timing of the deprivation order in that case made it impossible for the appellants in that case to return to the United Kingdom where they would be entitled to remain pending the resolution of their appeal. Burnett LJ dealt with SIAC's "simple answer" at . He stated that the answer was that:
"SIAC had no jurisdiction to consider the timing of the deprivation order. SIAC noted, correctly in my judgment, that the statutory scheme envisages two distinct stages. First, the decision to deprive and then (but separately) the deprivation order. SIAC is not empowered to hear an appeal against the deprivation order, still less its timing. As SIAC observed, it is difficult to see how a decision lawfully made could become unlawful in consequence of the timing of the subsequent order."
- It is instructive to note that in SIAC's decision dated 26 July 2012, Mitting J, then its President, stated at [13(ii)]:
"Unless SIAC has jurisdiction to consider the timing of the making of the deprivation order as part and parcel of the decision to make the order, it cannot have jurisdiction to determine an appeal against the timing and its consequence" because the statutory scheme provides for two distinct steps and because, even if there was jurisdiction to determine a challenge to timing, SIAC considered it difficult to see "how a decision, lawful when made, could be made unlawful by the timing of a subsequent order" (emphasis added).
Mitting J also stated at  that SIAC did not believe that it was entitled to treat the decision to deprive the appellants of citizenship and the making of the order doing so as a composite decision permitting it to review every aspect of it.
- All the advocates in the case before us considered that to restrict the jurisdiction of SIAC in this way is problematic and will cause difficulties. But they differed as to whether paragraph  is part of the ratio of S1's case. Mr Fordham submitted that it is, and that this court is bound by it. It was for that reason that he submitted that the statutory appeal to SIAC was not an adequate alternative to judicial review. Ms Giovanetti submitted that it was not part of the ratio or alternatively that it was concerned with a different timing issue.
- In order to determine the effect of S1 and in particular paragraph , it is necessary to consider the two other decisions of this court to which I have referred, GI and L1. Both concerned naturalised British citizens who had been born in Sudan to whom the Secretary of State sent notices of her decision to make an order depriving them of their British citizenship while they were out of the country and then made the orders. The Secretary of State also personally decided to exclude them from the United Kingdom because their presence was not considered conducive to the public good and made an exclusion order. In both cases the legal proceedings challenging the decisions consisted of an appeal against the decision to make the deprivation orders and judicial review proceedings against the Secretary of State's personal decision to exclude them.
- GI had left the country for Sudan while on bail for a public order offence and both the decision to make a deprivation order and the order were made while he was in Sudan. It is likely that the notice (in a letter dated 11 June 2010) was sent to his last address in the United Kingdom, but this is not stated in the judgment. The order was signed on 14 June 2010. The argument that the exclusion order was unlawful because it prevented him from effectively pursuing his appeal in the United Kingdom was rejected by Mitting J on 19 July 2011 and by this court on 4 July 2012. It does not appear that ECHR article 8 was in play: see the summary of the arguments in this court,  EWCA Civ 867 at  and  and article 8 is not mentioned in the section on procedural fairness at  – . It should also be noted that, at the time of the proceedings in GI's case in 2011, there was no right of appeal or review to SIAC against a decision to exclude. The same was true of the proceedings in S1 and others, where Mitting J's decisions were given in July and December 2012. The only remedy was by judicial review. The position changed on 25 June 2013 when section 2C was inserted into the SIAC Act 1997 giving it jurisdiction to review exclusion directions which are certified on national security grounds. There was no exclusion order in SI's case. Burnett LJ commented in that case at  that, had the appellants in that case made good their concerns, he was unpersuaded that there was anything within the power of SIAC to help them and that the appropriate course was to ask the Secretary of State to allow them to enter the United Kingdom to prosecute their appeals and to challenge any refusal in judicial review proceedings. I observe that his comment does not reflect the statutory scheme.
- In L1's case, a submission was made to the Secretary of State asking her to decide in principle that the next time L1 left the United Kingdom he should be deprived of his citizenship and excluded from the United Kingdom. On 3 July 2010, he travelled to Sudan with his family, apparently for the school holidays. On 9 July 2010, notice of the decision to make a deprivation order was sent to his last address in the United Kingdom, and on 12 July 2010 the deprivation order was signed. A judgment in December 2010 dealt with two preliminary issues that are not relevant to the matters before us. In 2013, an appeal, originally stayed pending the appeal in GI's case, was allowed and the matter was remitted to SIAC, and came before a panel presided over by Irwin J. After the judicial review against the decision to exclude L1 was certified by the Secretary of State under the new section 2C of the SIAC Act 1997 in November 2013, the judicial review was stayed in favour of a statutory review by SIAC under section 2C. The stay was by consent following an indication by Irwin J that applications to lift it could be made if that was necessary to obtain any relevant interlocutory relief which was not within the power of SIAC given the provisions of section 2C(4). For the complex and lengthy history of the proceedings in SIAC, see L1  UK SIAC SC 100 2010 at  - , 4 August 2014.
- In L1's case, SIAC's judgment dealt with the abuse of process point, that the Secretary of State deliberately delayed giving a notice until she knew that L1 had left for Sudan, under two procedural heads. One was as a preliminary point in the appeal. The other was as a statutory review of the Secretary of State's decision to exclude him. Irwin J (at ) emphasised that:
"there is no appeal from the order depriving [the person] of citizenship. The appeal is triggered by the notice of the intention to make such an order".
SIAC was thus was well aware of the position. Notwithstanding this, in order to consider whether the course of conduct by the Secretary of State amounted to an abuse of process, SIAC had to consider timing, and it did so at , ,  and . It concluded at  that:
"We reject the submission that Parliament must have intended a clear time sequence of notice to be followed by decision, and giving effective or actual notice to the appellant or others in his position. The remarkable feature of the sequence of obligations spelled out in the statute is that there is no stipulated period between the notice and the decision".
At  it stated "it is our view that it is legitimate for the Home Secretary to bear in mind national security considerations when looking at the timing of legal action".
- When L1's case came to this court, it was aware that SIAC had dealt with the abuse point under two procedural heads. It was accepted that there was no right of appeal on the abuse point that had been taken as a preliminary issue because the judgment was not "a final determination". For this reason, and in order to be able to deal with both procedural heads, the court constituted itself as both a Divisional Court and the Court of Appeal. This court accordingly was aware of the different procedural routes through which the matter had come before it. It proceeded on the basis that both procedural routes were open to L1 in SIAC.
- There is undeniably tension between the statement in S1 at  and what happened in L1's case. Since, in S1's case Burnett LJ referred extensively to the Court of Appeal decision in L1's case and otherwise approved it (see for example  - ) it would be odd if something not considered a jurisdictional bar in L1's case was held to be a jurisdictional bar in S1's case. It must, however, be recognised that in L1's case, although the court proceeded on the basis that both procedural routes were open to L1, it does not appear to have been argued that the fact that the SIAC appeal process was limited to the making of the decision and not the order meant that there was no jurisdiction to consider the abuse ground.
- What is clear from the authorities is that the fact that the statute does not specify an interval between the notice of the decision and the making of the order does not preclude a very short time limit. It is also clear that, as was stated in S1's case by SIAC and by this court, if the decision to make a deprivation order is lawful the timing of the subsequent order does not make it unlawful.
- In my judgment, notwithstanding the tension, there is no inconsistency between what happened in L1's case and what was said in the crucial paragraph in S1's case. This is because the "timing" points considered in the two cases were different. For the reasons I give below, in L1's case the issue concerned the timing of the decision to deprive him of his British citizenship, for which SIAC has jurisdiction, but in S1's case it concerned the timing of the deprivation order.
- As I have stated, at the point when the decision was made to deprive S1 and the others of their citizenship, they had been living in Pakistan for 18 months and the Secretary of State had every reason to believe that they were not in the United Kingdom. The deprivation orders were made two days after the decision in order (see S1 at ) to prevent them from travelling to the United Kingdom. The fact that the appellants in S1's case had been out of the jurisdiction for 18 months when the decision to deprive them of their British citizenship was made and that nothing indicated that the Secretary of State deliberately waited until they had left the United Kingdom before making the decision means that case is unlike either L1's case or the present case. This is because L1 and W2 were based in the United Kingdom and it was decided while they were in the jurisdiction to make the decision and serve notice of it while they were temporarily out of the jurisdiction and then to make the order. It could be said that the timing of the decision was part and parcel of the process.
- In S1's case, while (as Mitting J stated at ) the sequence of steps taken by the Secretary of State can be taken to have been purposively timed, there was nothing about the timing of the decision itself that arguably made that decision unlawful. Burnett LJ's statement at  should be seen in the context of the factual circumstances of S1's case. S1 and the others had been out of the United Kingdom for some 18 months before a decision was made and the notice was given, and it was found that the Secretary of State had not deliberately waited until they left the United Kingdom before making the decision. In those circumstances, what the court was addressing was the timing of the subsequent order which prevented the appellants from travelling to the United Kingdom. It was unlikely that, on those facts, a decision about the timing of the order was "part and parcel" of the decision to make the order and therefore unlikely that a challenge to the order could realistically be seen as a collateral attack on the earlier decision to make the order.
- For these reasons I do not consider that the judge fell into error in stating at - of her decision that framing a challenge as one to the deprivation order should not raise a jurisdictional bar to a SIAC appeal if that challenge is in truth a collateral attack on the decision to make the order as to which SIAC clearly has jurisdiction. The judge expressed herself succinctly and tautly but her position is not, in my judgment, inconsistent with what Burnett LJ stated in S1's case at .
- The judge made it clear in  that she was not stating that SIAC had jurisdiction to consider the timing of a deprivation order. She was also, in my judgment, correct to consider what the substance of the challenge in fact was. Otherwise it would be open to a party to avoid the statutorily designated appeal by framing a challenge that is in substance within the jurisdiction of the appellate body as one against another target, over which the appellate body does not have jurisdiction. Since the interval between the decision and the order is often as short as it was in the present case, it is important to consider all the circumstances and it may be artificial on the facts of a particular case to make a sharp distinction between the decision and the order. Moreover, as was submitted on behalf of the Secretary of State, although the right of appeal is against the decision to make a deprivation order, appeals against that decision consider the necessary effects of a deprivation order, and do so even if no deprivation order has been made at the time of the appeal. See, for instance, Ahmed and others (deprivation of citizenship)  UKUT 00118 (IAC) where the Upper Tribunal considered the "reasonably foreseeable consequences" of deprivation. Those matters are properly considered in appeals under section 40A of the 1981 Act as amended or, where a decision has been certified on national security grounds, under section 2B of the SIAC Act 1997.
- (ii) Does the unavailability of interim relief in a SIAC appeal mean that SIAC cannot deal adequately with the determination of whether, in order for W2's appeal to be "effective", he should be in the United Kingdom? The question is how to determine whether an out of country appeal would, in the circumstances of this case, be, in the language of Lord Wilson in Kiarie and Byndloss, "effective". Can this be determined practically and effectively as a preliminary issue in the section 2B appeal or by way of a section 2 appeal against a refusal to grant W2 LTE pending the appeal?
- It was common ground that interim relief enabling W2 to return to this country would in fact be the equivalent of substantive relief in the judicial review because it would not then be possible to remove him from the United Kingdom pending the conclusion of the SIAC appeal. Mr Fordham accepted that it followed that the test in NWL Ltd. v Woods  ICR 755, enabling the court to take into account the relative strength of each party's case, applied. But he submitted that, absent any power in SIAC to order W2's presence, the determination of this question as a preliminary issue by SIAC could not be seen as an adequate alternative to judicial review.
- The resolution of this issue may be interwoven with whether the possibility of seeking judicial review challenging such a refusal is an adequate alternative remedy to a judicial review of the deprivation order and whether it is necessary for W2 to make a formal application for LTE. I have given my reasons for concluding that the application to amend the pleadings to enable the refusal to give the undertakings requested in the letter dated 8 November 2016 to be challenged should be refused and why there should, in this case, be a proper application for such LTE, supported by evidence, at  –  above.
- Mr Fordham described the power to grant discretionary LTE as a "follow-up" discretionary power. He submitted that a section 2 appeal against a refusal to grant such LTE pending the appeal is not an adequate alternative remedy to a judicial review of the deprivation order for a number of reasons. First, where the Secretary of State has personally directed that the exclusion of the person is conducive to the public good, paragraph 320 of the Immigration Rules requires leave to be refused, and a discretion to admit outside the rules is not an adequate alternative. He relied on Lord Wilson's statements in Kiarie and Byndloss at , summarised at  below. Secondly, a challenge to a refusal to grant LTE is not a challenge to the decision which is the primary target, which is the deprivation of citizenship. He also submitted that there may be questions about delay.
- Ms Giovanetti submitted that the Administrative Court should only assist SIAC in cases where it was very clear that SIAC is unable to provide an effective and practical remedy, and that particular care is needed with respect to untested national security issues. She maintained that the judge was correct to say (at ) that, in determining whether an out of country appeal would be effective and whether W2 should be given LTE the United Kingdom, it was important not to pre-judge the Secretary of State's assessment of the risk to national security posed by W2, or to make an order which might well have the effect of pre-judging the appeal by making him irremovable, despite his assessed risk and the fact the merits of his appeal not having been tested. The SIAC process, with its lay members with relevant expertise and its closed material procedure, is the appropriate process for this.
- The position in relation to out-of-country appeals must now be assessed in the light of the principles identified by the Supreme Court in Kiarie and Byndloss. In particular, the judge's reliance on the decision of this court in R(GI) v Secretary of State for the Home Department  EWCA Civ 867,  QB 1008 at  and S1's case at  that there was a burden on the person to provide "clear and compelling evidence" that he could not participate effectively in the appeal from abroad must be reassessed.
- The appellants in Kiarie and Byndloss were foreign national offenders who were in the United Kingdom and who the Secretary of State wished to deport. The Secretary of State rejected submissions that their deportation would breach their rights under ECHR article 8. She made deportation orders and, pursuant to section 94(B) of the Nationality Immigration and Asylum Act 2002 as amended by the Immigration Act 2014, certified that their removal pending appeal would not be unlawful under section 6 of the Human Rights Act 1998. It appears that the need to consider this and whether there is a Convention compliant system for out-of-country appeals was overlooked at the time of the original decisions: see  and . The Supreme Court held that the considerable practical difficulties that faced an out-of-country appellant meant that the burden fell on the Secretary of State to establish that such an appeal would be effective and fair and therefore met the procedural requirements of article 8. It held that she had not established this.
- Lord Wilson, with whom Baroness Hale, Lord Hodge and Lord Toulson agreed, gave the lead judgment. He referred (at ) to the public interest in removing a foreign national criminal in advance of an appeal that results from the risk that if permitted to remain the criminal might take that opportunity to reoffend. But he stated that that public interest "may be outweighed by a wider public interest which runs the other way". That wider public interest is "the public interest that, when we are afforded a right of appeal, our appeal should be effective": see also  and his discussion of the practical issues concerning the presentation of an out of country appeal referred to at  - ,  and .
- In the last of these paragraphs, , Lord Wilson referred to the suggestion of the Secretary of State that the tribunal could, by direction, stress the desirability of an appellant's attendance before it and that, if the Secretary of State then failed to facilitate such attendance, to seek judicial review of the certification of the case and, if successful, a consequential order for the return of the appellant, at least pending the appeal. He stated that "whether the tribunal could, or if so would, give such a direction in the teeth of a subsisting certificate is doubtful; and in any event it seems entirely impracticable for an appellant abroad to apply first for the unenforceable direction and then for judicial review of any failure to comply with it".
- Lord Wilson referred (at ) to the need in the case of the appellants in that case to be afforded the opportunity to give live evidence and to the financial and logistical barriers to giving evidence on screen. He concluded (at ) that deportation pursuant to the certificate would breach the procedural requirements of article 8 because it would in particular interfere with "the aspect of their [article 8] rights which requires that their challenge to a threatened breach of them should be effective". He stated:
"the burden then falls to the Home Secretary to establish that the interference is justified and, in particular that it is proportionate: specifically, the deportation in advance of an appeal has a sufficiently important objective; that it is rationally connected to that objective; that nothing less intrusive than deportation at that stage could accomplish it; and that such deportation strikes a fair balance between the rights of the appellants and the interests of the community".
He concluded that the Home Secretary had failed to establish that the balance was fair.
- In Kiarie and Byndloss the Supreme Court referred to the Strasbourg decision in Al-Nashif v Bulgaria  36 EHRR 37, a national security case in which that court held that deportation interfered with the applicant's article 8 rights and that it followed from the absence of any facility to appeal against the deportation order that the interference was "not in accordance with the law". The Supreme Court did not appear to have had the cases of GI, L1 and S1 before it, or the decision of the European Court of Human Rights ("ECtHR") on 2 February 2017, K2 v United Kingdom Application No. 42387/13, holding that GI's application was inadmissible. Although the name of the applicant in the ECtHR case is given as K2, it was common ground before us that the application concerned GI.
- In K2 v United Kingdom the applicant's case, and the evidence given by him and his lawyers, was that if he were to give evidence by Skype or video link there would be a risk that he would become of adverse interest to the Sudanese security service which would in turn put his safety at risk, and that his lawyers could not fulfil their professional duties to him unless they were able to speak to him face to face and in confidence: see ECtHR at  and see also  and . The ECtHR (see ) approved the approach of SIAC in GI's case.
- The ECtHR recorded that SIAC had held that an out-of-country appeal was not intrinsically unfair, and that clear objective evidence was required that a person was unable to instruct lawyers or give evidence to SIAC. It stated that a subjective fear by the authorities of another country would not be sufficient. The ECtHR also noted that the applicant was able to judicially review the decision to exclude him from the United Kingdom and to raise the arguments that his exclusion would prevent him from participating effectively in the appeal. It referred to the findings of SIAC that, having considered the material before it, there were a number of ways in which the applicant could safely communicate with his lawyers, and that his fears relating to the interception of communications were unfounded. It also referred to the statement by this court in that case (at ) that the Secretary of State had put forward "a substantial case to the effect that the applicant would be perfectly able to pursue his appeal from Sudan".
- The ECtHR stated that it was not in a position to call into question the findings of the English courts that there did not exist any clear objective evidence that the applicant in that case was unable to instruct lawyers while outside the jurisdiction. It also stated that it could not ignore the fact that the procedural difficulties the applicant complained of were not a natural consequence following the simultaneous decision to deprive him of his citizenship and exclude him from the United Kingdom, but rather of his decision to flee the country before he was required to surrender to his bail. It held that insofar as the applicant's complaint under article 8 concerned the decision to deprive him of his citizenship it was manifestly ill-founded. It therefore took a different approach to the one adopted by the Supreme Court in Kiarie and Byndloss in relation to a person who was still in the United Kingdom whom the Government wished to forcibly remove.
- It must also be noted that at  of his judgment, Lord Wilson distinguished the position of people abroad who apply unsuccessfully for entry clearance and have a right of appeal to a tribunal which they are required to bring from abroad and the position of those in the United Kingdom who are required to leave before bringing their appeal. He stated that appeals against refusals of entry clearance are by those already abroad, are often in a narrow compass about their ability to satisfy the requirements of the Immigration Rules concerning documentary evidence, and do not usually include human rights claims. He stated that it is the oral evidence of the sponsors in the United Kingdom rather than of the applicant which is often the more important. Since the hearing, on 5 December 2017, the Court of Appeal handed down judgment in R (Ahsan & others) v SSHD  EWCA Civ 2009. It held that an out of country appeal by appellants whose student visas were cancelled would not satisfy the procedural requirements of article 8, and that such a breach of article 8 could be avoided by allowing them to bring judicial review against the decision in-country.
- Mr Fordham submitted that what is important is whether the appeal raises human rights issues. The fact that W2 was abroad away from his family did not lead to a territorial exclusion for the article 8 rights of him and his family and therefore this factor was not a ground for distinguishing Kiarie and Byndloss. Accordingly, while he accepted that it was not of itself illegal to make a deprivation order while an individual was out of the country, the effect of making the deprivation order in this case gave the Secretary of State a litigation advantage because it weakened W2's prospects on an appeal both in the practical senses discussed in Kiarie and Byndloss and because it deprived him of a defence, his human rights shield which protected him while he was in this country.
- As Mr Fordham recognised, the question for this court is whether an appeal under section 2 or section 2B of the SIAC Act 1997 will be a practical and effective remedy for determining whether an out of country appeal against the decision to make the deprivation order would be "effective". I do not consider that the circumstances of this case are analogous to the scenario considered by Lord Wilson at  (see  above) of Kiarie and Byndloss. This is because in this case there is no question of W2 seeking first an unenforceable direction and then to judicially review that. He would be pursuing an appeal against a decision by the Secretary of State. If he is successful in that and SIAC considers that his presence in the United Kingdom is necessary in order for his appeal to be effective it will allow the appeal. And (see R (Evans) v Attorney General  UKSC 21,  AC 1787 at ) that decision will bind the Secretary of State.
- Accordingly, the matter before SIAC in an appeal is one where an effective remedy is available. SIAC will thus be able to consider the application of Kiarie and Byndloss and Ahsan's case to the circumstances of W2 and the matters which he wishes to raise in his appeal. It will have available the evidence submitted by him and others in support of his submission that an out of country appeal will not be effective in his circumstances, and it will have any evidence the Secretary of State files in support of the submission that such an appeal will be effective. This will mean that SIAC, the relevant specialist tribunal, can "look in detail at what is required to ensure an effective appeal in cases such as this": see Lord Carnwath in Kiarie and Byndloss at . Lord Carnwath also stated (see  above) that there are practical and principled reasons for appeal courts not considering factual issues which are best considered by the relevant specialist court or tribunal.
- SIAC, with the participation of its lay members with relevant expertise, will be able to assess the difficulties claimed by W2 in instructing lawyers and the extent to which oral evidence by him is necessary (for example in relation to the impact of the separation on his family) and to decide whether, in the light of Kiarie and Byndloss, the refusal of entry in his circumstances is unlawful. It will be able to consider whether there is a Convention-compliant system for the conduct of a SIAC appeal from abroad. In doing so, it will be able to take into account the matters relied on before this court by Ms Giovanetti in distinguishing the circumstances of this case from those of the appellants in Kiarie and Byndloss. They include the fact that SIAC has video conferencing facilities which have been frequently used in the past by appellants who are abroad, what SIAC will do to facilitate steps to enable W2 to give evidence orally to it, the extent of the legal advice available to W2 and his ability to give his lawyers instructions, and the position in relation to experts.
- SIAC will also be able to consider whether the burden of showing that an out of country appeal will be effective lies on the Secretary of State in this case, as Kiarie and Byndloss held that it did in that case. Ms Giovanetti submitted that that case was considering a materially different factual and legal context because the decisions under challenge were decisions to remove individuals who were in the United Kingdom where forcible removal would have led to a dramatic alteration in their circumstances, whereas W2 left the United Kingdom voluntarily. She submitted that it was that forcible removal which the Secretary of State was called on to justify but that W2's position is in principle no different to a person who has never entered the United Kingdom. She relied on the ECtHR's admissibility decision in GI's case: K2 v United Kingdom. She also submitted that the legal context in Kiarie and Byndloss was different. This, she argued, is because sections 78 and 94B(2) of the Nationality, Immigration and Asylum Act 2002 provided that anyone in the United Kingdom with an arguable human rights appeal against removal should be permitted to stay until their appeal was concluded unless and until the Secretary of State certified that earlier removal would not breach their rights under the ECHR. That certification was a departure from the general rule which the Secretary of State had to justify. She argued that, by contrast, there is no statutory presumption that out of country appellants should be permitted to travel to the United Kingdom to conduct their appeals here and that article 8 does not create such a presumption. I express no views on these matters because, in this appeal, the role of this court is to consider whether SIAC is able to decide these matters and give a practical and effective remedy in respect of them.
- (iii) Conclusion: For the reasons given at  –  above, I do not consider that the judge erred in stating that framing a challenge as one to the deprivation order did not raise a jurisdictional bar to a SIAC appeal if that challenge is in truth a collateral attack on the decision to make the order as to which SIAC clearly has jurisdiction. For the reasons given at  –  above, I have concluded that there is no reason why SIAC, in the course of a section 2 appeal of a refusal of LTE, could not determine and give a practical and effective remedy to the question whether it is necessary for W2 to be in the country for his appeal to be effective and to do so before the hearing of the substantive appeal. This could be done by hearing the appeal against a decision to refuse W2 LTE if, as seems likely to be the case, the Secretary of State will so decide, together with its consideration of this issue as a preliminary issue in the appeal. It is, of course, for SIAC to decide whether the case merits expedition. I observe only that Ms Giovanetti stated that the Secretary of State would make a decision on any application for LTE with expedition and, if the application is refused, facilitate a challenge to it being considered with expedition by SIAC.
- I have not dealt with the submissions on the family's rights under article 8, the duty under section 55 of the 2009 Act, and the other matters upon which the appellants rely. Since it was accepted that SIAC could consider the remainder of the matters on which the appellants rely, it is not necessary to do so.
- For these reasons, I would dismiss this appeal.
Lord Justice Singh :
- I agree with the judgment of Beatson LJ.
Lord Justice Davis :
- I also agree.