B e f o r e :
LORD JUSTICE BRIGGS
LORD JUSTICE BURNETT
LORD JUSTICE LINDBLOM
|| S1, T1, U1 & V1
||- and -
||Secretary of State for the Home Department
Stephanie Harrison QC & Amanda Weston (instructed by Birnberg Peirce & Partners) for the Appellants
Robin Tam QC & Rosemary Davidson (instructed by Government Legal Department) for the Respondent
Charlie Cory-Wright QC and Zubair Ahmad (instructed by Special Advocates' Support Office) as Special Advocates
Hearing dates: 15th, 16th & 17th March 2016
HTML VERSION OF JUDGMENT
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LORD JUSTICE BURNETT:
- The appellants are four members of the same family who have been deprived of their British citizenship pursuant to section 40 of the British Nationality Act 1981 ("the 1981 Act"). S1 is the father of T1, U1 and V1. S1's wife is a naturalised British citizen and they have two other children who are British citizens, a daughter who is now 24 years old and a disabled son who is now 19 years old. The reason for the Home Secretary's decision was that she considered that the appellants were active members of a terrorist organisation, namely Lashkar-e-Tayibba ["LeT"]. LeT is a proscribed terrorist organisation in the United Kingdom, the United States and Pakistan. She also considered that they were supporters of Al Qaeda. The notices of the decisions by the Home Secretary to deprive the appellants of their citizenship were dated 31 March 2011 and the orders of deprivation followed on 2 April 2011. The notices of decision were served at the last known address of the appellants, which was in the United Kingdom, as required by the statutory scheme.
- The family had moved to Pakistan in September 2009, a fact which was known to the Home Secretary. All four of the appellants are Pakistani nationals and were thus dual nationals, although before SIAC they contested that fact. One of the complaints advanced on behalf of the appellants by Miss Harrison QC is that the Home Secretary would not allow them to return to the United Kingdom to prosecute their appeals. On 21 December 2012 the Special Immigration Appeals Commission, presided over by Mitting J, ("SIAC") dismissed their appeals against the Home Secretary's decisions to remove their British citizenship. This is their appeal against SIAC's decision.
- In the course of the proceedings before SIAC preliminary arguments had been advanced by the appellants that were considered in determinations dated 27 October 2011 and 26 July 2012. The first preliminary issue determined by SIAC was whether the removal of the appellants' British citizenship would render them stateless. Section 40(2) of the 1981 Act prohibits the removal of citizenship if that is the result. SIAC determined that issue against the appellants. Although that conclusion was challenged in the appellants' notice as their first ground of appeal, it has fallen away. SIAC's decision has been vindicated by the fact that Pakistan has not only accepted that each is its national, but has issued passports to them. The second preliminary issue was whether the appeals should be allowed because it was impossible to determine them fairly as a result of the appellants' absence from the United Kingdom. For reasons to which I shall return, SIAC determined that issue against the appellants.
- Permission to appeal was initially refused by Jackson LJ on paper but was granted at a renewed oral application by Floyd LJ on 26 November 2013. At a directions hearing on 10 April 2014 he stayed the appeal until after judgments had been given by the Supreme Court in Pham v Secretary of State for the Home Department. Those judgments were handed down on 25 March 2015:  UKSC 19;  1 WLR 1591. The reason why these appeals were stayed was because at the heart of the appeal in the Pham case was the correct approach to questions of statelessness for the purposes of section 40(2) of the 1981 Act. The parties believed that the case might have had an impact on the statelessness question and thus the outcome of these appeals. The Pham case traversed other important matters relevant to the exercise of the power to remove British citizenship, which led Miss Harrison to reformulate the issues she wished to argue on behalf of the appellants. There was no application to amend the appellants' notice, but instead the reformulated issues emerged in the appellants' skeleton argument. In particular, fresh arguments by reference to EU law and proportionality (whether in play under EU or domestic law), were advanced. Mr Tam QC objected on behalf of the Home Secretary to the appellants being allowed to argue these points. He submits that they should have been raised by way of amendment to the appellants' notice shortly after the Supreme Court gave judgment. He complained, albeit with moderation, that the skeleton argument in which these points were developed was itself late (he is right about that) and so placed the respondent's team in difficulty.
- Mr Tam is correct in submitting that the new grounds should have been advanced in an amended appellants' notice, with permission being sought in a timely fashion well in advance of the hearing of the appeals. That said, we granted permission to Miss Harrison to argue the full amplitude of the points raised in her skeleton argument. The reasons for my concluding that was appropriate in this case may be stated shortly. First, there would be an air of unreality in considering these appeals without applying the principles set out in Pham. Secondly, Mr Tam did not seek to suggest that the Home Secretary was prejudiced, as opposed to being inconvenienced, by the late entry of the new points into the appeal. Accordingly, the issues for consideration in this appeal may be distilled to the following:
i) Can the SIAC decisions survive Pham on the grounds that (a) the common law requires the removal of British citizenship to be proportionate, given the severe adverse consequences for the individual concerned; (b) EU law may apply (with a similar approach to proportionality) and would also import greater procedural protections in cases involving national security than the common law and statute provide in proceedings in SIAC;
ii) A discrete argument is raised on behalf of S1's wife and youngest son by reference to the decision of the Luxembourg Court in Zambrano v Office national de l'emploi (Case C-34/09)  QB 265. Depriving S1 of his British citizenship, and thus as a consequence his EU citizenship, is said to deprive S1's wife and their son of the genuine enjoyment of the substance of the rights which their status as EU citizens conferred;
iii) Did SIAC err in concluding that the procedure by which the justification for the decisions to remove British citizenship was challenged in the SIAC appeals accorded with the principles of fairness and natural justice guaranteed by the common law and EU law;
iv) Did SIAC err in concluding that the appellants' residence in Pakistan at the time of the deprivations of citizenship meant that they were outside the jurisdiction of the European Convention on Human Rights ("the Convention") for the purposes of article 1, so that their arguments that they were at risk of treatment contrary to articles 2 and 3 of the Convention at the hands of both the LeT and the Pakistani authorities failed for want of jurisdiction;
v) Was SIAC correct to conclude, on the assumption that it was wrong on the question of jurisdiction, that there was no such risk in any event.
vi) Was the removal of the appellants' British citizenship compatible with article 8 of the Convention, in particular having regard to its impact upon S1's wife and two youngest children whose practical ability to exercise their right to live in the United Kingdom without S1 is said to have been impaired.
- The appellants' case is that their fairness arguments ought to have succeeded before SIAC in the course of the appeal with the consequence that the appeals should have been allowed. To forestall the argument that SIAC could not allow the appeals in those circumstances within the statutory scheme, the appellants have issued parallel judicial review proceedings against the Home Secretary and SIAC. The appellants attack and seek to quash the Home Secretary's decision to refuse to allow them to return to the United Kingdom to conduct their appeals. They also seek to quash SIAC's decision refusing to accede to their arguments relating to fairness advanced at the second preliminary hearing.
- The appeal before SIAC was conducted in three distinct environments: open hearings, closed hearings and private (confidential hearings). The first preliminary hearing, concerning the question of statelessness, was conducted entirely in open. For the purposes of the appellants' second preliminary argument, namely that the appeals should be allowed because it was unfair to proceed in their physical absence from the United Kingdom, the majority of the argument and the written evidence was considered in the ordinary way in an open hearing. But SIAC also conducted a confidential hearing at the request of the appellants who wished to deploy evidence and argument in private. Private in this sense means that the parties were present and privy to the evidence and argument, but the public was excluded from that part of the hearing. SIAC is empowered by rule 43 of the Special Immigration Appeals Commission (Procedure) Rules 2003 ("the 2003 Rules") to accede to such a request from an appellant. It was not opposed by the Home Secretary. SIAC produced both an open and a confidential judgment dealing with that application. Miss Harrison invited us to hear argument in a private confidential hearing and for that purpose to read the confidential judgment and confidential material placed before SIAC. There was no objection from Mr Tam. We did so.
- At the substantive appeal before SIAC much of the evidence and argument was taken in a public open hearing. In addition, there was a closed hearing which considered the Home Secretary's closed or secret case against the appellants. In accordance with the statutory scheme that governs SIAC appeals, the appellants were excluded from that part of the hearing and were not privy to the closed material deployed by the Home Secretary. Mr Cory-Wright QC and Mr Ahmad appeared as Special Advocates to protect the interests of the appellants. The statutory scheme provides that the Special Advocates are served with all the closed material. An important part of their function is to argue, when appropriate, that material that is in the closed evidence could properly be disclosed without damage to the public interest, or could be summarised or gisted in some way. If SIAC concludes that material should be disclosed or gisted, the Home Secretary must abide by SIAC's decision, or alternatively withdraw that material from the appeal. At the closed hearing itself the Special Advocates may cross-examine any witness and make submissions on behalf of the appellants whose interests they are protecting.
- It follows that everything relating to the appeals that could be disclosed to the appellants and their advisors without such damage was disclosed.
- Mr Tam invited us to take account of SIAC's closed judgment and to conduct a closed hearing to enable him to develop arguments by reference to that judgment, which Mr Cory-Wright would be at liberty to counter. I note that there are no closed grounds of appeal as are sometimes encountered in cases of this sort. There is no suggestion made by the Special Advocates that more disclosure should have been given to the appellants or that the closed judgment discloses any additional error of law beyond those relied upon by the appellants. Mr Cory-Wright, supported by Miss Harrison, reminded us of the strong judgments of the Supreme Court in Bank Mellat v Her Majesty's Treasury (No 1)  AC 700 cautioning against the Supreme Court and the Court of Appeal conducting closed hearings unless it is strictly necessary to do so to achieve justice in the case. The arguments advanced by the parties proceeded on the basis that we should decide the issue whether to have a closed hearing and, if persuaded of the need, conduct it immediately after the open arguments were concluded. We canvassed an alternative course with the parties, which although potentially giving rise to some delay, inconvenience and added expense, we were minded to adopt. It had become clear that Mr Tam's primary case was that the appeals should be dismissed by reference to the open arguments, judgments and evidence together with consideration of the appellants' confidential case. If his primary submission was correct, there would be no need to consider the closed judgment or any arguments that might flow from it. In those circumstances we concluded that we should reserve our judgments having heard the open and confidential cases. We indicated that we would finally determine whether to conduct a closed hearing in the light of the conclusions we reached on the open and confidential material. It we were satisfied that the appeals should be dismissed there would be no call to consider the matter further. If we were not so satisfied on a ground which might be touched by the closed judgment we would invite further submissions on the question whether to hold a closed hearing and its scope.
- For the reasons which follow, I have concluded that the appeals should be dismissed on the basis of the open materials we have considered, taking account also of the confidential matters prayed in aid by Miss Harrison. For my part I consider it unnecessary to ask for further argument on whether we should take account of the closed judgment.
The Statutory Scheme
- Section 40(1) of the 1981 Act defines "citizenship status" by reference to the various different categories of British citizenship, nationals, protected persons and subjects. Section 40 continues:
"(2) The Secretary of State may by order deprive a person of citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.
(4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.
(5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying –
(a) that the Secretary of State has decided to make the order,
(b) the reasons for the order, and
(c) the person's right of appeal under section 40(A)1 or under section 2B of the Special Immigration Appeals Commission Act 1997 (c. 68)."
The ordinary right of appeal against a decision to make a deprivation order is to the First-tier Tribunal (section 40A(1)), save when the Home Secretary certifies that the decision was taken in reliance on material which cannot be made public in the interest of national security, in the interest of international relationships or otherwise in the public interest. In such a case the appeal is to SIAC (section 40A(2)). If an appeal is successful the First-tier Tribunal (or SIAC) may give a direction that an deprivation order under section 40 of the 1981 Act shall be treated as having had no effect (section 40A(3)). This last provision recognises that although the appeal is against the decision to make a deprivation order the order itself may well have been made before the hearing of an appeal. There is no appeal against the order itself. This provision enables the tribunal or SIAC to set the order at nought if the appeal against the decision is successful.
- Section 40(6) of the 1981 Act originally provided that no order depriving a person of citizenship could be made if he had an outstanding appeal or if the period provided in the relevant rules for serving a notice of appeal had not expired. This provision was repealed by the Asylum and Immigration (Treatment of Claimants etc) Act 2004 so that the Home Secretary may now make a deprivation order so long as the notification provisions of section 40(5) have been complied with. That is what she did with respect to these appellants. In cases where the person who is to be deprived of citizenship is in the United Kingdom, the repeal of section 40(6) enables the deprivation order to be made and followed swiftly by a decision to deport. Appeals against both decisions may then proceed in tandem. The consequence of the deprivation order being made whilst the person is outside the United Kingdom is that as a foreign national he will be unable from that moment to enter the country without leave. It is very difficult to conceive that the Home Office would grant leave for such a person to enter the United Kingdom if the premise of the deprivation of citizenship was that his presence would not be conducive to the public good.
- Section 2B of the Special Immigration Appeals Commission Act 1997 confers jurisdiction upon SIAC to hear appeals against the deprivation decisions identified in the 1981 Act. Section 5 empowers the Lord Chancellor to make rules, including rules which govern the closed material procedure and the functions of special advocates.
- The 2003 Rules were made pursuant to that power. The general duty of SIAC is identified in rule 4:
"(1) When exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.
(2) Where these rules require information not to be disclosed contrary to the public interest, that requirement is to be interpreted in accordance with paragraph (1).
(3) Subject to paragraphs (1) and (2), the Commission must satisfy itself that the material available to it enables it properly to determine the proceedings."
Rule 10 requires the Home Secretary to file a statement of evidence on which she relies if the appeal is opposed and any exculpatory material of which she is aware. Rule 10A provides for an exculpatory review in the light of any evidence filed by the appellant and also for SIAC to direct, on the application of either the special advocate or the appellant, that the Home Secretary should file further information. In the event that the Home Secretary objects to disclosure of any of the material to the appellant or his representative, that material is nonetheless served upon the special advocate. Rule 37 requires the Home Secretary to serve a statement of reasons for objecting to disclosure and to summarise or gist the withheld material to the extent possible without damaging the public interest. By rule 38 SIAC is obliged to fix a hearing to enable the Home Secretary and special advocate to make submissions on disclosure, unless the special advocate indicates that the objection is not challenged. At the hearing SIAC may uphold or overrule the Home Secretary's objection. It must uphold it if SIAC considers that disclosure would be contrary to the public interest, but it must also consider whether a summary should be served without harm. If the Home Secretary is overruled in respect of an aspect of the evidence, and the material supports her case, she has the choice whether to disclose it; but if it is not disclosed it may not be relied upon in the appeal. If the material is adverse to the Secretary of State's case or supports the appellant's case SIAC is given various powers to protect his interests.
Pham and the EU arguments
- As I have noted, the reason why these appeals were delayed pending the outcome of the Pham case in the Supreme Court was that the principal issue related to the meaning of the words "make a person stateless" in section 40(2) of the 1981 Act. Mr Pham had been born a Vietnamese national and had never been stripped of that nationality. He had later acquired British citizenship of which he was deprived by the Secretary of State on grounds of national security. The Vietnamese authorities refused to recognise him as one of their nationals. SIAC determined the question of statelessness as a preliminary issue in favour of Mr Pham. The Court of Appeal reversed that decision and was upheld in the Supreme Court. On his appeal to the Supreme Court Mr Pham also sought to argue that the decision to deprive him of citizenship was disproportionate and therefore unlawful under EU Law. Additionally, he sought to argue that because EU law applied he would be accorded procedural safeguards, not available under the statutory scheme governing SIAC appeals, described by the Luxembourg Court in ZZ (France) v Secretary of State for the Home Department (Case C-300/11)  QB 1136. He argued that he would be entitled to greater disclosure of the Home Secretary's national security case than afforded him under the domestic legislation.
- The foundation stone of the argument was that EU law governed decisions removing British citizenship. To advance the argument the appellant recognised that it was necessary to show that R (G1) v Secretary of State for the Home Department  QB 1008, to the contrary effect, was wrongly decided. In the event the Supreme Court did not decide the issue. It concluded that the removal of British citizenship was of such gravity that the common law would require a degree of intensity of review in any judicial proceedings that for practical purposes would satisfy the EU test of proportionality: see Lord Carnwath (with whom Lord Neuberger of Abbotsbury, Lady Hale of Richmond and Lord Wilson agreed) at paras 59 and 60; Lord Mance (with whom Lord Neuberger, Lady Hale and Lord Wilson agreed) at para 98; Lord Sumption (with whom Lord Neuberger, Lady Hale and Lord Wilson agreed) at paras 108 – 110. The upshot was that there was no practical difference between an EU law approach and the common law approach when a court reviews (as SIAC would on appeal) a decision to deprive someone of British citizenship. On the question of procedural safeguards, the Supreme Court considered that SIAC should determine, when dealing with the remitted appeal, whether EU law would have made any difference and "address the issues on alternative hypotheses, one that the Court of Appeal's decision in [the G1 case] was correct, and the other that it was incorrect", Lord Mance at para 71. This course was adopted by the Supreme Court in recognition that the question of the applicability of EU law may fall to resolved by that court or on a reference to Luxembourg at some stage.
The G1 and Rottmann Cases
- Miss Harrison readily accepts that we are bound by the decision of this court in the G1 case. It concerned a Sudanese born naturalised British citizen who left the United Kingdom whilst on bail for public order offences. The Home Secretary decided to deprive him of his British citizenship on grounds of national security because he was assessed to be involved in terrorist-related activities. Three days later he was deprived of citizenship and an exclusion order was made. Much of the argument before the Court of Appeal related to his contention that he should have been allowed to return to the United Kingdom to prosecute his appeal before SIAC despite the deprivation and its grounds. The judgment of Laws LJ has much to say on the issues of procedural fairness which are raised by Miss Harrison in this appeal, to which I shall return when considering the appellants' fairness ground.
- Laws LJ considered the arguments advanced on behalf of the appellant on the application of EU law between paras 30 and 44. They were founded on the judgment of the Luxembourg Court in Rottmann v Freistaat Bayern (Case C-135/08)  QB 761. That case concerned a man who was originally an Austrian national. He exercised free movement rights to live and work in Germany. He applied for, and was granted, German nationality. In consequence, by operation of Austrian law he lost his Austrian nationality. He was subsequently deprived of his German nationality, on grounds of deception relating to criminal convictions, and ended up stateless. Thus the applicant lost his EU citizenship which all nationals of EU Member States enjoy parasitically upon their national citizenship . The submission of both the German and Austrian governments, supported by the Commission, was that this was entirely a matter of internal domestic law that did not concern EU law. There was debate before the Luxembourg Court about whether the facts of the case introduced a cross-border element into the legal matrix, which could import EU law into the mix. The Luxembourg Court did not make clear in its judgment whether that feature was of legal significance. The court held that "member states must, when exercising their powers in the sphere of nationality, have due regard to European Union law", para 46, before stating at para 48:
"The proviso that due regard must be had to European Union law does not compromise the principle of international law previously recognised by the court … that the member states have the power to lay down the conditions for the acquisition and loss of nationality, but rather enshrines the principle that, in respect of citizens of the Union, the exercise of that power, in so far as it affects the rights conferred and protected by the legal order of the Union, as is in particular the case of a decision withdrawing naturalisation such as that in issue in the main proceedings, is amenable to judicial review carried out in the light of European Union law."
The court went on to conclude that the deprivation of German citizenship on the grounds stated did not amount to arbitrary action but it was for the national court to decide whether the decision in question observed the principle of proportionality, para 55.
- Having set out extensive citations from Rottmann Laws LJ continued:
"37. I have with great respect found some difficulties with the reasoning in the Rottmann case. On the one hand there are passages which appear to suggest that national courts must "have due regard to European Union law" in adjudicating upon a question of deprivation of citizenship (because that entails the deprivation of EU citizenship) even where there is no cross-border element in the case: … But there are also elements suggesting that the particular history – the applicant's having lost his Austrian nationality upon moving to Germany and seeking naturalisation there – informed the court's reasoning, notably at para 42 …
38. Moreover this uncertainty as to the decision's scope betrays, to my mind, a deeper difficulty, which may be explained as follows. The distribution of national citizenship is not within the competence of the European Union. So much is acknowledged in the Rottmann case itself (para 39, cited by Advocate General Sharpston in her Opinion in the Zambrano case  QB 265, para 94), as is "the principle of international law... that the Member States have the power to lay down the conditions for the acquisition and loss of nationality": the Rottmann case para 48. Upon what principled basis, therefore, should the grant or withdrawal of State citizenship be qualified by an obligation to "have due regard" to the law of the European Union? It must somehow depend upon the fact that since the entry into force of the Maastricht Treaty in 1993 EU citizenship has been an incident of national citizenship, and "citizenship of the Union is intended to be the fundamental status of nationals of the Member States": see Rottmann para 43, and cases there cited).
39. But this is surely problematic. EU citizenship has been attached by Treaty to citizenship of the Member State. It is wholly parasitic upon the latter. I do not see how this legislative circumstance can of itself allocate the grant or withdrawal of State citizenship to the competence of the Union or subject it to the jurisdiction of the Court of Justice. Article 17(2) of the EC Treaty ("Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby"), referred to in the Rottmann case, at para 44, does not purport to have any such consequence. A generalised aspiration to the enjoyment of a "fundamental status" can surely carry the matter no further. In the result I am none the wiser as to the juridical basis of an obligation to "have due regard" to the law of the European Union in matters of national citizenship.
40. Nor is it clear what is meant by such an obligation, or by the proposition that decisions as to the loss or acquisition of citizenship are "amenable to judicial review carried out in the light of European Union law": the Rottmann case, para 48. Some passages … suggest that the court has in mind, primarily at least, only the application of general principles: proportionality and the avoidance of arbitrary decision-making. But if that is right, I apprehend it would not be enough for Mr Southey. His argument was grounded on provisions of black-letter EU law: TFEU Article 18, Article 21 of the Charter, and Article 31(4) of the Citizens Directive.
41. In these circumstances I consider with respect that Rottmann v Freistaat Bayern (Case C-135/08)  QB 761 has to be read and applied with a degree of caution. It cannot in my judgment be applied so as to require that in a case such as this the adjudication of a decision to deprive an individual of citizenship must be conducted subject to any rules of law of the European Union. On the facts, as Mr Eicke submitted, there is no cross-border element whatever. There has been no actual, attempted or purported exercise of any right conferred by EU law. From first to last this is a domestic case. Quite aside from the difficulties as to the scope of EU competences, see McCarthy v Secretary of State for the Home Department (Case C-434/09)  All ER (EC) 719, para 45:
"it is settled case-law that the Treaty rules governing freedom of movement for persons and the measures adopted to implement them cannot be applied to situations which have no factor linking them with any of the situations governed by European Union law and which are confined in all relevant respects within a single Member State..."
42. For all these reasons the Rottmann case cannot in my judgment be read as importing any part of Mr Southey's panoply of black-letter EU law into the process of the appellant's appeal under s.40A. The effectiveness of the appellant's available remedies is given by the standards of the common law. Those standards, to be found in the principles of our public law, are well apt to vindicate "the general principle of international law that no one is arbitrarily to be deprived of his nationality": see the Rottmann case para 53.
43. There is a further dimension to which I ought to refer. The conditions on which national citizenship is conferred, withheld or revoked are integral to the identity of the nation State. They touch the constitution; for they identify the constitution's participants. If it appeared that the Court of Justice had sought to be the judge of any procedural conditions governing such matters, so that its ruling was to apply in a case with no cross-border element, then in my judgment a question would arise whether the European Communities Act 1972 or any successor statute had conferred any authority on the Court of Justice to exercise such a jurisdiction. We have not heard argument as to the construction of the Acts of Parliament which have given the Court powers to modify the laws of the United Kingdom. Plainly we should not begin to enter upon such a question without doing so. That in my judgment is the course we should have to adopt if we considered that the Court of Justice, in the Rottmann case or elsewhere, had held that the law of the European Union obtrudes in any way upon our national law relating to the deprivation of citizenship in circumstances such as those of the present case. But I do not think it has.
44. For the reasons I have given the law of the EU cannot, in my judgment, assist Mr Southey."
Just as in the G1 case, the circumstances of these appellants have no cross-border element.
- The Supreme Court declined to accept the invitation to hold that the G1 case was wrongly decided. Whilst recognising that a decision by the Supreme Court whether cases such as these were governed by EU law was for another day, Lord Mance elaborated on the reasoning of Laws LJ in the G1 case between para 76 and 90 to illuminate the very real difficulty in accepting that decisions relating to citizenship were subject to EU law at all.
- Thus, for the purposes of these appeals we are left in this position. We are bound to hold that EU law does not govern the decision to deprive the appellants of their British citizenship, or the deprivation that followed. Nonetheless, the question arises whether SIAC approached its task of review with sufficient intensity to satisfy the common law test identified in the Pham case. The question whether the appellants would, under EU law, have been afforded additional procedural protection is strictly moot. It cannot assist the appellants in these appeals. Of course, SIAC did not consider the point, because it was not raised, but we have the material disclosed to the appellants and are thus in a position to decide whether that disclosure would satisfy the test for disclosure articulated by the Luxembourg Court in the ZZ (France) case, were EU law in that regard to apply. In view of the suggestion by the Supreme Court that SIAC should consider this matter following the Pham case it would be appropriate for this court to do so in this case.
The ZZ(France) Case
- The ZZ (France) case concerned a dual French/Algerian national who had lived in the United Kingdom for 15 years, was married to a British national and had eight children in the United Kingdom. He travelled to Algeria in 2005 but was refused re-entry on his return a year later. He was removed to Algeria. The relevant EU legislation was Parliament and Council Directive 2004/38/EC ("the 2004 Directive") which by article 27 allows a Member State to restrict freedom of movement of EU citizens on various grounds including public security. Article 28 restricts the circumstances in which one Member State may expel a national of another Member State with permanent rights of residence and, in the case of those who have resided in the host Member State for ten years or more, it may do so only on "imperative grounds of national security." Under article 30(2) the person concerned must be informed "precisely and in full of the … grounds on which the decision in their case is based, unless this is contrary to the interests of state security." Article 31 guarantees a right of judicial review of the decision which must allow a review of the legality of the decision including its proportionality. Article 47 of the Charter of Fundamental Rights ("the Charter") guarantees a "right to an effective remedy and to a fair trial". It provides:
"Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice."
- It will be apparent that article 30(2) of the 2004 Directive, albeit that it is not concerned with citizenship, carved out a clear exception to the obligation to provide precise grounds in full when to do so would be contrary to the interests of national security. The question referred to the Luxembourg Court concerned how that should be read in the light, in particular, of article 47 of the Charter.
- ZZ had not been provided with full and precise grounds of the reasons for the decision because much of the material on which the Home Secretary relied was deployed in closed SIAC proceedings. SIAC, with the aid of the special advocate, had ensured that as much as could be disclosed (including by summary and gist) had been disclosed. All the material withheld was protected because to disclose it would have damaged national security.
- The Luxembourg Court said, para 49, that the derogation from disclosure to protect national security in article 30(2) of the 2004 Directive must be construed strictly, but not be deprived of effectiveness. It must also comply with article 47 of the Charter. The court noted, para 51, that whilst the Charter itself allowed for limitations on the rights enshrined therein, the essence of the fundamental right must be respected. Any limitation on the rights guaranteed by the Charter "must be necessary and genuinely meet objectives of general interest recognised by the European Union." It continued:
"52. Therefore, the interpretation of articles 30(2) and 31 of Directive 2004/38, read in the light of article 47 of the Charter, cannot have the effect of failing to meet the level of protection that is guaranteed in the manner described in the preceding paragraph of the present judgment."
- Ordinarily, article 47 of the Charter dictates that a person must know the reasons for a decision taken in relation to him to enable him to defend his rights and to decide with full knowledge of the facts whether to challenge the decision: see para 53. The court recognised, para 54, that full disclosure may not be possible on grounds of state security. It then noted, paras 55 and 56, the ordinary rule that adversarial judicial proceedings require full disclosure to the parties of all material before the court, before stating:
"57. However, if, in exceptional cases, a national authority opposes precise and full disclosure to the person concerned of the grounds which constitute the basis of a decision … by invoking state security, the court with jurisdiction in the member state concerned must have at its disposal and apply techniques and rules of procedural law which accommodate, on the one hand, legitimate state security considerations regarding the nature and sources of the information taken into account in the adoption of such a decision and, on the other, the need to ensure sufficient compliance with the person's procedural rights, such as the right to be heard and the adversarial principle."
- Between paras 58 and 63 the court set out the framework for such rules in the context of decisions under the 2004 Directive, including that the state concerned must establish in the domestic proceedings that disclosure would damage national security and that the domestic court should make its own determination on that matter. If the domestic court concludes that the grounds for withholding material are not made out, the state should be given the opportunity to disclose the material, alternatively the legality of the decision would be determined without it. It appears that the procedures suggested by the Luxembourg Court were modelled on SIAC procedures. Its answer to the referred question came in the paragraphs which followed:
"64. …If it turns out that state security does stand in the way of disclosure of the grounds to the person concerned, judicial review, as provided for in article 31(1) of Directive 2004/38, of the legality of a decision taken under article 27 thereof must, having regard to what has been stated in paras 51, 52 and 57 above, be carried out in a procedure which strikes an appropriate balance between the requirements flowing from state security and the requirements of the right to effective judicial protection whilst limiting any interference with the exercise of that right to that which is strictly necessary.
65. In this connection, first, in the light of the need to comply with article 47 of the Charter, that procedure must ensure, to the greatest possible extent, that the adversarial principle is complied with, in order to enable the person concerned to contest the grounds on which the decision in question is based and to make submissions on the evidence relating to the decision and, therefore, to put forward an effective defence. In particular, the person concerned must be informed, in any event, of the essence of the grounds on which a decision refusing entry … is based, as the necessary protection of state security cannot have the effect of denying the person concerned the right to be heard and, therefore, of rendering the right of redress as provided for by article 1 of that Directive ineffective.
66. Second, in weighing up the right to effective judicial protection against the necessity to protect the security of the member state concerned – on which the conclusion set out in the preceding paragraph of the present judgment is founded – is not applicable in the same way to the evidence underlying the grounds that is adduced before the national court with jurisdiction. In certain cases, disclosure of that evidence is liable to compromise state security in a direct and specific manner, in that it may, in particular, endanger the life health or freedom of persons or reveal the methods of investigation specifically used by the national security authorities and thus seriously impede, or event prevent, future performance of the tasks of the authorities.
67. In that context, the national court with jurisdiction has the task of assessing whether and to what extent the restrictions on the rights of the defence arising in particular from a failure to disclose the evidence and the precise and full grounds on which the decision taken … is based are such as to affect the evidential value of the confidential evidence.
68. Accordingly, it is incumbent on the national court with jurisdiction, first, to ensure that the person concerned is informed of the essence of the grounds which constitute the basis of the decision in question in a manner which takes due account of the necessary confidentiality of the evidence, and, second, to draw, pursuant to national law, the appropriate conclusions from any failure to comply with that obligation to inform him.
69. In the light of the foregoing considerations, the answer to the question referred is that articles 30(2) and 31 of Directive 2004/38, read in the light of article 47 of the Charter, must be interpreted as requiring the national court with jurisdiction to ensure that failure by the competent national authority to disclose to the person concerned, precisely and in full, the grounds on which a decision taken under 27 of that Directive is based and to disclose the related evidence to him is limited to that which is strictly necessary, and that he is informed, in any event, of the essence of those grounds in a manner which takes account of the necessary confidentiality of the evidence."
- When the ZZ (France) case returned to the Court of Appeal,  EWCA Civ 7;  QB 820 there was a disagreement between the parties as to its meaning. In that case SIAC itself had said in its open judgment that, in effect, the essence of the grounds for refusing ZZ entry and removing him could not be disclosed to him. Richards LJ, with whom the Master of the Rolls and Christopher Clarke LJ agreed, considered that the clear language of the Luxembourg Court required in all cases that the "essence of the grounds" must be disclosed in cases under the 2004 Directive and that SIAC's own conclusions indicated that the minimum requirement had not been met. He reiterated the clear distinction drawn by the Luxembourg Court between the essence of the grounds, on the one hand, and the evidence in support of those grounds on the other.
Application to the Facts
- What, then, was disclosed to the appellants? The decision letters themselves gave only the barest outline. It was stated that each appellant was "a committed Islamist extremist who has links to Al Qaida and the proscribed organisation, Lashkar-e- Tayyiba (LeT)". Each decision noted that the other three family members shared those links. That information was augmented in an Open Statement served by the Secretary of State in the SIAC proceedings, subsequently amended following a disclosure exercise from closed to open pursuant to rule 38 of the 2003 Rules. In paragraph 4 it is stated that all four "are active members of LeT". Further, that all four also support Al Qaida. The paragraph continues:
"Specifically the Security Service assesses that:
a) They have sought to provide LeT with financial support whilst based in the UK;
b) They have maintained contact with LeT members and other extremist associates including those linked to AQ;
c) They may have undertaken terrorist training;
d) T1 and U1 have expressed extremist views;
e) [All four] are committed Islamist extremists whose fundamentalist views and ideology range wider than LeT's traditional and primary focus of Kashmir.
The Security Service assesses that [S1, T1, U1 and V1] have engaged in and supported terrorist related activity."
- In a section dealing with terrorist training camps, the Open Statement notes that the appellants have given as their current addresses in Pakistan a place strongly associated with LeT, which contains a terrorist training camp. The fact that they had located to a place known to be linked to LeT "is an indication of their continued and strong association with the group." They may have had an intention to engage in terrorist-related fighting based on their location and extremist views. The next section deals with fundraising activities. It refers to a Security Service assessment that the appellants "have engaged in raising money in the United Kingdom for LeT". The statement refers to a Greater Manchester Police port stop in 2008, a Metropolitan Police port stop in 2009 and the fruits of a Greater Manchester Police financial investigation. All are concerned with relatively large amounts of money to which the family has had access despite having been in receipt of benefits in the United Kingdom. The Security Service assessment was that whilst some money may have derived from an inheritance, this was used as cover "to obscure the true nature of their financial activities." It was assessed that the family was successful in raising money in the United Kingdom "some of which was likely to have been provided to support LeT." The Open Statement continues with an assessment that all four appellants hold extremist views and then a discussion of the extremist views of T1 and U1, in particular. U1 was questioned by Greater Manchester Police about his support for jihad which, he said, he would not personally engage in but would not be upset if his brothers and friends did. The assessment was that he had concealed the true nature of his beliefs. T1 was twice questioned by the Metropolitan Police in 2009. On the first occasion he was candid in disavowing any belief in democracy and his desire to see Sharia law applied in Muslim countries. He was asked again about this on the second occasion. The Security Service assessment was that on both occasions T1 was likely to have concealed his more extreme beliefs. There was a further assessment that the family left the United Kingdom as a result of police interest, evidenced by the airport stops, which suggested that their activities were of concern to the authorities. The overall assessment was:
"[S1, T1, U1 and V1] are members of LeT, a proscribed organisation in the UK, and have been involved in support for LeT for several years both in the UK and whilst residing in Pakistan. Their activities have included the raising of funds in the UK in support of LeT. The Security service assesses that were [they] to return to the UK they would pose a significant threat to national security."
Documents relating to the various port stops were attached to the Open Statement together with open source material referred to therein.
- With this summary of the reasons provided to the appellants to explain why they were deprived of their British citizenship I come back to the question posed by the Luxembourg Court in the ZZ (France) case. Were the appellants informed of the essence of the grounds which founded the decisions? In my judgment they were. They were told that the decision was based on the conclusions that they were active members of LeT, with links to Al Qaeda and that they had been fundraisers for the organisation whilst in the United Kingdom. The extensive material relating to the family's finances was set out in the Open Statement. A large amount of information was given about particular funds which supported that conclusion. They had established their home in the heart of a place strongly linked to LeT where there was a terrorist training camp. From that the conclusion was drawn that they may have undergone terrorist training. Two of them had engaged in conversations from which it was concluded that they held Islamist extremist views, which the others were assessed to share.
- The appellants were given the essence of the case they had meet, had they chosen to do so. They were not provided with evidence or more detailed grounds, the disclosure of which would damage national security. But EU law would not require that. The assessment whether material should be disclosed was made by SIAC with the appropriate involvement of the Special Advocates. Procedurally the SIAC appeal satisfied EU law. The process delivered disclosure of further material and the amendment of the Open Statement and there is no reason to suppose that SIAC did not approach the evidence appropriately.
- It follows that even were EU law applicable to the deprivation decisions and the disclosure obligations identified in the ZZ (France) case applied without modification, I do not consider that the appellants would have had a valid complaint of inadequate disclosure of the essence of the grounds for the decisions. In coming to this conclusion I have necessarily considered only the open material whereas SIAC, if approaching the same question, would have sight of all the material.
- SIAC considered the question of the proportionality of the deprivation decisions in a summary way in connection with the impact on S1's wife and youngest son of those decisions. She provided two statements in the SIAC proceedings. S1 also provided a statement setting out his son's problems and the family background.
- They married in 1984 in Pakistan. Mrs S travelled to the United Kingdom to live with him, becoming a naturalised British citizen in 1993. Her youngest son, A, is also a British citizen. He was born in February 1997. He experienced developmental delay and learning disability. For an unidentified period up to 2007 the family lived in Pakistan but then returned to the United Kingdom. Before the family again relocated to Pakistan in 2009 A was the subject of a statement of special educational needs. He was only 12 when the family left and was 15 when Mrs S made her statement. She indicated that she wishes the family had returned to the United Kingdom before the deprivation decisions were made in particular to give A the best chance in life. She worries for what will happen to him as an adult in Pakistan. She considered returning to the United Kingdom with A, without her husband, but "after serious thought I know I cannot do this". She did not think she could manage A on her own and her health was not good. A needed support in all activities and she did not think that he would cope if the family was broken up. S1 described the day to day support they both provide their son and his concern that his wife would not be able to cope on her own with him in England. The educational opportunities for A in Pakistan were less good than in the United Kingdom. At the time Mrs S made her statements he spent much of his time in front of a computer. Mrs S spoke of the support that would be available for A in England through social services and education. She spoke also of the medical services that would be available in the United Kingdom. Her desire was for the whole family to return to the United Kingdom. She said:
"I really do not know what to do. I do not want A to continue to suffer, but I also do not want my family to continue to be split up. I hope they will be allowed to return to fight the case and I can come back at the same time with A [and my daughter]."
The daughter is an adult, also a British citizen. The proportionality argument developed below focussed on Mrs S and A.
- In paras 17 and 19 of its final judgment SIAC explained its approach to the national security issue. It was for the Home Secretary to satisfy SIAC that each appellant posed a threat to national security. Such a threat must be real. SIAC would determine that issue "by reference to our findings about the past and present conduct of each appellant, made on the balance of probabilities." If the Home Secretary made out her case, the appeals would be dismissed unless there was "some other inhibition on the decision to deprive". This approach reflected that SIAC was an appellate body and not one applying the principles of judicial review.
- The parties had developed submissions before SIAC of the difference between "conducive to the public good" as the statutory ground for deprivation, and conduct "seriously prejudicial to the vital interests … of the United Kingdom" which was the test in earlier legislation. The circumstances in which an individual may be deprived of citizenship are not limited to those where he poses a threat to national security grounds. Miss Harrison had contended for a test of "a real and direct and immediate threat to a vital public interest" as a surrogate for the statutory test of "conducive to the public good". As I have indicated, SIAC accepted that any threat to national security must be "real" to support a deprivation decision. It explained why "direct" and "immediate" were inappropriate qualifications, para 16. On the epithet "vital" it said this:
"12. It is common ground and obvious that national security is a vital public interest. It is the only interest with which we are concerned or, in future cases, likely to be concerned. No good purpose would be served by our attempting to define a test applicable to other circumstances."
- SIAC concluded that the Home Secretary had made out her case against the appellants, albeit that in the open judgment it said that the reasons were to be found in the closed judgment. SIAC returned to the subject whether there was any other impediment to depriving the appellants of British citizenship in a paragraph entitled "Other Issues". It noted that the deprivation decision in the case of S1 had undoubtedly had an impact on the private lives of Mrs S and A. It saw no reason to doubt her evidence. SIAC continued:
"But for the conclusion which we have reached about the threat to national security posed by S1, those circumstances would have given rise to difficult questions under Article 8 ECHR and Chapter VI of [the 2004 Directive]. It is unnecessary for us to set out and analyse the conclusions which we would have reached on those issue, because Miss Harrison accepts that if the United Kingdom was entitled to deprive S1 of British citizenship because he posed a threat to national security, the unavoidable incidental impact upon the rights of his wife and youngest son would be justifiable under Article 8 ECHR, as an interference necessary in a democratic society in the interests of national security; and under, or by analogy with, Article 28(3) of the Directive, as a decision based on imperative grounds of public security. We are satisfied that her concession was properly made and have acted upon it."
- The grounds of appeal do not challenge this finding of SIAC or suggest that SIAC misunderstood any concession made on behalf of the appellants below. Nonetheless, Miss Harrison submits that SIAC has misconstrued the material exchanges during her closing submissions. The relevant exchange followed a discussion about EU law and a submission from Miss Harrison that there was compelling evidence why A "needs both his parents in the United Kingdom and, clearly, the deprivation decision prevents his father coming back to the UK." Then,
"MR JUSTICE MITTING: It is difficult to conceive of circumstances where, if a high conducive threshold was crossed, nevertheless, it would be trumped by article 8 rights, EU rights, citizenship rights of mother and son.
MS HARRISON: I accept that. Yes, I accept that."
- Mitting J's reference to the "high conducive threshold" anticipates SIAC's conclusion that national security is a vital interest and the approach to the evidence articulated in the judgment. The focus was on the rights of the child A and his mother because they were being prayed in aid as a reason why the appeal, at least of S1, should be allowed. The three adult sons who had been deprived of their citizenship could not seriously have sought to rely upon this aspect of the case. The position of Mrs S and A represent the high water mark of any proportionality argument.
- It is clear that SIAC did consider the proportionality of depriving S1 of his British citizenship by reference to the arguments advanced before it relating to the impact upon Mrs S and A. To the extent that their rights under article 8 of the Convention were engaged the deprivation decisions were proportionate. It rejected the argument that it was disproportionate to deprive S1 of his citizenship. SIAC did not expressly consider proportionality in its wider context because it was not invited to do so.
- Nonetheless, its reference to article 28(3) of the 2004 Directive suggests that it was alive to proportionality in that wider context. A decision to exclude a national of another Member State pursuant to that Directive must be proportionate in EU law terms. Whether or not SIAC and Miss Harrison understood the concession in the same way, in my judgment the observations I have set out show that SIAC considered questions of proportionality but forbore from elaborating its reasoning because of its understanding of the concession.
- It is difficult to conceive that SIAC could have concluded that the deprivation decisions were disproportionate in any sense given the nature of the case advanced by the Home Secretary against these appellants. Miss Harrison submits that the appellants could have been allowed to retain their British nationality and, when they returned to the United Kingdom, placed under surveillance. That could include physical surveillance and monitoring of their communications. She submits that the Secretary of State could also have sought to contain any risk using powers under the Terrorism Prevention and Investigation Measures Act 2011. To my mind that is an unrealistic submission. Any measures available to the Home Secretary or intelligence agencies would be expensive, divert resources from other activities and would be decidedly second best when the underlying premise of the deprivation decisions is that it is the presence of the appellants in the United Kingdom which poses the threat to our national security. Furthermore, any proportionality argument would take account of the fact that the family had maintained a home in Pakistan even whilst otherwise living in England and had chosen to relocate to Pakistan in 2009. There are no particular aspects of Union citizenship which have been advanced as being of interest or concern to the appellants beyond the ability to live in the United Kingdom.
- In summary, SIAC turned its mind to proportionality and in the context of the arguments advanced dealt with it. Given the nature of the case against the appellants an appeal to proportionality is in my judgment unrealistic.
- The Zambrano case concerned a Colombian national whose two children had been born in Belgium and thus, by operation of Belgian law, acquired Belgian nationality and, by operation of EU law became EU citizens. The question referred to the Luxembourg Court was whether by virtue of the nationality of the minor children, the third party Colombian national acquired a right of residence in the country of the children's nationality. The answer was given in paras 42 to 45 of the judgment:
"42. … article 20 FEU …precludes national measures which have the effect of depriving citizens of the European Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the European Union …
43. A refusal to grant a right of residence to a third country national with dependent minor children in the member state where those children are nationals and reside … has such an effect.
44. It must be assumed that such a refusal would lead to a situation where those children, citizens of the European Union, would have to leave the territory of the European Union in order to accompany their parents. …
45. Accordingly, the answer to the questions referred is that article 20FEU … is to be interpreted as meaning that it precludes a member state from refusing a third country national on whom his minor children, who are European union citizens, are dependent, a right of residence in a member state of residence and nationality of those children ... in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen."
- The language of the Luxembourg Court was broad. However, the principle has been considered in a number of subsequent decisions in which the court has explained its narrow application. I mention only Dereci v Bundesministerium für Inneres (Case C-256/11  All ER (EC) 373. The Luxembourg Court held at para 66 that the criterion established in Zambrano applied where the Union citizen "has, in fact, to leave" Union territory. At para 67 the court emphasised that the status is exceptional. It is conferred notwithstanding that it is not covered by subordinate legislation. It continued:
"68. Consequently, the mere fact that it might appear desirable to a national of a member state, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted."
- In Harrison v Secretary of State for the Home Department  EWCA Civ 1736;  CMLR 580 the ambit of the Zambrano principle was explored in the context of cases where the removal of the non-Union citizen would cause economic and practical problems for the children if the non-national parent were removed. Elias LJ noted that the rupturing of ties with Mr Dereci were not sufficient to engage the principle, para 66, and that "there is no impediment to exercising the right to reside if residence remains possible as a matter of substance", para 67. In the same paragraph Elias LJ also noted that the application of the Zambrano principle would be subject to a proportionate deprivation of rights.
- In my judgment the Zambrano argument fails at many levels. The argument does not rest upon the suggestion that Mrs S or A have been or will be forced to leave the Union. It is concerned with the suggestion that S1 should be allowed to return to the United Kingdom (either on the basis that his British citizenship is restored to him, or perhaps as a Pakistani national) to enable his wife and son to enjoy their rights as citizens of the Union. Even if S1 were living alone in Pakistan as a Pakistani national with EU citizen minor children, his re-entry into the Union on the strength of the Zambrano principle would be a very substantial step which finds no support in the Luxembourg jurisprudence. It is concerned with forcing children to leave the Union.
- In any event, Mrs S (and if she chooses to bring him, A) can return to the United Kingdom (or anywhere else in the EU) whenever she chooses. The substance of her right, and his, is not impaired. Para 68 of the Dereci case makes clear that her concerns would not be sufficient to engage the Zambrano principle. Her desire to keep the family together and other difficulties would not suffice. That can be tested by considering whether the Zambrano principle could have assisted her if the family had remained in the United Kingdom and it was proposed to deport S1 to Pakistan. On the basis of the Dereci case it would not, despite her difficulties in coping on her own with A. She would have had to make a hard choice: stay in the United Kingdom with A, or follow S1 to Pakistan. I am unable to see how on the facts, even if the formidable legal difficulties in stretching the principle could be overcome, a Zambrano claim could get off the ground.
- Miss Harrison submits, in connection with the totality of the EU points that we should make a reference to the Luxembourg Court. The circumstances of this case are not, in my view, as would justify such a reference.
Fairness and the appellants' absence from the appeal
- In its judgment of 26 July 2012 SIAC noted that none of the appellants had at that stage provided an open answer to the allegations against them. The confidential judgment provides a summary of what, on instructions, the appellant's legal team understood they would be prepared to say. In a statement made on 12 October 2012, and read to him over the telephone by his solicitor, S1 stated that he was not an active member of LeT or a supporter of Al Qaeda. He went on to say that the national security case had put him and the family in danger and so regretted that he would not be able to deal with the allegations. He did not distinguish between the various factors set out in the Open Statement. He nonetheless said that he had a positive case to make, but was unable to go into detail. He referred to a statement of Mr Hasan as providing the reasons. He added that since a visit of his lawyer to Pakistan in March 2012 and SIAC hearings in June and July the Pakistani authorities had taken an active adverse interest in him and the family. He gave no detail.
- The appellants had provided earlier statements in May 2012 which foreshadowed this suggested difficulty in engaging with the appeal. Ms Kellas, one of the solicitors who had conduct of their appeals, also put in evidence. S1's statement covers 12 single spaced typed pages. Those of his sons are shorter but still detailed. From these statements it becomes apparent that representatives of their solicitors have visited them three times in Pakistan. One visit in 2011 lasted three days. The appellants expressed general fears that it was not possible to communicate securely with their solicitors, at least such communication could not be guaranteed and that as a result they were inhibited about speaking freely. Their fear, it seems, relates to interest of the Pakistani intelligence services. Furthermore, they did not wholly trust their lawyers, in particular the lawyer who visited them for three days in 2011 who they say they suspected of being from British intelligence. These May 2012 statements were prepared following a visit by Ms Malik. There is no product of the three day visit in the papers.
- It is on the basis of this suggested inhibition in giving instructions and providing evidence in the first instance in writing to SIAC that the appellants submit that their appeals could not be conducted fairly unless they were allowed to return to the United Kingdom to prosecute them. In the response to the May 2012 statements on behalf of the Home Secretary it was pointed out that none of those statements dealt at all with the substance of the case (they did not), that the national security allegations had been in the public domain since the first statement was served in January 2012, and that there was no suggestion of problems having been encountered. It continued:
"If they were to refute the national security allegations and give a full account of their actions, the Security Service assesses that this would not put their safety at risk. The statements could carry the same anonymity as the Security Service statement and they would not, with a bare denial, be raising any new aspects to the case that may potentially raise their profile with the Pakistani authorities. The Security Service considers it telling that that the appellants have refused to refute the case against then on even the simplest terms. Furthermore, the Security Service assesses that even if the appellants gave a full response this would not put their safety at risk."
- The statement continued that others had run SIAC appeals from Pakistan, including three who had been alleged to be associated with Al Qaeda. Each had used a secure video link and none had raised concerns before or after regarding the Pakistani authorities. The whole premise of the appellants' concern was roundly dismissed. In a separate statement, a list of commercial providers of video links from Pakistan was provided by the High Commission in Islamabad.
- Mr Ali Dayan Hasan is the Pakistan Director of Human Rights Watch with undoubted expertise in matters relating to human rights and their abuse in Pakistan. In a statement dated 22 June 2012 he noted that there is a widespread use of torture of suspected Al Qaeda terrorists in Pakistan and particularly by the Inter-services Intelligence ("ISI"), one of Pakistan's security agencies. The ISI can act with impunity. It carries out reprisal killings. LeT has a close relationship with the ISI which provides it with protection. As an aside, I observe that the evidence of the Home Secretary confirms this aspect of his evidence, which has featured in a number of SIAC appeals. Mr Hasan's conclusion was that the appellants had a legitimate fear about giving detailed instructions about the national security case, in particular if they were to be giving information about the LeT and its relationship with the ISI. Additionally, the appellants have a legitimate fear "of being deemed to be "informers" by the LeT." The LeT has a history of harassing and intimidating those it believes to be informers. Three concerns were thus expressed: (a) that they might be at risk from the ISI if they were thought to be Al Qaeda terrorists; (b) that they might be at risk from ISI if they were thought to be giving information about the dealings of LeT with the ISI; and (c) that they might be at risk from LeT if they were viewed as informers.
- The difficulty with the evidence of Mr Hasan is that it is general and hypothetical in the sense that it does not proceed upon any understanding of the case which the appellants, or any of them, wished to advance to meet the Home Secretary's national security concerns.
- The issues identified by Miss Harrison for resolution before SIAC were set out in para 4 of the judgment:
"(i) Whether the respondent, in depriving the appellants of their British citizenship whilst they were out of the jurisdiction by service of deprivation orders and/or in refusing to facilitate their return and entry to the UK, pending the appeal, has acted unlawfully on the basis that it is:
a) contrary to the statutory provisions and purpose in particular section 40A(3)(a); and/or
b) procedurally unfair at common law and/or under Article 8 ECHR because the appellants are deprived of a fair hearing and/or effective remedy under community law; and/or
(c) is an abuse of process;
(ii) If contrary to the above the statutory provisions do permit a British citizen to be deprived of their legal status in the UK pending appeal and notwithstanding the right to an in-country appeal, the question arises as to whether this constitutes unlawful discrimination by reason of nationality contrary to the right to equal treatment in community law (Article 12 TFEU) and/or Article 8 and 14 of the ECHR;
(iii) Whether the notice of the decision was invalid given that it did not inform the appellants of their in-country right of appeal and/or it was served on an address in the UK despite the known whereabouts of the appellants (any or all of them) in Pakistan;
(iv) Whether, for any of the reasons set out above, the respondent should now be directed to withdraw the decision to make the deprivation order and/or the orders depriving the appellants of their British citizenship thereby allowing the appellants to return to the United Kingdom forthwith pending the appeal process and for the purposes of preparing, presenting and being present at their appeals."
- Issue (ii) and (iii) have not been pursued in the appeals. Issue (iv) has been re-formulated. Either SIAC should have allowed the appeals or, in the parallel judicial review proceedings, we should quash the deprivation orders and make such other orders as would enable the appeals to be heard again with the appellants enabled to return to the United Kingdom to pursue them.
- SIAC provided three answers to the appellants' contentions which it described as "a simple answer", "a more complex answer" and "a yet more complex answer.
- The simple answer to the point that the timing of the deprivation order made it impossible for the appellants to return to the United Kingdom, where they would be entitled to remain pending the resolution of their appeal, 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.
- The more complex answer was that the G1 case determined the matters being relied upon by the appellants against them.
- The yet more complex answer dealt with the argument that EU law required, in particular, that S1 be allowed to return to the United Kingdom to conduct his appeal because of the impact upon the EU rights of Mrs S and A. SIAC did not accept that the requirements of EU procedural law could trump the protection of national security, a proposition now subject to the limited qualification provided by the ZZ (France) case, but generally correct. Article 30(4) of the 2004 Directive, for example, makes provision to exclude an EU national during the redress procedure if his appearance would cause " serious troubles to public security". But one of the questions which SIAC would have to resolve would be "whether the appellants are genuinely inhibited by fear or other difficulties in conducting their appeal from Pakistan." In para 20 SIAC stated:
"None of these questions can be determined without a hearing at which the various propositions would be tested. How is that hearing to occur? Would the appellants be permitted to return to conduct it and to participate in it in the United Kingdom? The proposition creates an unbreakable circle or procedural maze through which there is no path or exit."
- Before turning once more to the G1 case I should mention a more recent decision of this court on appeal from SIAC, in which the only substantive judgment was given once more by Laws LJ. It bears on the issues raised under this head. It is another case in which the appellant had anonymity: L1 v Secretary of State for the Home Department  EWCA Civ 1410. L1 was a British citizen of Sudanese origin, who divided his time between the two countries but whose large family resided here. In May 2010 the Home Secretary made a decision in principle that the next time L1 left the United Kingdom he would be deprived of his citizenship and an exclusion order would be made on national security grounds. L1 and his family travelled to the Sudan on 5 July that year, intending to return at the end of the school holidays. But on the next day the Home Secretary made the decision to deprive L1 of his citizenship and six days later the deprivation order was signed together with an exclusion order. L1 was still in the Sudan. The question before SIAC and the Court of Appeal was whether it was lawful for the Home Secretary to wait for L1 to leave the country and thereby deprive him of the benefit of pursuing his appeal from within the United Kingdom. The argument was whether the way in which the conduct of the Home Secretary amounted to an abuse of power.
- The Home Secretary had decided, on the advice of the Security Service, to act as she did because it was L1's presence in this country which gave rise to the danger to national security. It was considered that he would use the United Kingdom as a platform to engage in terrorist- related activity and support the activities of others.
- At para 15 Laws LJ confirmed that someone who launches an appeal against a decision to deprive him of citizenship whilst physically in the United Kingdom, by virtue of section 78 of the Nationality Immigration and Asylum Act 2002 cannot be removed while the appeal is pending. He noted, at para 16, the practical advantages of pursuing an appeal from within the jurisdiction which had been recognised in many decisions of high authority, albeit that an appeal pursued from abroad meets the necessary standards of fairness. SIAC had concluded that if the course of action taken by the Home Secretary was legally objectionable, that was not on account of any statutory inhibition. At para 20, Laws LJ agreed and continued:
"It follows that the appellant's case must inhere in the proposition that the Secretary of State's actions have frustrated the policy or purpose of the measures conferring the right of appeal. Such a case would certainly be made out if it were shown that the Secretary of State had acted so as to deprive the appellant of an in-country appeal for reasons of tactical advantage in the appeal process. That would be an improper motive, and the illegality of such a motive in the context of statutory decision making by a public body needs no authority ... But that is not the factual position here."
That was because the timing of the decision in L1's case was determined for national security reasons. The Home Secretary was not concerned about the consequences for any appeal that might have been launched. The question was this:
"If the Secretary of State proposes to deprive a person of British Citizenship, is she obliged to take no steps which would stand in the way of the subject's exercising his right of appeal in country even though in her view, on expert advice, his doing so would or might damage the security of the United Kingdom?"( para 22)
- Laws LJ decided that statute did not require an affirmative answer. The statutory provisions do not qualify the Home Secretary's powers to deprive an individual of British citizenship by refraining from action whose effect will be that any appeal will be from abroad, if she concludes that action is required in the interest of national security, para 25. No more did the common law require an affirmative answer, para 26. Laws LJ concluded his judgment by indicating that the analysis by the route of improper purpose was not a true abuse of process but "really a Padfield case" –  AC 997. "Has the statutory purpose been frustrated?"
- There is no suggestion in our appeals that the motive of the Secretary of State in moving from the decisions to deprive to the deprivation orders themselves in a few days was infected by an improper purpose. Mr Tam readily acknowledges that the purpose in making the orders was to prevent the appellants from travelling to the United Kingdom. That is the whole point of the process. But the timing had nothing to do with potential appeals.
- The L1 case establishes that the course taken by the Home Secretary in respect of these appellants was not inconsistent with the statutory scheme or with the common law. She made the deprivation order shortly after the decision to deprive to safeguard national security – a proper purpose. The contention that her decision might give rise to difficulties in any subsequent appeal cannot, in my judgment, affect the question whether either her decisions to deprive or the subsequent deprivations were unlawful. Indeed, it was not even clear that there would be any appeals, and if so from which of the eventual appellants. One only has to contemplate the possibility that some, but not all, appealed, to expose the difficulty. All four decisions and subsequent deprivations were taken at the same time and on the same material. Yet if one, but not the others, chose to appeal it appears to be said that the decisions in his case become unlawful as a result.
- In my view, to succeed in any argument that the Home Secretary was obliged to allow the appellants to return to the United Kingdom to prosecute their appeal the appellants must demonstrate that SIAC should have taken a step within its powers which would have achieved that result (or the summary allowing of the appeals) or succeed in the judicial review claim seeking to quash the Home Secretary's refusal to facilitate their return.
- Although in the L1 case Laws LJ did not cite from his earlier judgment in the G1 case the conclusions were, of course, entirely consistent. Between paras 12 and 16 he explained that the statutory scheme, in particular section 40A(3) of the 1981 Act, did not prohibit the Secretary of State from excluding an appellant from the United Kingdom or require her to facilitate his return for the purpose of pursuing an appeal; then between paras 22 and 24 that the common law does not presume a right to be present at a statutory appeal, even one in which an appellant suffers from perceived procedural disadvantages. An in-country right of appeal, in the sense that the appellant has a right to be present, can be guaranteed only by Parliament. There is no such guarantee. He continued:
"23. Might the dictates of procedural fairness nevertheless generate a right to be present in the circumstances of this type of appeal, or indeed this particular appeal? … [S]ection 92(1) of the 2002 Act indicates a view on the part of legislature that out-of country-appeals to the First-tier Tribunal are in principle neither unfair nor ineffective and while, as I have also accepted, the common law will supply the want of the legislature where a statutory scheme lacks fair procedure, it is also the case that the requirements of fairness are shaped by the statute in question."
- Laws LJ continued by indicating that, so far as the circumstances of the case itself were concerned he agreed with the conclusions of Mitting J in the Administrative Court. The G1 case was in form a claim for judicial review of the decision to exclude the appellant from the United Kingdom on national security grounds. G1 sought an order quashing that decision and a mandatory order requiring the Secretary of State to facilitate his return to conduct his appeal against the decision to deprive him of British citizenship. The arguments before Mitting J mirrored precisely those in these appeals. The Home Secretary suggested that G1 could use modern methods of communication from Khartoum. An expert suggested that were he to do so he would be at risk of adverse interest from local security forces. His solicitors spoke of the difficulties without face to face contact. Mitting J observed that G1 could travel to a third country both to give instructions and his evidence via video link. He would need a Sudanese identity document and passport for that purpose. It was objected that, for various reasons, he might be unable to obtain either. Mitting J continued in para 10 of his judgment (quoted by Laws LJ with approval at para 25):
"10. The live question is whether the claimant can travel to a safe third country. … If there is a legal principle which requires that the claimant can give evidence in a manner which permits SIAC to observe him which, for the reasons expressed above, I doubt, it must, as a matter of principle, be for the claimant to demonstrate that that course is not open to him. The material which he has deployed is, at best, equivocal. On balance it seems that he can obtain a Sudanese passport. …
11. … the step which the claimant suggests is required of the Secretary of State would, if he were found to pose a threat to national security, frustrate a decision which would, by then, have been established to be lawful and justified. In my judgment the Secretary of State cannot be criticised for refusing to take a step which would, in all probability, have the effect of frustrating an decision which, if upheld on appeal, would have been lawfully and properly taken in the interests if national security."
- Laws LJ noted the substantial case advanced by the Home Secretary that G1 was well able to deal with the SIAC appeal from the Sudan. He agreed with Mitting J that if a positive claim was being asserted that the High Court should direct the Home Secretary to facilitate his return in circumstances where neither the legislation nor the procedural rules obliged that course, he should prove it.
- These observations were made in the context of the issue earlier identified by Laws LJ at para 21:
"… even if the Secretary of State had never made the exclusion decision the appellant would be outside the United Kingdom with no realistic prospect of obtaining an entry clearance to return, his case must be that the Secretary of State is required (under this ground by reference to the dictates of procedural fairness or the right to an effective remedy) to facilitate his return, outside the immigration rules, to conduct his appeal."
- That is precisely the case of these appellants.
- The appellants' claims that they were inhibited from engaging fully in their own appeals were superficial and without particularity. Their evidence of a fear of ill-treatment was served in May 2012 (after a very substantial degree of engagement with their solicitors) more than a year after they lodged their notices of appeal, during which they had filed full evidence, both personal and expert, in support of their contention that they would be rendered stateless as a result of the actions of the Home Secretary. There was no hint during that process that the appellants considered that full engagement would place them at any risk.
- Their later assertions could not simply be being taken at face value by SIAC. We have seen that evidence was lodged on behalf of the Home Secretary contradicting their assertions, and the evidence of their expert. The appellants had the benefit of anonymity and they took full advantage of the procedures which resulted in their keeping aspects of their evidence from the public. There was no suggestion of any adverse interest in the appellants from either the ISI or LeT until the unnecessarily coy allusion in the statement from S1 served in October 2012 shortly before the substantive hearing. Furthermore, there was no explanation given why, for example, evidence could not be provided dealing with the various financial transactions and money available set out in considerable detail in the Open Statement. The appellants refused to say anything until they had returned to the United Kingdom, even to explain what it was they feared. I have the strongest sense of the appellants carefully choreographing their evidence to achieve their desired end, that is a return to the United Kingdom.
- It is submitted by Miss Harrison that SIAC had accepted that the appellants faced the material risks, because they accepted the evidence of Mr Hasan. To my mind that misreads what SIAC decided. First, it is inconsistent with the conclusion to which I have referred, namely that finally to decide the issue it would be necessary for the appellants to travel to the United Kingdom to explain further why they could not participate in the appeals from Pakistan. SIAC accepted Mr Hasan's evidence but not that the concerns he expressed would apply to these appellants. That was because he did not base his opinion on what their account would be. He noted that that they "would be responding substantively". Yet the nature of their responses would clearly be critical to any assessment of supposed risk. The Home Secretary disputed that engagement with the process would generate any risk for reasons which were explained.
- The appellants were free to travel anywhere in Pakistan, to meet their solicitors or to communicate with them via telephone, video link or email, including through independent video conferencing providers, others' telephones or emails. The assertion that it could not be guaranteed that the appellants were not the subject of electronic monitoring is a weak foundation for suggesting that they were, or that there were not readily available means of communicating securely.
- Moreover, the problems, if problems there were, were self-inflicted to some extent. The appellants doggedly asserted that they would be rendered stateless by the Home Secretary's decision and subsequent order. SIAC's judgment of 27 October 2011 on this issue sets out S1's account of his dealings with the Pakistani authorities, designed to demonstrate that they would not recognise him (or his sons) as Pakistani. He explained that he had tried unsuccessfully between 1996 and 2002 to obtain a Pakistani passport, which was not disputed. SIAC did not accept his wider account, noting that he had provided "next to nothing" to explain how he had in fact obtained a Pakistani passport on one occasion or how he had apparently overstayed (as a British citizen) for so long since 2009. The salient point for the purpose of the issue whether the appellants could engage in the SIAC appeals is that having lost their British citizenship, they made no effort to vindicate their rights as Pakistani nationals until after they had lost their appeals. One understands why. They were seeking by any means to overturn the Home Secretary's decision. But had they taken a more pragmatic view it is likely that their status as Pakistani nationals would have been recognised earlier and they could have travelled to another country to meet or talk to their solicitors and, if they chose, give evidence by video link.
- SIAC declined to determine the question whether the appellants were genuinely inhibited through a justifiable sense of fear from engaging fully in their appeals on the basis of their say so. It considered that it would need to hear from them before such a conclusion was available, which recognised that the written material did not establish, without more, the proposition.
- It is unclear what SIAC could or would have done had it accepted the appellants' contention. Miss Harrison submits that the appeal should have been allowed.
- Rule 4(3) of the 2003 Rules requires SIAC to satisfy itself "that the material available to it enables it properly to determine proceedings." But this general duty is not apt to provide a power to direct that someone (an appellant or witness) should be allowed to enter the United Kingdom for the purpose of giving evidence in person before SIAC. Rather it is concerned to ensure that in the event that SAIC considers it has inadequate material available to it to determine an appeal, it may use the other powers available to it under the rules to remedy the deficiency (in particular rules 10A and 39), which include powers to give directions to a party to serve further details of a case and evidence. A failure to comply with such directions may lead to the appeal being struck out, or the reply from the Home Secretary being struck out. This latter course would have the practical effect of the appeal going by default. Otherwise, the only circumstances envisaged by the 2003 Rules (rule 11B) for striking out the Home Secretary's reply, is if it discloses no reasonable grounds for defending the appeal.
- Rule 45 of the 2003 Rules concerns witness summonses which may only be issued to persons in the United Kingdom. The appellants are not witnesses (although theoretically they might be in each other's appeals) but the rule tells against the proposition that SIAC has a disciplinary power to require the Home Secretary to facilitate entry into the United Kingdom for the purposes of participating in a SIAC appeal.
- I am unpersuaded that, even if the appellants had made good their concerns, there was anything within the power of SIAC to help them. The appropriate course was to ask the Home Secretary to allow the appellants to enter the United Kingdom outside the Immigration Rules to prosecute their appeals, and to challenge any refusal in judicial review proceedings. The appellants took the first step, at least in substance. In the course of the SIAC appeal they asked, through the Treasury Solicitor, whether the Home Office would facilitate their return to the United Kingdom for the purpose of prosecuting the appeals. The answer was no. In September 2012 the judicial review proceedings were issued which are before us sitting as a Divisional Court.
- In the G1 case Laws LJ recognised that the High Court, exercising it supervisory jurisdiction, could review a decision of the Home Secretary to refuse to facilitate the entry into the United Kingdom of a SIAC appellant to prosecute his appeal. It is clear that those circumstances would be rare and require clear and compelling evidence to support the proposition that absent physical presence in the United Kingdom, the person concerned could take no meaningful part in the SIAC appeal. Even then, the decision would have to be reviewed in the light of public law principles including if they apply, EU and ECHR principles. The evidence adduced by the appellants to support their contention that it was impossible for them to engage meaningfully in their appeals to my minds falls a long way short of establishing the proposition for which they contend.
- On this aspect of the appeal I do not consider that SIAC erred in its approach. In the judicial review, I would grant permission to apply for judicial review of the Home Secretary's refusal to facilitate the appellants' return to the United Kingdom, but dismiss the claim.
The Reach of the Convention
- I turn next to the appellants' arguments that their Convention rights were violated by the decision to deprive them of their British citizenship. They contend that they were within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention when they were deprived of British citizenship, despite the fact that they had settled in Pakistan. Article 1 provides:
"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention."
The consequence, submits Miss Harrison, is that if the deprivation decision gives rise to risks of the sort which would prevent removal were that person in the United Kingdom the decision would be unlawful pursuant to section 6 of the Human Rights Act 1998. SIAC considered this issue in the context of the appellants' argument that depriving them of their British citizenship exposed them to a risk of treatment prohibited by article 3 and the rights guaranteed by article 2 of the Convention. SIAC referred to the decisions of the Grand Chamber in Bankovic v United Kingdom  44 EHRR SE5 and Al-Skeini v United Kingdom  53 EHRR 18. It noted the 1973 decision of the Commission in East African Asians v United Kingdom  3 EHRR 76 and also the decision of the Strasbourg Court in Genovese v Malta  1 FLR 10, as providing some support for the appellants' contention. It concluded that when the deprivation decision was taken and implemented, the United Kingdom owed the appellants no obligation to secure their rights under articles 2 and 3. They were outside the jurisdiction of the United Kingdom for the purposes of article 1.
- Bankovic confirmed that the jurisdiction referred to in article 1 is primarily territorial, a conclusion which was restated in Al-Skeini at para 131:
"A state's jurisdictional competence under article 1 is primarily territorial. Jurisdiction is presumed to be exercised normally throughout the state's territory. Conversely, acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of article 1 only in exceptional circumstances."
- Between paras 133 and 142, the Grand Chamber continued by enumerating the exceptions thus far identified in the Strasbourg jurisprudence. Acts of diplomatic and consular agents may amount to an exercise of jurisdiction when these exert authority and control over others (para 134). So too the exercise of extra-territorial executive or judicial power at the invitation of a foreign government (para 135). In addition, the use of force by a State's agents operating outside its own territory may bring those under its control within its jurisdiction for article 1 purposes (para 136). An area occupied by the military forces of a Contracting State outside its own territory and subject to its effective control will be within its jurisdiction for the purposes of article 1 (paras 138 and 139). Paras 141 and 142 touched upon the vexed question of responsibility when one Contracting State occupies the territory of another.
- Miss Harrison accepts that none of the exceptions identified by the Grand Chamber in Al-Skeini is apt to cover the circumstances of these appellants. She submits that in international law a state has jurisdiction for various purposes over its nationals (the deprivation of nationality being a clear example of the exercise of that jurisdiction). She submits that in itself is sufficient for the purposes of article 1 of the Convention to be recognised as an exception. The deprivation of citizenship, an administrative process conducted entirely within the United Kingdom, produces effects outside its territory. The principal consequence is that it prevents the appellants from returning to the United Kingdom, or for practical purposes the EU. Miss Harrison relies upon two decisions in Strasbourg in support of the submission that a decision to deprive an individual of citizenship is an exercise of jurisdiction for the purposes of article 1 of the Convention. First, the East African Asians case, which arose from the wholesale expulsion from Uganda on racial grounds of individuals of Asian descent but British nationality. Secondly, the Genovese case, which concerned a complaint that the denial of Maltese nationality to a boy born out of wedlock to a British mother and a Maltese father living in Scotland gave rise to a breach by Malta of the boy's article 8 and 14 rights.
- At para 26 of its final judgment, SIAC considered the East African Asians case. I gratefully adopt its summary, with which I agree:
The issue in the case was whether the refusal by the United Kingdom of final admission to thirty-one applicants of Asian extraction formerly resident in Uganda pursuant to the Commonwealth Immigrants Act 1968 subjected them to inhuman or degrading treatment under Article 3 ECHR. Twenty-five of the applicants were British citizens. The 1968 Act removed their right of abode in the UK. Accordingly, all were refused permanent admission to the UK. Some were temporarily detained in the UK. Five were subjected to "shuttle-cocking" and six were stranded in Belgrade on their way to the United Kingdom. All were exposed to the risk of humiliation and ill-treatment in Uganda. (Facts taken from §252 of the separate opinion of Mr. J. E. S. Fawcett). Jurisdiction was not referred to in the majority report of the Commission. It appears from §238 of Mr. Fawcett's opinion that in its admissibility decision the Commission had decided that all thirty-one applicants were within the jurisdiction of the United Kingdom under Article 1 because they were UK nationals (ressortissants). All twenty-five British citizens were eventually given permission to stay permanently in the United Kingdom during the proceedings: §210. The Commission concluded by six votes to three that Article 3 had been violated in the case of the twenty-five British citizens and unanimously that it had not been violated in the case of the six remaining applicants, who were only British protected persons. The reasoning on jurisdiction is unstated and unclear. It is not a judgment of the court. It is known that, before the report was made on 14th December 1973, all twenty-five British citizens were given permission to stay permanently in the United Kingdom. Some or all of them must, accordingly, have been present in the territory of United Kingdom during the proceedings before the Commission. The issue of jurisdiction is, accordingly, unlikely to have been given careful consideration by the Commission. We do not regard the East African Asians case as determinative of the view which the Strasbourg Court would now take of the issue or persuasive.
- In a case which post-dates the judgment of SIAC, the Strasbourg Court was given the opportunity to comment upon the East African Asians case in a context similar to the one with which these appeals are concerned. It chose not to. The Fourth Section of the court gave judgment in Abdul Wahab Khan v United Kingdom (App. No. 11987/11) on 28 January 2014. The applicant came to the United Kingdom on a student visa in October 2006. Before his leave expired he and four other Pakistani nationals were arrested in connection with an alleged conspiracy to carry out a terrorist attacks. No charges were brought, but all were served with notices of intention to deport. He left the United Kingdom voluntarily in August 2009. In consequence, the notice of intention to deport was withdrawn. The applicant had leave to remain in the United Kingdom until 31 December 2009. On 18 December he was notified that his leave had been cancelled because his presence was not conducive to the public good on national security grounds in consequence of his involvement in Islamist extremist activity. He was made the subject of an exclusion order. He appealed to SIAC, as did others of the group, two of whom had remained in the United Kingdom throughout. The applicant and one other who was in Pakistan had asked SIAC for a direction to facilitate their return to the United Kingdom on article 3 grounds, it being their contention that they were exposed to a risk of ill-treatment in Pakistan.
- SIAC rejected that argument holding that the United Kingdom had no jurisdiction over Pakistani nationals resident in Pakistan, even though it was the Home Secretary's decision to cancel the leave to enter and remain which prevented his return. Permission to appeal to the Court of Appeal was refused. One ground contended that SIAC was wrong to conclude that the applicant was outside the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention. Abdul Khan complained of a violation of article 3 in his application to the Strasbourg Court. He argued that there was
"a difference between someone who had never been in the jurisdiction and someone who left and was refused re-entry. The state's obligations under Article 3 had to be taken into account in making decisions which could have an adverse effect on those concerned, whether in the United Kingdom or abroad." (para 19).
- This formulation of the applicant's claim is in substance the same as that advanced by the appellants. The difference is of degree, not principle. A foreign national will benefit from leave to enter and remain, of varying lengths. Whilst he has that leave he may come and go subject to any other conditions of the leave. A British national may come and go as he pleases without limit of time or purpose. The applicant suggested that he was at risk of ill-treatment in Pakistan and was being denied the opportunity to travel to the United Kingdom to avoid that risk. In support of his argument the applicant relied upon the East African Asians case and also the positive obligation under article 8, in limited circumstances, to admit a foreign national to the Contracting State as established in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471.
- The Strasbourg Court identified the issue whether articles 2 and 3 were engaged as depending on "whether, although he is in Pakistan … the applicant can be said to be "within the jurisdiction" of the United Kingdom for the purposes of Article 1 of the Convention." It noted that SIAC and the Court of Appeal had applied Bankovic (their decisions pre-dated Al-Skeini) and suggested that there was nothing in the court's subsequent case law to doubt the correctness of the conclusion (para 24). The court then referred to Al-Skeini but concluded that the applicant's case did not fall within the exceptions there identified (para 25). It continued:
"26. Moreover, and contrary to the applicant's submission, there is no principled reason to distinguish, on the one hand, someone who was in the jurisdiction of the Contracting State but voluntarily left that jurisdiction and, on the other, someone who was never in the jurisdiction of that State. Nor is there any support in the Court's case-law for the applicant's argument that the State's obligations under Article 3 require it to take this article into account when making adverse decisions against individuals, even when those individuals are not within the jurisdiction."
- In rejecting the arguments on jurisdiction, the court next noted that the positive obligation under article 8 was concerned with reuniting family members with others living in the Contracting State. The focus was on the article 8 rights of the person who was within the jurisdiction (para 27). It continued:
"The transportation of that limited Article 8 obligation to Article 3 would, in effect, create an unlimited obligation on Contacting States to allow entry to an individual who might be at real risk of ill-treatment contrary to Article 3, regardless of where in the world that individual might find himself."
It added (para 28) that it was irrelevant to the question of jurisdiction that the applicant's exclusion on national security grounds was said to have increased the risk he faced in Pakistan.
- The court did not make any observations about relevance of the East African Asians case on the applicant's argument. It was not mentioned in its discussion of the Strasbourg case law; but clearly the court did not regard it is having any qualifying impact on the approach to article 1 which emerged from Bankovic and Al-Skeini. In my view, the decision of the Strasbourg Court in Abdul Wahab Khan provides powerful support for the conclusion reached by SIAC that the appellants were not within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention when the decision to deprive them of their nationality was taken.
- Jurisdiction was neither argued nor mentioned in the judgment of the Genovese case. It is unclear from the judgment whether the mother and son were in Malta when the proceedings were commenced there; and anyway, given EU free movement rights, the issue may well have been academic. On any view, this case cannot qualify the clear statements of principle articulated by the Grand Chamber in Al-Skeini. SIAC concluded that the case did not support the appellants (para 22) and, in my judgment, were right to do so.
- Jurisdiction for the purposes of article 1 of the Convention has been considered on a number of occasions in the House of Lords or Supreme Court. Sandiford v Secretary of State for Foreign and Commonwealth Affairs  UKSC 44;  1 WLR 2697 raised a question of jurisdiction in novel circumstances. Lord Carnwath and Lord Mance gave a judgment with which all other members of the court agreed. Mrs Sandiford, a British national, had been sentenced to death in Indonesia following her conviction for drug trafficking offences. She had been unsuccessful in her appeal to the High Court and Supreme Court of Indonesia. The only legal options available to her to avoid execution were an application to the Supreme Court to reopen the case, and an application to the President for clemency. The Foreign Office were providing consular assistance and advice but had refused to provide funding for legal assistance. It was argued on her behalf that the refusal to provide legal assistance was a breach of article 6 of the Convention. The argument advanced on her behalf was that the British authorities had diplomatic and consular access to Mrs Sandiford pursuant to the Vienna Convention and the undoubted power to provide her with funds for legal assistance. The diplomatic and consular access flowed from her British nationality. The question was whether Mrs Sandiford was within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention. In para 23 their Lordships noted,
"However, there is no general Convention principle that the United Kingdom should take steps within the jurisdiction to avoid exposing persons, even United Kingdom citizens, to injury to rights which they would have if the Convention applied abroad."
They went on to draw a distinction with cases, such as Soering v United Kingdom (1989) 23 EHRR 439 involving surrender or removal to a third country. In para 25 Lords Carnwath and Mance said that there was no exercise of authority or control over Mrs Sandiford which could bring into play the extra-territorial exception recognised in Al-Skeini, before adding:
"26. The United Kingdom's diplomatic and consular agents in Indonesia have of course been active in relation to Mrs Sandiford's predicament … But their support for her and their activity in this regard have hitherto excluded any involvement in instructing or funding lawyers on her behalf. A deliberate refusal to instruct or fund lawyers on behalf of Mrs Sandiford cannot constitute an exercise of authority or control over her. It is the opposite – a decision not to undertake or exercise any relevant authority or control."
- In international law states have "authority" over their nationals in many respects. That is uncontroversial and was supported by much material deployed by Miss Harrison. But that is not the same as exercising "authority or control" for the purposes of article 1 of the Convention. Miss Harrison's argument had the effect of conflating two different concepts.
- Depriving a national of British citizenship has the effect of divesting the United Kingdom of any authority or control over the person concerned. It is the antithesis of the exercise of control necessary to found jurisdiction under article 1. In my judgment, both the Strasbourg jurisprudence and its application in this jurisdiction at the highest level vindicate the conclusion of SIAC that for the purposes of article 1 of the Convention the appellants at all times material to these proceedings were outside the jurisdiction of the United Kingdom.
Substantive Finding on article 3 ECHR
- Despite its conclusion on jurisdiction SIAC nonetheless considered whether the action of the Home Secretary exposed the appellants to any material risk in Pakistan at the hands of the Pakistani state or non-state actors. At para 31 SIAC explained that detailed reasons were set out in the confidential and closed judgments, but went on to state its conclusion and approach.
- SIAC indicated that it would take into account any contemporaneous actions by the United Kingdom authorities, which would include "any communication to the Pakistani authorities of the fact of the order and the reason for making it" about which there was no open evidence. SIAC also noted the absence in open evidence of any risk assessment which may have been made relating to the making of the orders. It indicated that consideration of such matters would be found in its closed judgment. In para 33 SIAC recorded that there was no evidence that the appellants had come to any harm in the period of 17 months which had elapsed between the making of the decisions and the final determination of the appeals. It concluded:
"For the reasons set out in the closed and confidential judgments, we are satisfied that, if the United Kingdom owed to the appellants, when making and implementing the deprivation decision, duties under articles 2 and 3 ECHR, it did not breach them."
- It was the appellants' case that they would be at risk by taking part in the appeal and providing detailed evidence in rebuttal of the allegations they faced from the Home Secretary. It would necessarily involve being seen as providing information about the Pakistani intelligence services, the LeT or Al Qaeda. If the domestic intelligence agencies passed any information relating to the appellants to their Pakistani counterparts that would generate risk, whether at the time of the decisions or later. The appellants also prayed in aid "evidence in the public domain of cases of alleged complicity of the UK of ill-treatment of suspects in Pakistan". That the appellants had not suffered in the intervening 17 months was not determinative of the issues.
- Miss Harrison's open skeleton argument noted that detailed submissions on this aspect of the case in their confidential grounds and submissions, which I have considered in a short confidential annex to this judgment.
- I am unpersuaded that SIAC's evaluation of the risks displays any error of law. I agree with its conclusion on this part of the case. The appellants' argument in their confidential material does not, in my view, support any other conclusion. I should note that Miss Harrison advanced an alternative argument, namely that having concluded that the appellants were not within the jurisdiction for article 1 purposes SIAC should not have gone on to "determine the substantive article 3 point". I do not consider that SIAC can be criticised for dealing with the substantive issue on the hypothetical basis that its legal approach was flawed. That is a commonplace in judicial proceedings which can avoid sterile appellate proceedings or a rehearing after an appeal.
- We heard no separate argument on whether, for the purposes of article 1 of the Convention, Mrs S or A should be treated as being within the jurisdiction of the United Kingdom. However, they could at any time return to the United Kingdom. SIAC concluded that their article 8 rights, if engaged, could not help in these appeals, as to which see the discussion above concerning proportionality. There can be little doubt, in my view, that if Mrs S and A had remained in, or returned to, the United Kingdom article 8 would not have provided a basis for contending that S1 should be admitted in the face of a finding that his presence here constituted a danger to national security.
- None of the grounds advanced on behalf of the appellants, or the wider arguments deployed in the skeleton argument, succeeds. I would dismiss the appeals. I would grant permission to apply for judicial review but dismiss the claim. A short confidential annex to this judgment has been made available to the parties.
LORD JUSTICE LINDBLOM
- I agree that these appeals and judicial review application should be dismissed for the reasons given in the judgment (including confidential annex) of Burnett LJ.
LORD JUSTICE BRIGGS
- I also agree.