The Court of Appeal has upheld a decision by the Special Immigration Appeals Commission to dismiss an appeal against the deprivation of British citizenship of a man who travelled to Syria and fought with a group aligned to Al-Qaeda. The case is B4 v Secretary of State for the Home Department [2024] EWCA Civ 900 and as it is an appeal from SIAC there is an open decision, covered below, and a closed decision, the contents of which will remain a mystery.

Background

The appellant was born in a non-EU country on 21 December 1988 and he later moved to the UK with his parents. He was registered as British in 2004 and is a dual national. In 2014 he travelled to his country of birth and then to Syria via Turkey. In 2015 he left Turkey and returned to his country of birth and started working there.

In 2018 he and a friend went to a European country to meet someone known to the UK intelligence services to ask how they might return to the UK. This is a SIAC case so I am assuming there are details in the closed decision as to why this question even needed to be asked given the appellant was a British citizen. The appellant said that MI6 were considering offering him the ability to return to the UK in exchange for recruiting him.

Later in 2018 his friend flew to the UK and was arrested on arrival before being informed that no further action would be taken by the police. The appellant said that this is what triggered a rushed deprivation decision in his case.

A ministerial submission was made agreeing with the assessment of the security service that the appellant would pose a threat to national security and to members of the public if returned to the UK. It was recommended that he be deprived of his citizenship or in the alternative that a temporary exclusion order be imposed. It was considered that there were no substantial grounds for believing that the deprivation decision would lead to a real risk of mistreatment in breach of articles 2 or 3 of the European Convention on Human Rights.

On 26 October 2018 the Home Secretary made a decision to deprive the appellant of his British citizenship under section 40(2) of the British Nationality Act 1981 on the grounds that it was conducive to the public good, because of his travel to Syria where he had aligned himself with and fought with a group connected to Al-Queda.

He appealed to the Special Immigration Appeals Commission and all six grounds of appeal were dismissed on 1 November 2022. The commission granted permission to appeal to the Court of Appeal on some grounds, and the Court of Appeal granted permission on others.

Court of Appeal

The first ground of appeal in the Court of Appeal was that SIAC erred in directing itself that the Home Secretary only needed to take into account considerations that he was required to by Wednesbury  reasonableness. It was also argued that there were factors impliedly required to be considered under section 40 of the British Nationality Act 1981 and that failing to take into account other factors “obviously material” was a public law error.

Specifically, this ground related to exculpatory material that was not taken into account but the appellant was arguing should have been. The court rejected this ground, saying that “I do not read SIAC’s judgment as having said that exculpatory material is not an obviously material consideration, which the Secretary of State was required to take into account before depriving the Appellant of his British citizenship.”

The second ground of appeal was that SIAC erred in relation to the ministerial submission by directing itself that “it is not for the court to decide for itself whether the summary [presented to the decision-maker] was fair and balanced” and failing to decide on whether a fair process was held.

The Court of Appeal agreed that “the correct approach is for SIAC itself to decide whether the advice given to the Secretary of State was fair and balanced but, in performing that task, SIAC must give appropriate respect to the judgments of the experts involved, for reasons both of institutional capacity and democratic accountability.”

With that in mind, the court said that

Having considered the ministerial submission to the Secretary of State, and the Annexes to it, with care, I am satisfied that the advice that was given to the Secretary of State was fair and balanced. It made the salient points that needed to be brought to the decision-maker’s attention. It did not set out all of the underlying intelligence but that was neither necessary nor desirable, since the experts in the field are the Security Service and others, not the Secretary of State. There is also the risk that the Secretary of State will be overwhelmed with material and so be unable to see “the wood for the trees”. What is required is a summary of relevant matters, which are set out in a fair and balanced way. I am satisfied that is exactly what the Secretary of State was given here.

The third ground of appeal was dealt with in the closed judgment and was also dismissed. Ground four was whether SIAC was required to apply “anxious scrutiny” in the appeal. The Court of Appeal held that there was “no material dispute” between the parties on this point and that SIAC had applied the appropriate level of scrutiny in this case.

Conclusion

The closed appeal was also unsuccessful and so the appeal was dismissed in full.