Supreme Court dismisses appeal against deprivation of British citizenship by woman in Syria

The Supreme Court has upheld a decision of the Court of Appeal, which had agreed with the Special Immigration Appeals Commission’s decision to dismiss an appeal against deprivation of British citizenship and an application for entry clearance by a woman in Syria. The case is U3 v Secretary of State for the Home Department [2025] UKSC 19.

Background

The appellant is in Syria and she was a dual Moroccan/British citizen before a decision was taken by the Home Secretary to deprive her of that citizenship. On 18 April 2017 the Home Secretary gave notice under section 40(5) of the British Nationality Act 1981 that she had decided to make an order under section 40(2) depriving the appellant of her citizenship on the grounds that it was conducive to the public good. A national security certificate was issued under section 40A(2) meaning that the appeal, lodged on 31 May 2018, was made to the Special Immigration Appeals Commission.

The appellant has three British children who were repatriated to the UK in 2019. On 11 August 2020 she applied for entry clearance to come to the UK. The application was refused and another national security certificate issued. The appellant appealed the entry clearance decision on article 8 grounds on 15 January 2021.

Appeal to the Special Immigration Appeals Commission

The appeals were heard together and dismissed on 4 March 2022. SIAC followed the approach set out by the Supreme Court in R (Begum) v Secretary of State for the Home Department [2021] UKSC 7 (our write up) that the national security assessment could be challenged on public law grounds only.

The appellant denied that she was a threat to national security and gave evidence that she was in an abusive, coercive and controlling relationship at the time of her travel to Syria. She said that she did not become radicalised in Syria and did not support ISIL. SIAC noted social media evidence that indicated otherwise and that the appellant had accepted that she was still in contact with two “Dawlah fanatics”.

SIAC found that the appellant “had been subjected to serious and sustained violence, and coercive control” but that she had still been able to make reasoned decisions for herself and the children. SIAC said that it was possible that an ideological commitment to ISIL had formed part of the appellant’s decision to leave the UK. It was for the Home Secretary to make an assessment based on all of the evidence and SIAC held that it could not interfere with that decision unless there was a public law error.

SIAC concluded that, based on all the evidence, both open and closed, the Home Secretary could rationally assess that the appellant was ideologically aligned with ISIL when she left the UK and there was no public law error. The deprivation appeal was dismissed.

On the article 8 point, SIAC considered that the children for well cared for and thriving in the UK and that the appellant may face prison in the UK which may affect the children’s well-being as well as decreasing the current level and quality of contact that she had with them. The interference with the article 8 rights of the children was considered to be proportionate in light of the assessment of the threat posed by the appellant and the appeal on article 8 grounds was also dismissed.

The appellant appealed to the Court of Appeal on the grounds that SIAC should have made its own findings of fact and had take too narrow a view of its powers. The Court of Appeal said that if SIAC accepted evidence that showed that the Home Secretary was incorrect on an evidential point then SIAC would have a duty to make the finding of fact and allow the appeal. However the court went on to say that this could only be done where the relevant finding was pivotal to the appeal.

In light of this, the court considered that SIAC could have made a finding of fact on one matter, as it had accepted that the appellant had become disillusioned with ISIL, but that this was not material to the outcome of the appeal. The Court of Appeal dismissed the appeal.

The Supreme Court

The appellant appealed to the Supreme Court which summarised the argument as:

The essential proposition for which the appellant contends is that SIAC should reach its own findings of fact on the central “building blocks” of the Secretary of State’s national security assessment (including the assessment that the appellant had aligned with ISIL), and, if it considers in the light of its own findings of fact that a different assessment of the threat posed by the appellant to national security is possible, then the appeal should be allowed and the case remitted to the Secretary of State for reconsideration on the basis of SIAC’s assessment of the evidence.

JUSTICE intervened in the case and made submissions to the effect that it was “unprincipled and illogical” for the Court of Appeal to have made the distinction it did between pivotal and non-pivotal facts. They submitted that:

if material findings of fact were made in relation to matters which had not been considered by the Secretary of State at the time when the decision was made, then the appeal should be allowed, unless the decision would inevitably have been the same even if those matters had been taken into account. That was essential in order to ensure that the appellant was treated fairly, given that she had no opportunity to make representations to the Secretary of State before the deprivation decision was taken.

The Supreme Court said that the nature of the issues dealt with by SIAC requires it to take a different approach to the usual judicial function. Considering the matter of a risk to national security involves an evaluative assessment that the risk exists, rather than the existence of a particular fact or event. The court said:

That is not by any means to say that an assessment of risk need have no basis in objective evidence, or that the question whether the risk can justify such a serious measure as the deprivation of citizenship is beyond judicial consideration. But it does mean that the task of SIAC in addressing those questions is not the usual judicial function of applying the law to facts found on a balance of probabilities.

The Supreme Court said that there is a second reason for SIAC’s role to differ from usual in the context of these appeals, and that is because the decision is one that involves the exercise of judgment for which responsibility has been given to the Home Secretary. The court reiterated that “SIAC’s role in this context is therefore to review the Secretary of State’s exercise of his or her discretion, based on an evaluative judgement of the risk to national security”.

In carrying out that review, the court said that when reviewing a discretionary decision a court of tribunal will always attach weight to the assessment made by the primary decision-maker and that this is important and of particular significance in this case. This is because the Home Secretary has been given expert advice including that based on intelligence from the Security Service. The public safety element is another reason why SIAC should place “very considerable weight” on the Home Secretary’s assessment of the risk.

The Supreme Court also considered whether it was necessary to establish a risk to national security to a given standard of proof. The court said that “the correct approach for SIAC to adopt in an appeal depends on the nature of the issue or issues which it has to decide” and there were some issues which could not be determined on a balance of probabilities.

That will be the case, in particular, where the determination of the issue does not depend on whether, on a balance of probabilities, a specific fact is true or not, but on whether, on an overall assessment of the evidence bearing on the issue, there is a proper basis for a discretionary decision to deprive a person of citizenship or to refuse the person entry clearance because of a risk to national security.

The court held that SIAC had approached the appeal correctly with the exception that it was incorrect “to proceed on the basis that the issue it has to decide is the rationality of the decision at the time it was made, and that it cannot take account of evidence relating to matters arising subsequently”. This is because:

it is possible for the appeal to be based on evidence which was not before the Secretary of State at the time when the deprivation decision was taken, as SIAC understood. There is nothing in the statutory provisions which restricts the admissible evidence to matters which arose before the decision was taken. The question is therefore whether the evidence in question is relevant to deciding whether the appeal should be allowed. In that regard, it is important that the Secretary of State’s decision is reviewed and the national security assessment is updated during the appeal proceedings, in the light of the appellant’s evidence and submissions. As a result, the decision before SIAC when it decides the appeal is in reality a decision which has been re-considered and re-affirmed by the Secretary of State at the time of the appeal hearing in the light of the evidence adduced in the appeal. In those circumstances, it is possible that evidence relating to matters post-dating the original decision may have a bearing on whether the deprivation of citizenship remains appropriate. 

However this did not have any effect on SIAC’s decision.

The Supreme Court disagreed with the Court of Appeal’s approach and stated that “The relevant question is not whether SIAC considers, on a balance of probabilities, that the appellant travelled or stayed somewhere, but whether the evidence as a whole provides a rational basis for the Secretary of State’s decision”. Again, the court found that this did not change the fact that the Court of Appeal had correctly upheld SIAC’s decision to dismiss the appeal.

The Supreme Court also held that the article 8 assessment was carried out by SIAC correctly and the appeal on this point was also dismissed.

Conclusion

Even Jacob Rees-Mogg doesn’t think that the UK should be doing this and has called for people in the appellant’s situation, including Shamima Begum, to be brought home. Given the position of the courts and their reluctance to overturn the Home Secretary’s decisions, it seems the only hope left for these families is that the government will take action.