What procedure should be followed when someone is deprived of British citizenship, at a time when he or she is abroad, to enable return to the UK to participate in a statutory appeal to the Special Immigration Appeals Commission (SIAC)? Should judicial review proceedings be initiated to seek an interim order requiring the Secretary of State to facilitate return?

In R (W2 and IA) v Secretary of State for the Home Department [2017] EWCA Civ 2146, the Court of Appeal concluded no, judicial review is not the correct approach. SIAC has the power to adjudicate a refusal of leave to enter in the course of an appeal, and therefore provides an adequate alternative remedy to judicial review.

Deprivation of citizenship

As covered previously on this blog, the Secretary of State has the power to make an order under section 40 of the British Nationality Act 1981 to deprive a person of their British citizenship status.

One of the grounds for deprivation is that it would be conducive to the public good to do so where the person is a threat to national security. That was the ground relied upon by the Secretary of State in this particular case, at a time when the person (codenamed “W2”) was located outside of the UK. W2 was deemed to be a threat to national security on account of his travel to Syria and involvement with ISIL.

Right of appeal to SIAC

An order depriving citizenship carries with it a statutory right of appeal to SIAC. W2 duly lodged an appeal. His wife who was in the UK also initiated judicial review proceedings. In the judicial review, she and W2 challenged the deprivation order and sought an interim order requiring the Secretary of State to facilitate W2’s return to the UK to enable him to participate in his statutory appeal to SIAC.

It is those judicial review proceedings that were the subject of this case.

Scope of SIAC’s jurisdiction

The Court of Appeal considered the scope of SIAC’s jurisdiction and the correct procedure for deciding whether W2 should be able to return to the UK to take part in the appeal. Put another way, is SIAC in a position to consider whether his return was necessary for the appeal to be effective?

Beatson LJ held that, whilst SIAC does not have the power to order interim relief, there is no reason why W2 could not make an application for leave to enter pending the appeal. If that application were refused by the Secretary of State, he could have his appeal against that refusal heard by SIAC under section 2 of the Special Immigration Appeals Commission Act 1997, possibly as part of an expedited process. As explained in paragraphs 86-88 of the judgment, SIAC:

will have available the evidence submitted by [W2] and others in support of his submission that an out of country appeal will not be effective in his circumstances, and it will have any evidence the Secretary of State files in support of the submission that such an appeal will be effective. This will mean that SIAC, the relevant specialist tribunal, can “look in detail at what is required to ensure an effective appeal in cases such as this”: see Lord Carnwath in Kiarie and Byndloss at [104].

SIAC, with the participation of its lay members with relevant expertise, will be able to assess the difficulties claimed by W2 in instructing lawyers and the extent to which oral evidence by him is necessary (for example in relation to the impact of the separation on his family) and to decide whether, in the light of Kiarie and Byndloss, the refusal of entry in his circumstances is unlawful. It will be able to consider whether there is a Convention-compliant system for the conduct of a SIAC appeal from abroad. In doing so, it will be able to take into account the matters relied on before this court by Ms Giovanetti in distinguishing the circumstances of this case from those of the appellants in Kiarie and Byndloss. They include the fact that SIAC has video conferencing facilities which have been frequently used in the past by appellants who are abroad, what SIAC will do to facilitate steps to enable W2 to give evidence orally to it, the extent of the legal advice available to W2 and his ability to give his lawyers instructions, and the position in relation to experts.

SIAC will also be able to consider whether the burden of showing that an out of country appeal will be effective lies on the Secretary of State in this case, as Kiarie and Byndloss held that it did in that case.

As this shows, the decision was very much in the shadow of R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 in which the Supreme Court heavily criticised the Secretary of State’s “deport now, appeal later” policy (see also my previous blog on this case).

Practical effect?

This case will provide guidance to practitioners dealing with SIAC cases where their client is abroad when the decision triggering a right of appeal is made.

From a practitioner’s point of view, whilst I see the merits on paper in Beatson LJ’s proposed procedure, I don’t see it being easy for an appellant abroad to actually make such an application for leave to enter to return to the UK to participate in an appeal – particularly in the absence of any clear method or procedure for doing so.

In this particular case, the “application” for leave to enter was made via a request in a pre-action protocol letter sent prior to initiation of judicial review proceedings. If judicial review is not the appropriate remedy to seek an order facilitating entry to the UK, is a pre-action protocol letter still appropriate? Anyone who has tried to make a “discretionary” application to the Home Office will be aware that it is no longer an easy thing to do (in the past it was possible to apply simply by submitting a covering letter to a local Home Office branch).

Getting such an application for leave to enter to an appropriately senior caseworker who can consider it before any SIAC appeal hearing takes place will be no easy feat, let alone then having to persuade SIAC to expeditiously hear the case against a refusal. Whether this procedure will work in the future remains to be seen.