K2 v the United Kingdom (Application No 42387/13)

The use of the Home Secretary’s power to strip a British citizen of their citizenship is on the rise. It has been the subject of debate where its use has rendered a person stateless following a series cases in the higher courts (see, for instance, here and here). But what arguments can be used to prevent the deprivation of citizenship where the person remains a citizen of a foreign country?

In K2, the attempt focused on the applicant’s right to a private and family life under article 8 of the European Convention on Human Rights. The complaint was declared inadmissible, in a judgment in which the applicant’s private life and family feature very little indeed.

The factual background

K2 was born in Sudan. He arrived in the UK as a child, and was granted indefinite leave to remain as the minor dependent of a refugee, his father. K2 became a naturalised British citizen in 2000.

In October 2009, following his arrest for a public order offence arising out of a protest against military action in Gaza, K2 left the UK. He maintains that he travelled directly to Sudan.

Before the Special Immigration Appeal Tribunal (“SIAC”) the Home Department stated in a Security Service assessment that he first travelled to Somalia with two extremist associates to Somalia. It states that he there engaged in terrorism-related activities linked to Al-Shabaab, before travelling to Sudan in spring 2010.

In 2010, the Secretary of State for the Home Department deprived him of his UK citizenship on the ground that to do so would be conducive to the public good. The applicant was also barred from re-entering the UK, under the Crown’s common law prerogative power on the ground that he was “involved in terrorism-related activities” and had “links to a number of Islamic extremists.”

K2’s judicial review

K2 sought to challenge the Secretary of State’s decisions in two ways. First, he sought to challenge the decision to exclude him from the UK by way of judicial review.

K2’s judicial review failed in the High Court, and appealed to the Court of Appeal. The grounds of appeal raised three issues, namely that:

i) the prerogative power to exclude a person from the United Kingdom, pending an appeal against a decision of the Section 40(2) have been impliedly extinguished;

ii) the decision to exclude him was procedurally unfair, because he would only be able to conduct his appeal from outside the jurisdiction; and

iii) he lacked the right to an effective remedy, guaranteed by European Law.

The appeal failed on each ground. The judgment is available here. In short, the High Court found that there had been no statutory abrogation or modification of the Crown’s prerogative power to exclude an alien from the UK. On the second ground, the requirements of procedural fairness did not generate a right to be present at the SIAC. Finally, EU law was not engaged and therefore the appeal was dismissed.

Permission to appeal to the Supreme Court was refused in February 2013.

K2 in SIAC

K2 also appealed against the decision to deprive him of his citizenship. In taking the decision to deprive K2 of his citizenship, the Secretary of State certified that she had relied on information which in her opinion should not be made public in the interests of national security. Therefore K2’s right of appeal lay to the SIAC, which was stayed while the judicial review proceedings were pursued.

The SIAC dealt with the appeals in a number of preliminary and substantive judgments, which are available here, here and a note on the judgment by the SIAC is here. The main arguments are summarised by the ECtHR as follows:

that he had a positive case which he wished to put in rebuttal of the Security Services’ assessments and the Secretary of State’s conclusions;

that his positive case demonstrated that he did not pose any (or any sufficient) risk to national security and, accordingly, there was no adequate basis upon which he should be deprived of citizenship;

and that he was unable to provide instructions as to the national security case against him and/or to participate meaningfully in his appeal as it was unsafe for him to do so from Sudan

The appeal was unsuccessful. The preliminary and substantive issues decided were substantial, but a number of aspects are highly relevant to the ECtHR’s case in K2:

1. the SIAC made a number of findings based on secret, or “closed” evidence which were not disclosed to the applicant;
2. the Special Advocates acting for K2 were acting in the absence of instructions from him as to the substance of Secretary of State’s case regarding terrorism-related activities;
3. as a result, the Special Advocates made submissions only on questions of procedural fairness.

K2 in the ECtHR: A violation of article 8?

K2 complained to the ECtHR that the decisions to deprive him of his British citizenship and exclude him from the UK breached his right to respect for his family and private life, and amounted to an attack on his reputation.

Article 8 of the ECHR provides that:

1. Everyone has the right to respect for his private and family life, his home and his correspondence
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Court held that arbitrary denial or revocation of citizenship is capable in some circumstances of engaging article 8 due to its effect on the private life. This is consistent with observations made in previous cases such as Karassev v Finland, no. 31414/96.

The Court outlined two issues to be considered when determining such a decision’s effect on an applicant’s article 8 rights. The first was whether the revocation of citizenship was arbitrary. The second was the effect of the revocation for the applicant.

Was the deprivation of citizenship arbitrary?

The point raised unsuccessfully in the judicial review proceedings that the deprivation was done otherwise than in accordance with the law because the power had been impliedly repealed was not repeated in Strasbourg. The Court observed that Section 40(2) of the British Nationality Act 1981 states that

“The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.”

Further, the Crown enjoys a prerogative power under the common law to exclude a person from the UK. Therefore, the Court found that the decision to deprive K2 of his citizenship was done “in accordance with the law.”

The Court also found that the Home Secretary had acted swiftly and diligently. The applicant had left the UK in October 2009, subsequently engaging in terrorism-related activities in Somalia. The Home Secretary had deprived him of citizenship in June 2010.

The focus of this point was whether the applicant was afforded the procedural safeguards required by Article 8.

The Court noted that, although some aspects of the case had been kept secret, it had been known to the Special Advocates, and K2 was broadly aware of the nature of the case against him. On this point, the Court noted that it had previously held that similar SIAC proceedings had sufficient procedural safeguards to be compliant with article 8 in I.R. and G.T. v. the United Kingdom, nos. 14876/12 and 63339/12.

K2 also argued that he could not properly make case from abroad, because he feared that telecommunications could be intercepted by Sudanese authorities, which may lead to him being harmed.

The Court rejected this argument on the following grounds:

1. Whereas an article 8 issue may arise where there is clear evidence that an applicant’s participation in an appeal is significantly impeded, Article 8 cannot be interpreted so as to impose a positive obligation on States to facilitate in country appeals.
2. K2 was able to judicially review the decision to exclude him from the UK, and present his case before the SIAC. The SIAC carefully considered the open and closed material before it, and concluded that there were a number of ways in which the K2 could safely communicate during the process. The Court did not consider itself able to impugn their findings on this factual issue.
3. The SIAC took a cautious approach to making inferences adverse to K2, and still made firm conclusions of the probability of terrorist activities on his part.
4. The procedural difficulties encountered by K2 were of his own doing. His appeal was out of country because he had decided to flee the UK rather than surrender to bail.

What were the consequences of the deprivation of citizenship?

The Court also considered the consequences for K2 of the revocation of his citizenship in assessing any alleged interference with his article 8 rights. The Court noted that entitled to obtain a Sudanese passport, and had done so. The Court also noted that the SIAC had found that K2 had left the UK some time prior to the decision to deport him. His wife and family were no longer living in the UK and were able to go to Sudan. Finally, the applicant’s own family were able to visit him reasonably often and did so.

Therefore the Court held K2’s claim to be manifestly ill-founded.

Was the treatment of K2 discriminatory?

K2 complained under article 14 read with article 8 that he had been treated differently from British citizens considered a threat to national security because he had dual nationality.

Article 14 provides that:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

However, K2 had not raised this point in the domestic courts. Therefore he had not exhausted domestic remedies, and the Court therefore held this complaint to be inadmissible.

The applicant raised a second point on article 14. He complained that he had been treated differently from non-national residents, who had a right of suspensory appeal against a decision to revoke their leave to remain.

The Court rejected this argument. He had been denied an in country appeal because he had already left the UK when the decision to deprive him of his citizenship was made. The basis for the differential treatment was not that he was a British citizen. The Court pointed out that a non-national whose leave to remain was cancelled would too not be allowed to return to pursue an appeal. The complaint was therefore manifestly ill-founded, and held to be inadmissible.

The future significance of K2

A couple of aspects of the judgment may give practitioners pause for thought. The fact that K2 was “broadly aware” of the nature of the case against him was seen by the judges as key in finding that adequate procedural safeguards existed may require future clarification. It sets a low bar for the state. This may open further avenues of challenge if that part of the judgment is used to provide very little information to persons subject to deprivation of their citizenship.

But it is difficult to see at this stage what the significance of K2 will be.

In some respects, it covers well-trodden ground. The Court’s assessment of the procedural safeguards in SIAC cases was swift, and for good reason. The Court was content to rely on its earlier findings in I.R. and G.T. on this point.

At its heart, perhaps the judgment in K2 will come to be confined to its own particular facts. There was little effect on the applicant’s contact with his family, and therefore limited consequences for the substance of his article 8 rights. There was no movement between EU Member States by the applicant or his family, and therefore no arguments along Zambrano lines could be made. Finally, the applicant had already left the UK of his own volition, and therefore was on one view the maker of his own difficulties in participation in the cases against him.

Of course, this opens the potential for successful arguments in cases where the opposite is true. A person who as a result of the deprivation of his citizenship loses all meaningful contact with his family, or who is determined to remain in the UK, may be able to distinguish his case on those grounds. But in light of these particular facts, it is unsurprising that K2 has failed to mark a sea-change in the application of article 8 to the deprivation of citizenship.

What of K2’s right to a fair trial?

This case is another in which an applicant’s inability to rely on article 6 ECHR in immigration proceedings is clear. It has been long-established since Maaouia v France 39652/98 [2000] ECHR 455 that article 6(1) is not applicable to decisions on the entry, stay and deportation of aliens. This is because according to Maaouia those decisions “do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of article 6(1) of the Convention.”

The focus in K2 on the applicant’s article 8 rights is the natural consequence, but the impression of stretching article 8 beyond its natural meaning is hard to avoid. The crux of the case in Strasbourg were the procedural safeguards afforded to K2 in the determination, review and appeal of the decision to deprive him of his citizenship.

Particularly in light of the Court’s view of the highly limited “consequences” of K2’s inability to return to the UK for his relationship with his family, the need to rely on article 8 seems artificial. It is hard to see how a proper consideration of the potentially prejudicial effect of “closed” evidence can be achieved when looking through the lens of the right to respect for one’s private and family life.

Frances Meyler and Sarah Woodhouse have written this critique for Free Movement of the rule in Maoouia in the context of LASPO.

The breadth of citizenship deprivation powers

The exercise of the Home Secretary’s power to deprive British citizens of their citizenship has increased in recent years, as shown by the publication of this Freedom of Information request. Before 2002, the power was practically never used. In 2014 and 2015, it was used 42 times on the ground that deprivation would be conducive to the public good.

David Anderson QC, the Independent Reviewer of Terrorism Legislation, published in April 2016 a report on the Home Secretary’s power to deprive British citizens of their citizenship. It notes that the underlying principle of citizenship deprivation has a long history: the power is “in keeping with ancient notions of banishment”.

In light of the expansion the use of this power in the UK, the point that it should be subject to rigorous control is even stronger. In K2, reliance on a person stripped of citizenship’s article 8 rights has offered no such redress.