England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/07/2011

The Hon Mr Justice Mitting:

Background

1. The Claimant was born in Sudan and became a naturalised British citizen in 2000. His wife has British and Sudanese nationality, as does his child. Miss Weston tells me - and I have no reason to doubt - that in 2009 he was arrested for and charged with a public order offence arising out of his participation in a protest in January 2009 against Israeli military action in Gaza. He was bailed, but, in October 2009, before he was required to surrender to his bail, he left the United Kingdom for Sudan. Miss Weston does not have instructions as to his precise whereabouts since then, but there is no evidence that he has since departed from Sudan and some which suggests that he has remained there: at a port stop on 4 February 2011, his wife, returning to the United Kingdom after 9 months spent in Khartoum, said that the Claimant was living in Sudan because he needed to get away and things had been getting on top of him; at a separate port stop on 6 May 2011, the Claimant's mother, also returning from Sudan, said that the Claimant was working as a part time teacher in a district of Sudan which she identified. On 11 April 2011, the Claimant's UK solicitors notified the Treasury Solicitor and SIAC that he had obtained a nationality certificate from the Sudanese authorities, so that he would not now be contending that deprivation of British citizenship would leave him stateless under s40(4) British Nationality Act 1981.
2. By a notice sent under cover of a letter addressed to the Claimant's UK address, the Defendant gave notice of her intention to deprive him of his British citizenship on the grounds that it would be conducive to the public good to do so because the Security Service had assessed that he was involved in terrorism related activities and had links to a number of Islamist extremists. By an order signed on behalf of the Defendant on 14 June 2010, she deprived the Claimant of his British citizenship on the ground that it was conducive to the public good to do so. On the same date, the Defendant personally decided to exclude the Claimant from the United Kingdom on identical grounds. Notice of that decision was served by first class post and special delivery on the same date. The Claimant has exercised his statutory right of appeal to SIAC against the decision to deprive him of his British citizenship. Because the decision to exclude him from the United Kingdom on conducive grounds was taken in the exercise of prerogative powers and is not an immigration decision for the purposes of Part V of the Nationality Immigration and Asylum Act 2002, the only means by which it can be challenged is by judicial review. Hence this claim, also brought in time.

The grounds of challenge

3. The Claimant's contentions have been refined in Miss Weston's skeleton argument and submissions into three:

(i) the statutory scheme impliedly excludes the exercise by the Defendant of the prerogative power to exclude an individual who has been deprived of British citizenship on conducive grounds

(ii) to permit the Claimant to conduct his appeal against the decision to deprive him of British citizenship, the Defendant must make arrangements for him to return to the United Kingdom to give instructions to his lawyers and to appear personally at the hearing of his appeal.

(iii) the decision to exclude the Claimant from the United Kingdom unlawfully discriminates against him, as a former British citizen.

4. The first two grounds of challenge raise serious issues which deserve to be ventilated in judicial review proceedings. I have given permission for them to be· advanced and have determined them substantively. The third contention is unarguable for two reasons: for a decision to be unlawfully discriminatory under Article 14 ECHR, it must discriminate between individuals on prohibited grounds in respect of the enjoyment of Convention rights. Neither citizenship, nor the right to re-enter the territory of a signatory state is a Convention right. Accordingly, Article 14 is inapplicable. Further, there is no discrimination between an individual who was never a British citizen who is abroad and an individual who was a British citizen and is abroad. In each case, neither has the right of appeal against a free-standing decision to exclude on conducive grounds. If the reasoning of SIAC in EV v SSHD SC/67/2008 is correct, both would have a right of appeal against a decision to refuse entry clearance under paragraph 320(6) of the Immigration Rules in which the underlying reason for exclusion could be reviewed. The Claimant is, accordingly, in precisely the same position as someone who never had British citizenship. The reason why he cannot challenge the Defendant's decision in an appeal against an immigration decision is simply that he has not applied for entry clearance. He is, however, at least, as well placed as the individual who never was a British citizen, because he has an express right of appeal on the merits of the decision to deprive him of citizenship under s2B of the Special Immigration Appeals Commission Act 1997. If his appeal succeeds, the Defendant's power to exclude him would fall away.

First issue

5. Because the Defendant certified that the decision to deprive the Claimant of British citizenship was taken wholly or partly in reliance on information which in her opinion should not be made public in the interests of national security and because its disclosure would be contrary to the public interest, the Claimant's right of appeal lay to SIAC, not the First Tier Tribunal. Nevertheless, s2B of the 1997 Act provides that s40A(3)(a) of the British Nationality Act 1981 shall have effect in relation to appeals under s2B. Section 40A(3) provides:

"The following provisions of the Nationality Immigration and

Asylum Act 2002 shall apply in relation to an appeal under this

section as they apply in relation to an appeal under section 82,

83 or 83A of that Act-

(a) section 87 (successful appeal: directions) (for which purpose a direction may in particular provide for an order under section 40 above to be treated as having had no effect)."

There is no provision for suspension of the deprivation decision or order, pending appeal. Under the pre-2004 scheme, there was such provision. S40A(6) provided that a deprivation order could not be made while an appeal against the decision to make the order was pending; but that provision was repealed by Schedule 2 to the Asylum and Immigration Act 2004. Until then, the Secretary of State had no power to exclude an individual who was the subject of a deprivation decision: until the order took effect, he remained a British citizen, who could not be excluded in the exercise of prerogative powers. The question for decision is whether, by removing that bar, Parliament authorised the exercise of the prerogative power to exclude before the right to appeal against the deprivation order had been exercised and/or ceased to be pending.

6. The short and sufficient answer is that, as a matter of language, that is precisely what Parliament has done. Section 40(2) of the 1981 Act permits the Defendant by order to deprive a person of citizenship status if satisfied that deprivation is conducive to the public good. Before doing so, she must give notice of her intention to do so and notify the person of his rights of appeal: s40(5). No provision is made for any minimum period between notice of the decision and the making of the order. The repeal of s40A(6) expressly removes the suspensive effect of giving notice of appeal in time. Instead, in the new s40A(3)(a) Parliament has provided for the existence of a discretion, exercisable by SIAC, to direct that the deprivation order is to be treated as having had no effect. There is no discretion as to the future (except, perhaps, in cases in which new facts justifying deprivation had occurred since the original order): the Defendant would have no option but to restore citizenship. The discretion to do so retrospectively is not academic: it might, for example, be exercised in a case in which a child had been born during the period of deprivation. Treating the order as having had no effect would automatically confer British citizenship on that child.
7. Miss Weston submits that the Parliamentary target was different. Paragraph 121 of the explanatory note to the 2004 Act explains that the amendment to the 1981 Act "has the effect that a deprivation order can be made before any appeal is heard, thereby allowing deprivation and deportation proceedings to take place concurrently". That is, no doubt, an intended - perhaps the primary - purpose of the amendment and repeal; but it is not, as a matter of language, inevitably the only consequence. Parliament can be taken to have enacted the changes in the knowledge that the Defendant retained the prerogative power to exclude on conducive grounds. Farrakhan v SSHD (2002) QB 1391 was decided only two years before. If the draftsmen had wished to exclude the use of the prerogative power to exclude on conducive grounds while an appeal against a deprivation order was pending, he could have done so by express words. In their absence, for Miss Weston's argument to succeed, the statutory language must, by necessary implication, have had the same effect. It plainly does not do so.

Second issue

8. I have had some difficulty in understanding the legal basis for the proposition advanced by Miss Weston that the Defendant must be compelled to permit and facilitate the return of the Claimant to the United Kingdom to conduct his appeal. Her general proposition is that "fairness" requires it. If the foundation is the common law, it is clearly shaped by the statutory scheme which, in the circumstances in which the Claimant finds himself, requires him to conduct his appeal from abroad unless, as a matter of administrative law, the Defendant can be required to exercise an executive power outside the Immigration Rules to permit and facilitate his return. Her alternative foundation is the law of the European Union. She relies on the judgment of the Grand Chamber of the Court of Justice of the European Union in Janko Rottmann v Freistaat Bayern Case C-135/08 2 March 2010. The decision itself is of no assistance to her. It was simply that it was not contrary to European Union law for a member state to withdraw from a citizen of the Union the nationality of that state acquired by naturalisation when that nationality was obtained by deception, on condition that the decision to withdraw observes the principle of proportionality. In the reasoning which led to that conclusion, it observed that the national rules concerning loss of nationality with the consequence that the individual ceased to be a member of the European Union must have regard to the law of the European Union, including the principle of proportionality. Subject to one proviso, that proposition is uncontroversial. The proviso is that when deprivation occurs because of a perceived threat to national security, European Union law may not be engaged at all, because national security is within the exclusive competence of Member States: see Article 4.2 of the Treaty on European Union and SIAC's reasoning and decision in Ml v SSHD SC/101/2010. (The issue is currently the subject of a reference to the Court of Justice in ZZ v SSHD [2011] EWCA Civ 440). It is, at least, highly doubtful that European Union law imposes any requirement on a Member State to permit an individual challenging the decision to be physically present in the Member State when his challenge is determined. Article 31.4 of the so called Citizens' Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 permits Member States to exclude the individual concerned (by definition a citizen of the European Union) from their territory pending the redress procedure; and to prevent him from submitting his defence in person when his appearance may cause "serious troubles to ... public security" or when the appeal concerns "a denial of entry to the territory". Although the Directive has no application in this Claimant's case, because he is not a citizen of the European Union, it is difficult to conceive that the general Articles of European Union law, such as Article 47 of the Charter of Fundamental Rights and Freedoms confer on him a right which specifically targeted legislation denies to a European Union citizen.
9. On that shaky foundation, Miss Weston submits that, on the facts, the Claimant will not have an adequate opportunity to present his appeal unless his return to the United Kingdom is facilitated. There is a good deal of evidence about this issue. The Defendant suggests that he can give instructions and evidence by Skype or television link, for which there are adequate facilities in Khartoum: see the letter from the British Embassy of 1 July 2011. The Claimant has obtained an opinion from an apparently well informed expert that to do so would put him at risk of becoming of adverse interest to the Sudanese security service, NISS, an occurrence which would put his safety at risk: see the reports of 21 May and 8 July 2011 of Peter Verney. Further, the Claimant's skilful and conscientious solicitors maintain that they cannot fulfil their professional duties to him adequately unless they are able to speak to him face to face and in confidence: see the witness statement of Smita Bajaria of 11 February 2011, prepared for the purposes of MK's appeal to the Court of Appeal, C4/2010/2146. It is neither possible nor necessary for me to resolve these differences. They can be circumvented if the Claimant can travel to a safe third country, in or from which he can give instructions and from which he can give evidence by television link - a means of giving evidence which is not significantly less satisfactory than giving evidence when physically present in Court, as I explained in paragraph 24 of my judgment in El v SSHD(2011) EWHC 1047 (Admin).
10. The live question is whether the Claimant can travel to a safe third country. For that, he will require a Sudanese identity document and passport. He already has a nationality certificate which his solicitors understand "absent other factors" entitles him to obtain a Sudanese passport: see their letter of 11 April 2011 to SIAC. Mr Verney states that his Sudanese sources confirm that it would not be possible "under normal circumstances" to obtain a Sudanese passport without showing that national service had been completed. The June 2003 issue of the Sudanese Human Rights Quarterly stated that persons who refused to enter national service "may also be prevented from obtaining official identity documents, such as travel documents, identity papers and drivers licenses": see paragraphs 13 and 16 of Mr Verney's letter of 8 July 2011. If there is a legal principle which requires that the Claimant can give evidence in a manner which permits SIAC to hear and 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 to be more likely than not that he can obtain a Sudanese passport, just as he has obtained a nationality certificate.
11. Further, he would, in any event, require a Sudanese passport lawfully to leave Sudan. His British passport has been withdrawn. "If, nevertheless, he would propose to depart Sudan by using it, he could also use it to visit a third country. Further, if he were to return to the United Kingdom, there is no guarantee - indeed, in my judgment, little likelihood - that he would return to Sudan if he were to lose his appeal. If he left without a Sudanese passport and, probably, exit visa, he would have no travel document which would secure his re-entry into Sudan. Emergency travel documents would have to be obtained from the Sudanese Embassy in London. If his concerns about NISS are justified, that would immediately alert the Sudanese authorities to the fact that he was unable to travel on his British passport. The most obvious of enquiries would reveal why - that it had been withdrawn on conducive grounds. It would then be open to him to claim that it would not be safe to return him to Sudan - a ground of challenge, which, given Sudan's notoriously poor human rights record, might well succeed. Accordingly, the step which the Claimant suggests is required of the Defendant 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 Defendant cannot be criticised for refusing to take a step which would, in all probability, have the effect of frustrating a decision which, if upheld on appeal, would have been lawfully and properly taken in the interests of national security.

Conclusion

12. For those reasons, this claim for judicial review is dismissed.