R3 v Secretary of State for the Home Department

Sections 1-4C of the BNA provide for various methods by which British citizenship can be acquired. Section 40(2) gives the Secretary of State power, by order, to deprive a person of his British citizenship if she is satisfied that deprivation is conducive to the public good. Section 40(3) gives the Secretary of State a similar power if the citizenship results from registration or naturalisation and she is satisfied that the registration or naturalisation was obtained by fraud, false representation or concealment of a material fact. She cannot make an order under section 40(2) if she is satisfied that the order would make the person stateless (section 40(4), subject to the exception stated in section 40(4A)). Before making such an order, the Secretary of State ‘must give the person written notice specifying’ three things, including his right of appeal against the Secretary of State’s decision to make an order.

There are two routes of appeal: section 40A of the BNA and section 2B of the Special Immigration Appeals Commission Act 1997 (‘the 1997 Act’). The normal route of appeal is to the First-tier Tribunal (‘F-tT’), under section 40A, unless the Secretary of State issues a certificate under section 40A(2) of the BNA, that, in short, the decision was taken wholly or partly on the basis of material which it would be contrary to the public interest to make public. In such a case, the appeal is to SIAC, under section 2B of the 1997 Act.

Section 5(1) of the 1997 Act gives the Lord Chancellor power to make rules which, among other things, govern the procedure for appeals to SIAC. The Rules are the result of the exercise of that power.

Rule 10 is headed ‘Further material in relation to an appeal’. It applies to appeals, and not to applications for a review (rule 10(1)). It governs the filing of evidence for an appeal, and exculpatory reviews by the Secretary of State. Rule 10A(5) enables the appellant and the Special Advocate to apply to SIAC for a direction requiring the Secretary of State to ‘file further information about [the appellant’s] case, or other information’. The applicant ‘must indicate why the information …is necessary for the determination of the appeal’ (rule 10A(6)). This echoes the language of rule 39(5)(c) (i), which was referred to by Supperstone J in decision 2 (see paragraph 33, above). SIAC may make such a direction if it considers that the information is ‘necessary for the determination of the appeal’ and ‘may be provided without disproportionate cost, time or effort’ (rule 10A(7)).

Rule 11 is headed ‘Variation of grounds of appeal…’. Subject to section 85(2) of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) (which concerns a statement of additional grounds made under section 120 of the 2002 Act), the appellant ‘may vary the grounds of appeal …only with the leave of [SIAC]’ (rule 11(1)). Rule 11(2) requires the appellant to file any ‘proposed variation of the grounds of appeal with [SIAC] and serve a copy on the Secretary of State’.

‘Striking out’ is the heading of rule 11B. Rule 11B(1) gives SIAC power to strike out ‘a notice of appeal’ or a reply by the Secretary of State ‘if it appears to [SIAC] that it discloses no reasonable grounds for bringing or defending the appeal…’, or to strike out a notice of appeal if it appears to SIAC to be an abuse of SIAC’s process.

A relies on the decision of SIAC in Shamima Begum v Secretary of State for the Home Department SC/174/2020, SIAC (Jay J, sitting alone). Jay J listed a case management and directions hearing at his instigation and at short notice (paragraph 1) in four deprivation appeals. Each appellant was being held in Al-Roj camp in north-east Syria. The appellants wanted a stay of those parts of their appeals which depended on their instructions to their lawyers, but wanted to pursue public law grounds of appeal which did not depend on those instructions.

The appellant applied to file nine replacement grounds of appeal after the decision of the Supreme Court on the Secretary of State’s appeals in her case. In paragraph 10 of his judgment, Jay J said,

Article 1 of the ECHR provides that contracting states must secure the listed rights and freedoms to persons ‘within its own jurisdiction’. Article 1 is not one of the Convention rights listed in Schedule 1 to the HRA.

In Al-Skeini v United Kingdom (2011) 53 EHRR 18, the ECtHR said, in paragraph 131, that a state’s jurisdictional competence under article 1 is primarily territorial. There is a presumption that it is exercised normally throughout the state’s territory. Acts of contracting states ‘performed in, or producing effects, outside their territory, can constitute an exercise of jurisdiction within the meaning of art. 1 only in exceptional cases’. Whether a case is exceptional is a question of fact (paragraph 132). When a state, through its agents, exercises control and authority over a person, ‘the state is under an obligation under art. 1 to secure to that [person] the rights and freedoms under s.1 of the Convention that are relevant to the situation of that individual’.

The applicants in IR v United Kingdom (Admissibility) (application no. 14876/12) (2014) 58 EHRR SE14 were nationals of Sri Lanka and Libya. The Secretary of State decided to exclude them from the United Kingdom on the grounds that their presence was not conducive to the public good. He cancelled the leave to remain of one applicant, and refused entry clearance to the other. They appealed to SIAC. They then complained to the ECtHR of breaches of article 8 and of article 6. The ECtHR declared their applications inadmissible. In paragraph 52, the ECtHR observed that the applicants were outside the jurisdiction of the United Kingdom when the Secretary of State made the relevant decisions. There might therefore be a question whether there was a sufficient jurisdictional link for the purposes of article 1 ‘notably by reason of UK law giving the applicants an “out-of-country” right of appeal…’. The ECtHR did not consider it necessary to ‘pursue this preliminary issue’ because of its conclusion that the applications were, in any event, inadmissible. I note that in the next case I consider, the ECtHR rejected the idea that an out-of-country appeal could be a basis for establishing jurisdiction (see paragraph 28 of Abdul Wahab Khan v United Kingdom (application no 11987/11), which I summarise in the following paragraphs).

The applicant Abdul Wahab Khan was a Pakistani national. He came to the United Kingdom in 2006 on a student visa. His leave to remain was extended until 31 December 2009. He was arrested on 8 April 2009 with four other Pakistani nationals on suspicion of conspiracy to carry out a mass-casualty attack. They were not charged but the Secretary of State decided to deport them all, and detained them under immigration powers. The applicant then left the United Kingdom voluntarily and the Secretary of State withdrew the decision to deport him. The Secretary of State later cancelled his leave to remain on the grounds that his presence in the United Kingdom was not conducive to the public good for reasons of national security. At a point which is not clear from the judgment of the ECtHR, the Secretary of State also made an exclusion order against the applicant, on national security grounds. The applicant argued that the existence of that order increased the risk to him in Pakistan.

The five men appealed to SIAC. SIAC found that one of the appellants was an AQ operative and that the applicant and the other appellants, except one, were committed Islamist extremists and knowing participants in a plan to carry out an attack. SIAC held that there was a real risk of ill treatment breaching article 3 if the two appellants who were still in the United Kingdom were returned to Pakistan. The applicant and another appellant asked SIAC to make a direction to facilitate the issue of entry clearance for their return to the United Kingdom, and, by implication, to allow their appeals against the cancellation of their leave to remain. SIAC rejected that argument, holding that the United Kingdom had no jurisdiction over Pakistani citizens in Pakistan. This Court dismissed the applicant’s applications for permission to appeal.

On his application to the ECtHR, the applicant argued that there is a difference in principle between a person who has never been in the jurisdiction and one who has left and has been refused re-entry. He relied on articles 2,3, 5 and 6. He also argued that he had built up a strong private life in the United Kingdom, so that his exclusion and the cancellation of his leave to remain were a breach of article 8. Finally, he made a claim under article 14.

The ECtHR said that whether articles 2, 3, 5 or 6 were ‘engaged’ depended on whether the applicant, who had returned voluntarily to Pakistan, was ‘within the jurisdiction’ of the United Kingdom for the purposes of article 1. There was nothing in the case law of the ECtHR which cast doubt on the conclusions of SIAC and of this Court that he was not (paragraph 24). The applicant had returned voluntarily to Pakistan. Neither of the two principal exceptions to territorial jurisdiction (state agent authority and control, or effective control over an area) applied. He did not complain about the conduct of diplomatic or consular agents in Pakistan. He was free to live there without any control by agents of the United Kingdom (paragraph 25). There was no reason in principle to distinguish between a person who leaves territory voluntarily, and a person who was never in the jurisdiction at all. There was no support in the case law for the proposition that a state’s obligations under article 3 required it to take article 3 into account when making adverse decisions against people who are not within its jurisdiction (paragraph 26).

There was support in the case law for the proposition that a state’s obligations under article 8 might, in some circumstances, require family members to be re-united with relations living in that state. That positive obligation rests ‘in large part’ on the fact that a member of the family is already in the contracting state and is being prevented from enjoying that family life because his relation has been denied entry. The transposition of that limited article 8 obligation to article 3 would ‘in effect, create an unlimited obligation…to allow entry to an individual who might be at real risk of ill-treatment contrary to Article 3, regardless of where in the world that individual might find himself’ (paragraph 27). Nor could jurisdiction be established on the basis of the appeal to SIAC. The fact that the applicant had exercised his right of appeal ‘had no direct bearing’ on the question whether his substantive complaints fell within the jurisdiction of the United Kingdom (paragraph 28). The complaints based on articles 2, 3, 5 and 6 were inadmissible (paragraph 29).

The ECtHR then considered the applicant’s complaints under articles 8 and 14. It held that they, too, were manifestly ill-founded and inadmissible. SIAC had found the allegations against him proved, so that, given his rather limited private life, the decision to exclude him was ‘clearly proportionate’. Any complaint that SIAC had failed to comply with the procedural component of article 8 was answered by the decision of the ECtHR in IR v United Kingdom (see paragraph 58, above). The complaint based on article 14 was without foundation, as the decision was taken solely on the basis of an assessment that the applicant was involved in Islamist extremist activity.

The applicant in K2 v United Kingdom (Admissibility) (42387/13) (2017) 64 EHRR SE18was a Sudanese national. In 2000, he became a British citizen by naturalisation. In 2009 he left the United Kingdom when he was on bail. The Secretary of State’s case was that he then went to Somalia and engaged in terrorism-related activity, before going to Sudan. The Secretary of State notified him of her intention to deprive him of his British nationality on the grounds that it would be conducive to the public good. She also made an order excluding him from the United Kingdom. He applied for judicial review of the second decision, and appealed to SIAC against the first. His application for judicial review failed, as did his appeal.

He complained to the ECtHR that the decisions were substantive and procedural breaches of article 8. The ECtHR summarised the effect of its earlier decisions on deprivation of citizenship: the arbitrary denial of citizenship might ‘in certain circumstances, raise an issue under art. 8 of the Convention because of its impact on the private life of the individual…’. The ECtHR would investigate two issues: whether the deprivation was arbitrary and its consequences for the applicant (paragraph 49). In deciding whether it was ‘arbitrary’, the ECtHR had taken into account whether the revocation was in accordance with the law, whether it was accompanied by the necessary procedural safeguards, including whether the applicant was given an opportunity to challenge the decision before courts affording the relevant guarantees, and whether the authorities acted diligently and swiftly (paragraph 50). The standard of ‘arbitrariness’ is ‘a stricter standard than proportionality’ (paragraph 61). It held that the challenges to both decisions were ‘manifestly ill-founded’ (paragraphs 64 and 67). It was prepared to accept ‘for the purposes of the present decision’ that the applicant’s exclusion from the United Kingdom interfered with his private and family life in the United Kingdom. The interference was limited and in the light of the findings about his terrorism-related activities, was not disproportionate to the legitimate aim pursued (paragraph 66). The ECtHR did not consider, or make any decision about, jurisdiction for the purposes of article 1.

Mr Southey referred to Usmanov v Russia (application no 439361/18) (2021) 72 EHRR 33. The ECtHR adopted an approach to deprivation of citizenship similar to that described in K2 (see the previous paragraph)(paragraphs 53-54). The applicant was in Russia at the relevant time. The ECtHR held that the annulment of the applicant’s citizenship and a decision to expel him from Russia both breached article 8.

Mr Southey relied in his written submissions on Johansen v Denmark (application no. 27801/19, 3 March 2022), in which the Second Section of the ECtHR declared the applicant’s application inadmissible. He was a dual Danish and Tunisian national, who was born and lived for most of his life in Denmark. He was in Denmark at the time of the hearing before the ECtHR. He was convicted of terrorist offences in Syria, sentenced to four years’ imprisonment, and deprived of his Danish nationality. The authorities made a decision to expel him from Denmark. He had a wife and child in Denmark. In paragraph 44, the ECtHR said that the right to citizenship is not guaranteed by the ECHR, although an ‘arbitrary denial of citizenship might in certain circumstances raise an issue under article 8’. The ECtHR described its usual approach in such cases in paragraph 45 (see paragraph 66, above). The applicant’s case, including on the impact of article 8, was carefully considered by the Danish Supreme Court. In those circumstances, the ECtHR held that it raised no issue under article 8.

In HF v France (application numbers 24384/19 and 44234/20; 14 September 2022, GC), the applicants were four parents who lived in France and were trying to secure the return of their daughters and grandchildren to France. Their daughters were French citizens. The daughters were detained by a non-state entity in camps in North East Syria. The daughters were not the applicants.

Article 3.2 of Protocol 4 to the ECHR (‘A3P4’) forbids deprivation of the right to enter the territory of which a person is a national. The applicants relied on article 3 of the ECHR and on A3P4. Article 8 was relied on in one application. It is not entirely clear from paragraph 3 whether the rights relied were those of the daughters or of the parents, but the reasoning in paragraph 150 suggests that the second interpretation is the right one. The ECtHR considered the standing of the applicants in paragraph 150. The French Government argued that the applicants did not have standing to bring claims relying on article 3 and article A3P4. The ECtHR held, in that context, that two of the four applicants had standing because they were victims of ‘the alleged violation of article 8’. None of the applicants were victims of the alleged violations of article 3 or of A3P4. In all the circumstances the ECtHR held that, exceptionally, all the applicants had standing to bring claims on behalf of their daughters (paragraph 152). There was no suggestion that the applications were based on an alleged violations of the article 8 rights of the daughters. The ECtHR was asked to give A3P4 a ‘dynamic interpretation’ so as to impose on France a positive obligation to secure the repatriation of the applicants’ daughters and grandchildren from Syria (paragraph 253). It rejected that argument (paragraph 259). It held that A3P4 can only impose positive obligations (such as an obligation to issue travel documents) in exceptional circumstances (paragraph 261). The ECtHR then asked whether the circumstances of the case were exceptional and whether the decision-making process of the domestic authorities had sufficient safeguards against arbitrariness (paragraph 263). It decided that the circumstances were exceptional (paragraphs 265-271), and that the absence of procedural safeguards (which could be limited: see paragraph 276) led to a breach of the procedural component of A3P4 (paragraphs 277-283). A finding of a violation was sufficient just satisfaction (paragraph 288).

In R (Al Skeini) v Secretary of State for the Home Department [2007] UKHL 26; [2008] 1 AC 153 the claimants, whose relations were killed or mistreated by members of the British armed forces in Iraq, applied for judicial review of a decision of the Secretary of State to refuse to order an independent inquiry into those matters. In one of the cases, the Secretary of State did not accept that the armed forces had killed the person in question. One person, Baha Mousa, was killed by British troops in a military detention unit. The claimants had to show that their claims fell within the scope of the ECHR. As I have already indicated, the ECtHR has decided that the jurisdiction referred to in article 1 is primarily territorial, but it has recognised exceptions to that rule. The claimants then had to show that the claims fell within the scope of the HRA. The Secretary of State contended that the HRA did not apply outside the territory of the United Kingdom. The majority of the Appellate Committee held that while legislation does not generally apply outside the territory of the United Kingdom, given its international context, the territorial scope of the HRA was to be interpreted as being co-extensive with the scope of article 1. Section 6 of the HRA therefore applied to a public authority acting not only in the United Kingdom but also within its article 1 jurisdiction outside its territory.

In S1 v Secretary of State for the Home Department this Court considered an appeal from SIAC, which had dismissed the appellants’ appeals against decisions of the Secretary of State dated 31 March 2011 to deprive them of their British citizenship. The appellants were a father and three of his sons. They were all outside the United Kingdom when the decisions were made, having moved to Pakistan in September 2009, as the Secretary of State knew. They were Pakistani nationals. SIAC had decided two preliminary issues against them; that the order depriving them of their nationality did not make them stateless, and that it was not obliged to decide the appeals in the appellants’ favour because they could not have a fair appeal from Pakistan.

Burnett LJ (as he then was), giving a judgment with which the other members of this Court agreed, listed the issues in paragraph 5. They included whether SIAC had erred in law in deciding that the appellants were outside the jurisdiction of the ECHR for the purposes of article 1, so that their arguments about potential breaches of articles 2 and 3 failed for want of jurisdiction, and whether the removal of their citizenship was compatible with article 8. The appellants argued on appeal that if the deprivation decisions gave rise to article 2 and article 3 risks, they were unlawful pursuant to section 6 of the HRA. They accepted that none of the exceptions described in Al-Skeini applied. They contended, nonetheless, that in international law a state has jurisdiction over its nationals for various purposes. The deprivation of nationality was a clear exercise of jurisdiction. That was sufficient for the purposes of article 1. The decision was made entirely in the United Kingdom and produced effects outside the United Kingdom. They relied on two cases, East African Asians (1981) 3 EHRR 76 and Genovese v Malta (2014) 58 EHRR 25 (paragraph 91).

Burnett LJ did not find the reasoning in either of those two cases illuminating (paragraphs 92, 93, 98 and 99). He said that the decision of the ECtHR in Khan (see paragraphs 59-64, above) provided ‘powerful support’ for SIAC’s conclusion that the appellants were not within the jurisdiction of the United Kingdom for the purposes of article 1 when the Secretary of State made the deprivation decisions. Khan’s claim was similar to the appellants’ claim. ‘The difference is of degree, not principle’ (paragraph 95). He quoted paragraph 27 of Khan (see paragraph 63, above) in paragraph 97.

In paragraph 110, Burnett LJ quoted paragraph 23 of R (Sandiford) Secretary of State for the Foreign and Commonwealth Affairs [2014] UKSC 44; [2014]1 WLR 2697; ‘However, there is no general Convention principle that the United Kingdom should take steps within the jurisdiction to avoid exposing persons, even United Kingdom citizens, to injury to rights which they would have if the Convention applied abroad.’

The authority which states have over their nationals for the purposes of international law is different from authority or control for the purposes of article 1. The appellants’ argument confused those two concepts (paragraph 101). A decision to deprive a person of his nationality was ‘the antithesis of the exercise of control necessary to found jurisdiction under art. 1’. He considered that the decisions of the ECtHR and of domestic courts supported SIAC’s conclusion about jurisdiction.

In paragraph 108, he noted that there was no separate argument about whether two members of the appellants’ family, who were still British citizens, and were also then in Pakistan, were within the jurisdiction for the purposes of article 8. They could return to the United Kingdom. SIAC had concluded that their article 8 rights ‘if engaged’ could not help in the appeals. There could be little doubt that if they had stayed in the United Kingdom, or returned, article 8 would not support a finding that S1 should be admitted to the United Kingdom ‘in the face of the finding that his presence here constituted a danger to national security’.

The appellant in Abbas v Secretary of State for the Home Department [2017] EWCA Civ 1393; [2018] 1 WLR 533 was a Pakistani national who lived in Pakistan. He applied for a visa to enable him, his wife and children to visit his elderly relations. The Entry Clearance Officer refused the application on the ground, among others, that he was not satisfied that the appellant would leave the United Kingdom at the end of his proposed visit. He appealed to the F-tT on the grounds that the decision was a disproportionate interference with his right to develop his private life. The F-tT allowed his appeal and the Upper Tribunal dismissed the appeal of the Secretary of State. This Court allowed the Secretary of State’s further appeal. The Secretary of State was represented but the respondent took no part in the appeal. This Court held that article 8 did not impose a positive obligation on the United Kingdom to admit a person who was outside the United Kingdom for the purpose of developing his private life. Burnett LJ explained in paragraphs 14-22 why the appellant could not rely on the private life aspect of article 8 in order to impose a positive obligation on the United Kingdom to admit him and his family. He referred to Khan (see paragraphs 59-64, above). No Strasbourg case supported the position taken by the UT. He explained, in paragraphs 19-20 why, unlike private life, family life is unitary, by reference to Beoku-Betts v Secretary of State for the Home Department [2009] AC 115.

In paragraphs 23-25, Burnett LJ briefly considered jurisdiction. He accepted the Secretary of State’s submission that the appellant and his immediate family were not within the jurisdiction for the purposes of article 1. Jurisdiction is primarily territorial and none of the exceptions described by the ECtHR applied. In article 8 cases involving family life, even though the member of the family who is seeking to enter the United Kingdom is outside the United Kingdom, ‘members of the family whose rights are affected are undoubtedly within it. That provides the jurisdictional peg’ (paragraph 25).

In Aziz v Secretary of State for the Home Department [2018] EWCA Civ 1884; [2019] 1 WLR 266, the appellants were British citizens by naturalisation and Pakistani nationals. They were convicted of grooming and sexually exploiting girls who were in their early teens. The Secretary of State gave them notice of decisions to deprive them of their nationality on the grounds that deprivation was conducive to the public good. The appellants all had children. In each notice the Secretary of State referred to the appellant’s children and said that the public interest in deprivation outweighed any effect on the children’s article 8 rights.

The appellants appealed to the F-tT. The F-tT dismissed their appeals, as did the UT. On their appeal to this Court, the Secretary of State was represented, but the appellants were not. Sales LJ (as he then was), giving a judgment with which the other members of this Court agreed, held that on an appeal under section 40A of the BNA, a court was only required to assess the foreseeable consequences of deprivation to the extent necessary to see whether a deprivation order would be lawful and compatible with Convention rights. That would depend on the reasons for the Secretary of State’s decision (paragraph 26). If the Secretary of State had decided that deprivation was conducive to the public good because the appellants should not be allowed to enjoy the benefits of citizenship, a court was not required to speculate about whether the appellant was likely to be deported later, as his rights would be fully protected at that stage by the procedures which the Secretary of State would then be obliged to follow. It would not be possible, at that later stage, for a deportation order to be made which breached the appellant’s Convention rights. On the facts, the Secretary of State and the tribunals had been entitled to find that deprivation orders would not, of themselves, breach anyone’s article 8 rights (paragraphs 27 and 28).

The applicants were stopped and searched by the police under the Terrorism Act 2000 (‘the 2000 Act’). Section 44 of the 2000 Act gave a senior police officer power, if he considered it ‘expedient for the prevention of acts of terrorism’ to authorise any uniformed officer to stop anyone in a defined area and search them for articles ‘of a kind which could be used in connection with terrorism’. People were searched in public. A failure to submit to a search was a criminal offence. An authorisation had to be confirmed by the Secretary of State within 48 hours. After the 2000 Act came into force in 2001, a series of continuous authorisations was made up to the date of the hearing in Strasbourg in 2010 (paragraph 34). Those authorisations covered the whole of the Metropolitan Police district and each lasted for the maximum time permissible. The applicants’ applications for judicial review, and appeals to this Court and to the House of Lords were dismissed, among other reasons, because the two statutory discretions were very wide. Claims for damages against the police in the county court were also dismissed.

The applicants claimed that their rights under articles 5, 8, 10 and 11 had been breached. The ECtHR did not find it necessary to decide the article 5, 10, or 11 claims. The power to require a person to submit to a search was an interference with his right to respect for his private life. The ECtHR held that several features of the legal regime meant that those interferences were not ‘in accordance with the law’ for the purposes of article 8.

The ECtHR described the statutory scheme in paragraphs 28-34. There was a three-stage procedure: authorisation, confirmation and the exercise, by a police constable, of the power to stop and search. The exercise of that power was not subject to a requirement of reasonable suspicion. A constable could only require a person to remove his headgear, footwear, outer coat, jacket and gloves. In paragraphs 35-36, it described the code of practice which applied to the exercise of all statutory powers of stop and search. Part of the code dealt with searches under the 2000 Act. Among other things, it required a constable to take reasonable steps to tell the person concerned about the legal basis of the search and his right to ask for a copy of the record of the search.

In paragraph 76, the ECtHR said that in order to be ‘in accordance with the law’ a measure has to have ‘some basis in domestic law, and to be compatible with the rule of law’. The law must be ‘adequately accessible, and foreseeable, that is, formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct’.

Domestic law must therefore ‘afford a measure of protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights, it would be contrary to the rule of law, one of the basic principles of a democratic society, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion …and the manner of its exercise. The level of precision required of domestic legislation - which cannot in any case provide for every eventuality - depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed’ (paragraph 77).

The applicants complained that the provisions conferred an unduly wide discretion on the police at the first and third stages. The ECtHR disagreed with the view of the House of Lords that there were enough safeguards (paragraph 79). The discretion conferred by the word ‘expedient’ was too wide, and not governed by a criterion of necessity or of proportionality. If the Secretary of State confirmed the authorisation, he could not change the area of the authorisation, only its period. In practice he had never done so. The availability of judicial review was not an adequate protection because the powers were so wide (paragraph 80). The temporal and geographical limits provided by Parliament had not, in practice, acted as any real check, at least in London (paragraph 81). The independent reviewer could only report on the statistics about the use of the power (paragraph 82). The wide power conferred on constables was also a concern. The code gave guidance about how to stop and search but did not constrain the exercise of that wide power. It ‘radically …depart[ed] from our traditional understanding of the limits of police power’ (per Lord Brown in the House of Lords) (paragraph 83).

In paragraph 84 the ECtHR said that it was ‘struck’ by the statistical and other evidence about the use of the powers in practice. The power had been used frequently when there was no terrorism-related offence, and in cases where there was ‘not the slightest possibility’ that such an offence had been committed. The ECtHR considered that there was ‘a clear risk of arbitrariness in the grant of such a broad discretion to the police officer’. The judgments in the House of Lords showed the risks that the power could be used in a racially discriminatory way, including by stopping and searching white people to produce greater racial balance in the statistics. The power could also be misused against demonstrators (paragraph 85).

The current applications showed the limitations of judicial review as a safeguard. The power given to constables was so wide that it would be ‘difficult if not impossible’ to show that the power had been exercised improperly (paragraph 87). The powers were not ‘sufficiently circumscribed nor subject to adequate legal safeguards against abuse’. They were not, therefore, in accordance with the law.

In MS (India) this Court considered three appeals about the Secretary of State’s policy for granting restricted leave to applicants whose asylum claims had been refused, but whose removal from the United Kingdom was prevented by article 3. The claimants argued that the policy infringed the article 8 rights of those who were subject to it and that the policy was not ‘in accordance with the law’ for the purposes of article 8 because it did not define the scope of the conditions which it permitted the Secretary of State to impose, that it was too broad, and that its application was not limited in detail. They gave examples of arbitrary and unreasonable ways in which the policy could be applied. They also argued that there were no proper procedural safeguards.

In paragraph 104, this Court quoted paragraphs 76 and 77 of Gillan. Underhill LJ, giving a judgment with which Simon and Gloster LJJ agreed, said the last sentence of paragraph 77 was important. The more intrusive the power, the more the law would require the discretion to be specifically defined. ‘The present case is not like that’. The conditions at issue in MS might interfere with the exercise of private and family life, but they were not as intrusive as telephone tapping, stop and search, or deportation. If the power was in fact exercised arbitrarily, judicial review was available. A policy is not ‘not in accordance with the law’ merely because it can be applied unreasonably. There was nothing in the policy which was ‘inherently contrary to the rule of law’.

Mr Southey tacitly acknowledged in his submissions that there was no case in which the ECtHR had held that article 8 applied when the Secretary of State made a decision to deprive of his nationality a person who was outside the United Kingdom having left the United Kingdom voluntarily, and who was not applying for entry clearance for the purposes of family reunion. I describe his position in that way because he was driven to rely on HF v France to support his argument on jurisdiction. Mr Southey referred to a few sentences of the ECtHR’s reasoning in that case which, he said, showed that article 8 applied in principle, even though, as I think he accepted, the ECtHR was not invited to find that there had been any interference with the daughters’ article 8 rights (see further, paragraph 70, above).

To be fair to Mr Southey, he also summarised his article 8 case in a supplementary skeleton argument dated 16 November 2022. HF, he submitted, shows that the ‘territorial reach of the Convention has been found to be highly fact-sensitive’. His ‘primary case’ is that ‘Article 8 is clearly engaged … via the ‘jurisdictional peg’ of having family members in the UK’. His secondary case, based on HF, is that article 8 is also ‘engaged’ because of A’s ties to the United Kingdom; his former citizenship, the fact that he was deprived of his citizenship to stop him returning to the United Kingdom, that ‘an absence of jurisdiction would prevent such individual being protected from arbitrary interference with article 8 rights’, and the fact that British citizens, A’s children, and in particular, his daughter who is in Turkey, are adversely affected by the Decision. She cannot enter the United Kingdom with either of her parents.

In a further supplementary skeleton argument dated 22 December 2022, Mr Southey relied on Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591 and R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 63. Pham is said to show that the right to enter the United Kingdom is an attribute of citizenship, with the result that a deprivation of citizenship results in border control. That is said to be relevant to HF. RJM is said to show that ‘Court of Appeal case law can be departed from in light of case law of’ the ECtHR.

Mr Dunlop relied on the reasoning about article 1 in HF (paragraphs 184-211). He also relied on the conclusions of the ECtHR that the applicants’ daughters and grandchildren were not within the jurisdiction for the purposes of article 3, and were only in the jurisdiction for the purposes of A3P4. He pointed out that A3P4 is not a provision which is in Schedule 1 to the HRA.

He made four further points.

Mr Southey made four broad points about decision 2.

Mr Dunlop submitted that the directions had to be read against the power conferred by rule 11. It was inconceivable, in the light of the terms of rule 11, that SIAC intended, by the directions, to give A ‘carte blanche’ to vary his grounds of appeal without having seen, or approved, a draft of those grounds of appeal.

He argued that the power conferred by rule 11 is expressed in broad terms. By analogy with the CPR, which make the merits of a proposed amendment relevant to the exercise of the power to amend, SIAC must be entitled, in an appropriate case, to take the merits of a new ground into account. Mr Southey’s concession that SIAC could refuse permission to amend on case management grounds undermined his attack on SIAC’s approach in this case, as a consideration of the merits of a proposed amendment is part of case management. It is not efficient case management to allow an amendment which will waste the court’s time, and will cost the parties time effort and money to pursue. Both parties were publicly funded.

He submitted that Jay J’s compressed reasoning in paragraph 10 of Shamima Begum should not be understood as a statement that the merits of a proposed amendment were never relevant to the exercise of the power conferred by rule 11. If, however, that was what Jay J had meant, he was wrong. It was difficult to understand, how, in principle, the existence of a power to strike out a ‘notice of appeal’ on the grounds that it disclosed no reasonable grounds could control the exercise of a broad power to vary ‘grounds of appeal’.

Finally, he submitted that Supperstone J was right, for the reasons he gave, both to hold that the Gillan ground had no reasonable prospects of success, and to refuse the application for further information. He pointed out that it was clear from Supperstone J’s reasons that he would have refused this disclosure whether or not he had granted the application to amend.

There are four broad issues.

Al-Skeini decides that, even though article 1 of the ECHR is not in Schedule 1 to the HRA, domestic courts must apply decisions of the ECtHR when considering whether or not a person is within the jurisdiction for the purposes of the HRA. We were referred to no decision of the ECtHR which concerns a person deprived of his British nationality who was outside the United Kingdom, having left voluntarily, who was a dual national, and who was living in a family unit outside the United Kingdom when the deprivation decision was made. The closest decision factually is the admissibility decision in K2, but there is no reasoning about jurisdiction in that case. There is, therefore, no decision of the ECtHR which binds this Court to decide that A was within the jurisdiction for the purposes of article 1 when the Decision was made, so that he could rely on article 8 in his appeal against it.

I agree with Burnett LJ’s view in S1 that, although Khan was a different case (not least because the applicant was not a former British citizen, and was not challenging a decision to deprive him of his nationality), the reasoning of the ECtHR in that case, which relies on the principles which the ECtHR has developed in considering article 1, supports a conclusion that both S1 and A were outside the jurisdiction at the relevant time.

The closest domestic decision, factually, is S1. S1’s claim was based on article 3, not on article 8, but there is no basis in principle for supposing that this Court’s reasoning in paragraphs 88-102 would have been any different if S1’s complaint had been based on article 8, rather than on article 3. I consider that this Court is bound to hold, or, if not bound, that there is strongly persuasive authority, that A was not within the jurisdiction for the purposes of article 1 when the Decision was made, so that he could not rely on article 8 in his appeal against it.

I accept Mr Dunlop’s submission, based on Aziz (see paragraphs 80-81 above) that A’s relationship with W1 and his four children in the United Kingdom is not relevant to this analysis. It might become relevant in the future, but would only become relevant if A were to apply for entry clearance to visit, or to be reunited, with them. It did not, when the Decision was made, provide ‘the jurisdictional peg’ described in Abbas by Burnett LJ in remarks which were not necessary to his decision in that case(see paragraphs 78-79, above), but which were nevertheless relied on by Mr Southey. I consider, in paragraph 108 below, the links with the United Kingdom on which A relied. If they are material to this issue, they do not support the argument that article 8 was breached.

The starting point is that, even in cases like Johansen and Usmanov, in which the applicant was unarguably within the jurisdiction of the contracting state for the purposes of article 1, the ECtHR has been clear that there is no Convention right to citizenship. Its review of the compatibility of a deprivation of citizenship with the ECHR (and, specifically, with article 8) has been limited to the impact of deprivation on the applicant’s private life, and to two inquiries only. It has asked only, first, whether the decision was arbitrary, which it has said is a stricter standard than that of proportionality, and second, what consequences the deprivation has had for the applicant. It is therefore clear that even if an applicant is within the jurisdiction, the scope of article 8 in a deprivation case is limited, and does not include the questions which an article 8 review usually entails. For the reasons I give below, in relation to the Gillan ground (see paragraph 123, below), the relevant provisions have the necessary quality of law, and safeguards against arbitrariness. The effects on A of the Decision were limited, as he had voluntarily left, both the United Kingdom, and his family here. He did not wish then to return to the United Kingdom. He was not stateless. If, contrary to SIAC’s clear finding, article 8 did apply when the Decision was made, the Secretary of State did not, by making the decision, breach article 8.

With the exception of A’s former citizenship of the United Kingdom, the ‘links’ with the United Kingdom on which he relies, are, on analysis, not links at all, are tenuous, or are based on arguments which are circular. They are to be set against his links with Turkey when the Decision was made, and with his citizenship of Pakistan. In any event, such links, if established, are only relevant to the analysis in HF v France, on which A relies. In that case, the applicants did not rely on article 8 (except to the limited extent explained in paragraph 70, above), the ECtHR dismissed the claim based on article 3, and based its positive decision solely on A3P4. As Mr Dunlop pointed out, A3P4 is not in Schedule 1 to the HRA. The ECtHR did not refer to article 8, except to the limited extent referred to in paragraph 70, above. HF does not support an argument based on article 8. The Decision does produce effects on A’s private life (which is a different inquiry), but they are slight when compared with the effects of deprivation in Usmanov.

For completeness, I should consider A’s second supplementary skeleton argument. Neither Pham nor RJM helps A. Pham was an appeal against a decision of SIAC on a preliminary issue (whether the order in that case made the appellant stateless). The broad statements of the Supreme Court about citizenship, EU law and proportionality are all obiter. In any event, Mr Southey does not need the authority of the Supreme Court to make good the proposition that if a person is deprived of his citizenship, he will no longer be able freely to enter the territory of his former nationality. But the HRA does not in terms provide any protection for such a right. Mr Southey is right that in RJM the Appellate Committee indicated that it is was open to this Court not to follow one of its binding decisions if it inconsistent with a later decision of the ECtHR. He did not, however, as I understood them, explain in his submissions how any relevant decision of this Court was inconsistent with a later decision of the ECtHR. If his implied target was S1, it is not, to my mind, inconsistent with any later decision of the ECtHR to which A referred.

A’s new ground of appeal, challenging SIAC’s finding (in paragraph 121 of decision 3) that article 8 did not apply to A when the Decision was made is arguable. It is also an intrinsically important point, so there is, in any event, a compelling reason for giving permission to appeal. I would therefore give permission to appeal for this ground. I would, however, dismiss this new ground of appeal on the merits, for the reasons I have just given. In short, A was not within the jurisdiction for the purposes of article 1 when the Decision was made, but, if contrary to that view, he was, the Decision did not breach article 8 on the facts.

Despite my conclusion on the first issue, I go on to consider the second issue which I described in paragraph 102, above. There are four sub-issues.

I accept Mr Dunlop’s submission that rule 11 is an aid to the construction of the directions. There are three points about rule 11.

I consider, against that background, that it is implausible that SIAC thought that the directions, without more, gave A a general permission to amend his grounds of appeal. That is not, in any event, the question. The question is what an objective reader of the directions, with knowledge of the procedural background, would think that the directions meant. Such a reader would conclude that the directions were a timetable, not a general permission to vary the grounds of appeal. An objective reader would take into account that a general permission of the kind advocated by A would (a) prevent SIAC from making the judicial decision which rule 11(1) requires it to make, having considered the terms of the proposed amendment, and (b) deprive the Secretary of State of the procedural protection conferred by rule 11(2). Mr Southey’s arguments do not touch these points. Finally, and this is a small point, A does not seem to have interpreted the directions in that way, because he later applied, with a proposed draft, for permission to amend his grounds of appeal.

Mr Southey’s argument that SIAC can only refuse permission to amend on case management grounds does not help him, for the reasons given by Mr Dunlop. It is not efficient case management to allow an amendment if that will waste time, effort and money on a hopeless argument. The power conferred by rule 10(1) is, on its face, a wide power. The power is not completely unfettered, as it must be exercised judicially, and on the basis of relevant considerations. There is nothing in the language of rule 10(1), however, which prevents SIAC, in an appropriate case, taking into account the merits of a proposed amendment when exercising that power.

I do not know whether Shamima Begum was a case in which, on its facts, it was, for some reason, inappropriate for SIAC to take into account the merits of the proposed amendments when deciding whether or not to permit them. It is not clear to me that that was SIAC’s reason for allowing the proposed amendments. Paragraph 10 of the judgment is difficult to follow. Mr Southey submits that SIAC held that it was never appropriate to consider the merits of a variation on an application to vary, whereas Mr Dunlop’s primary submission was that SIAC only decided that it was not appropriate to do so on the facts.

The power to strike out a notice of appeal on the grounds that it discloses no reasonable grounds for bringing the appeal conferred by rule 11B is not an obvious aid to the construction of rule 11. The subject matter of the two rules is different. Rule 11 governs a proposed variation of existing grounds of appeal, and rule 11B, the striking out of a notice of appeal, that is, of the whole appeal.

Jay J might have been saying that the only way in which SIAC could consider the merits of a proposed variation was if the Secretary of State applied to strike out the notice of appeal under rule 11B. I doubt that that was what he was saying but, if it was, it was wrong for three reasons.

First, it would be an inefficient way of managing the case. The parties were all at a hearing. The appellant had applied for permission to vary her grounds of appeal, and the Secretary of State, as she was entitled to, was at the hearing, ready to oppose that application. The Secretary of State was not applying to strike out the notice of appeal; what was at issue was a proposed variation to the grounds of appeal. If this was Jay J’s reasoning, its effect is that SIAC would give permission to vary the grounds of appeal without considering the merits of the variation, and then require the Secretary of State to make a further application to have the variation struck out on its merits, which SIAC would have to consider separately. A construction of the Rules which produces such a cumbersome result, especially when it is not required by the express words of the Rules, is an unlikely construction.

Second, an implication of this reasoning is that the Secretary of State had to give notice to A of her grounds for opposing the application to vary. I can see no basis for that implication in rule 11.

Third, as I have said, rules 11 and 11B have different subjects. There is a significant difference in language between them. Rule 11B does not give SIAC power to strike out a ‘ground of appeal’, but to strike out ‘the notice of appeal’, that, is the whole appeal. That difference in language in adjacent rules is not likely to be accidental, and should be given effect. If the Secretary of State followed the logic of paragraph 10, the merits of the variation could not be considered on the application to vary, with the result that the variation would be allowed. The merits could only be considered at a strike-out application, but SIAC would not have power to strike out the varied ground of appeal, as rule 11B only enables it to strike out the whole appeal. The Secretary of State had never suggested that the whole appeal should be struck out.

If SIAC was deciding in paragraph 10 of Shamima Begum that it could not, in principle, take into account the merits of a proposed amendment in exercising the power conferred by rule 11(1), it erred in law. By contrast, Supperstone J did not err in law in decision 2 in taking into account, in this case, the merits of the proposed variation of the grounds of appeal.

The starting point is that the ‘right to citizenship’ is not a right protected by the ECHR. I do not consider that ‘the right to citizenship’ is a ‘fundamental right’ of the kind which the ECtHR had in mind in paragraph 77 of Gillan, because it is not, in language of that paragraph ‘a right safeguarded by the Convention’. The ECtHR has held that its supervision of the exercise of a power to deprive a person of his citizenship is limited (see, in particular, paragraph 66, above).

Gillan was a totally different case from this case. The real vice of the statutory provisions was that they conferred two apparently unconstrained powers; the power of authorisation, given to a senior police officer if he considered it ‘expedient for the prevention of acts of terrorism’ and the power enabling constables to stop and search people when they did not have any reasonable suspicion of the commission of an offence. The code of practice did not relevantly define or constrain either power. It was the breadth of those powers which meant that judicial review could not be an adequate safeguard. By contrast, in this case, the Secretary of State has power to deprive a person of his citizenship if she considers deprivation would be conducive to the public good. There are many authorities at the highest level about the meaning of that phrase, and I accept Mr Dunlop’s submission that the relevant guidance adequately explains how the power may be exercised. It is fanciful to suggest that A could, when, as SIAC held he did, he engaged in terrorism-related activity in Syria, have been in any doubt that the Secretary of State might decide to deprive him of his British citizenship if she found out about that activity. A had a right of appeal to SIAC, which he exercised. The ECtHR has, in several cases, held that a right of appeal to SIAC is a sufficient safeguard against the relevant risk of arbitrariness. The statutory framework and guidance have the quality of law, there are sufficient safeguards against arbitrariness, and the exercise of the power was, in the circumstances, foreseeable. The power was not exercised, as A’s submissions at times suggested, on the grounds that he merely travelled to Syria.

It follows that Supperstone J did not err in law in deciding that the Gillan ground had no reasonable prospects of success, and in refusing A permission to vary his grounds of appeal for that reason.

I accept Mr Dunlop’s submission that it is clear from Supperstone J’s express reasons that he would not have ordered the disclosure A asked for even if he had permitted the variation (see paragraph 33, above). Supperstone J’s assessments were that the value of the information would be ‘minimal’ to the Gillan ground, that the information could not help SIAC to decide whether or not the power to deprive had been exercised arbitrarily, and that it would take disproportionate time, cost and effort to provide the information. Those assessments related to the efficient management of the appeal. They were rational, were open to him on the terms of the relevant provisions of the Rules, and are assessments with which a court on an appeal on a point of law should not readily interfere. There is no basis for this Court to interfere with them on this appeal.

If SIAC erred in law in decision 3 in holding that article 8 did not apply, any such error was immaterial, because, for the reasons I have given, a claim based on article 8 would have failed. It is significant that, despite having found that article 8 did not apply, SIAC, having fully reviewed the OPEN and CLOSED evidence, went further than it was required to, and found, in any event, that in the light of A’s terrorism-related activity, the Decision was proportionate, having considered its effect on him and on his family.

If SIAC erred in law in decision 2 in refusing permission to A to vary his grounds of appeal, that error was not material, for two reasons. First, SIAC would not, in any event, have ordered the disclosure sought, for reasons which, I have held, are not wrong in law. Second, the Gillan argument would have failed.

For those reasons, I have reached three conclusions.