U3 v Secretary of State for the Home Department

JUSTICE has been granted permission to intervene in the Court of Appeal case: U3 v Secretary of State for the Home Department. The case concerns the deprivation of UK citizenship of a woman – U3 – and refusal to allow her to re-enter the country, both for reasons of national security. U3 appealed both decisions at first instance, with evidence of her being a victim of domestic abuse including coercive and controlling behaviour. JUSTICE’s intervention focuses on the deprivation of citizenship appeal.

Appeals against such national security decisions lie to the Special Immigration Appeals Commission (“SIAC”) and were subject to substantial consideration by the Supreme Court in R (Begum) v SSHD [2021] UKSC 7 (in which JUSTICE also intervened). The question on which JUSTICE is intervening in this case relates to the approach that should be taken by SIAC in deprivation of citizenship appeals, following Begum. At first instance in U3, SIAC found its jurisdiction was limited to public law grounds, akin to a judicial review.

JUSTICE’s intervention focuses on those appellants who have had no opportunity to put across their version of events before the original decision is made, as is often the case in national security cases and indeed was the case for U3. The opportunity to be heard is a fundamental principle of natural justice, and one which JUSTICE argues must be protected in SIAC appeals. To do so requires SIAC to provide an individual with a meaningful opportunity to rebut the national security case against them. JUSTICE argues that a jurisdiction limited to public law grounds only would not provide a sufficient opportunity for appellants to do this.

Instead, JUSTICE argues that SIAC can consider new evidence, which was not before the original decision maker, and make findings of fact on the basis of such evidence. JUSTICE argues that an appeal should be allowed where SIAC concludes that (a) the deprivation decision is materially premised on an error of fact; or (b) the SSHD’s conclusion that the person is a risk to national security was not reasonably open to the SSHD on the facts as SIAC has found them. These grounds do not mean SIAC is replacing the Secretary of State’s decision on national security, but they go wider than judicial review grounds.

In making its submissions, JUSTICE analyses the limits of traditional public law grounds as well the historical statutory context of the right of appeal to SIAC.

Fiona Rutherford, Chief Executive of JUSTICE, said:

Deprivation of citizenship is one of the most draconian decisions a state can make about an individual, especially when a decision is made without hearing from the individual themselves. That individual’s right of appeal is vital, and Parliament secured it in statute. It must not be reinterpreted to deprive that individual of a meaningful opportunity to challenge the decision against them. JUSTICE is intervening in this case to provide the court with perspective of why the right of appeal was introduced in the first place – to bridge an inadequate lack of redress in these cases – and to highlight the principles of natural justice which should determine how they are conducted in the future.”

JUSTICE is an experienced third party intervener with extensive expertise in intervening in cases involving important matters of public interest, especially those concerning the protection of fundamental rights. It has intervened in cases on matters of public importance, including before the Court of Appeal, the House of Lords, the UK Supreme Court, and the European Court of Human Rights. Notably, JUSTICE has long and significant experience in intervening in cases concerning the principle of natural justice in the national security context, including:

  1. Chahal v UK (1996) App no. 22414/93, which led to the establishment of SIAC by Parliament in 1997
  2. Secretary of State for the Home Department v MB [2007] QB 415 (Court of Appeal) and [2008] 1 AC 440 (House of Lords), concerning the natural justice rights of persons subject to control orders pursuant to Article 6 of the European Convention on Human Rights (ECHR).
  3. A and Others v the United Kingdom (2009) App no. 3455/05, concerning the compatibility of the SIAC special advocate procedure with Articles 5(4) and 6 of the ECHR.AF and others v Secretary of State for the Home Department [2009] UKHL 28, concerning whether persons subject to control orders were entitled to know the substance of the case made against them.A v B (Investigatory Powers Tribunal) [2010] 2 AC 1, considering the scope of the jurisdiction of the Investigatory Powers Tribunal.
  4. Secretary of State for the Home Department v Assistant Deputy Coroner for Inner West London [2010] EWHC 3098, judicial review proceedings regarding whether a coroner has power to exclude properly interested persons from hearings at which sensitive evidence relating to the Security Service would be received.Al-Rawi v The Security Service [2010] EWCA Civ 482 (Court of Appeal) and [2011] UKSC 34, (Supreme Court), [2012] 1 AC 531, concerning the absence of power in ordinary civil litigation to hold closed material procedures without statutory authority.
  5. R (Begum) v Secretary of State for the Home Department [2021] UKSC 7, [2021] AC 765, concerning the common law protections on citizenship.

JUSTICE is represented pro bono by Christopher Pugh, Guy MacInnes-Manby, Tamara Ostrowiecki and Grace Smithson (Freshfields Bruckhaus Deringer LLP), and Tom Hickman KC, George Molyneaux and Rayan Fakhoury (Blackstone Chambers).

Read our submissions here.