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SIAC Can Make Findings in Deprivation Appeals

In U3 v Secretary of State for the Home Department & Anor [2023] EWCA Civ 811, the Court of Appeal resolved the purported conundrum formed by the notion that, whilst deprivation appeals (before SIAC) are governed by administrative law principles, they also involve the consideration of evidence that was not before the decision-maker at the time of the decision. It was confirmed that, if it considers that it can and that they are appropriate, SIAC may make findings of fact in deprivation appeals.

The Deprivation Appeals Conundrum

The “conundrum” was referred to in paragraph 52 of SIAC’s decision in Shamima Begum and Home Secretary SC/163/2019 (explained in this article ), where the Chairman of SIAC, Jay J, stated:

“Thirdly, the Special Advocates in particular have been troubled by what they believe to be the conundrum or paradox created by the idea that, putting to one side human rights considerations for one moment, the appeal under section 2B is governed in the main by administrative law principles. The Special Advocates’ concern is that, on the one hand, the decision under challenge is that of the Secretary of State and its lawfulness must therefore be judged at the time it was made, and on the other hand the Commission has always accepted written and oral evidence which was not before the decision-maker at the material time. That antinomy will, we hope, be resolved finally by the Court of Appeal’s judgment in the appeal of U3 , although that will come too late to justify holding back the Commission’s judgment in the present case.”

Resolving the Deprivation Appeals Conundrum: Insights from U3 v Secretary of State [2023] EWCA Civ 811

The first matter the Court of Appeal considered was whether the Supreme Court’s account of SIAC’s functions in a deprivation appeal, set out in R (on the application of) Begum v SIAC & Anor [2021] UKSC 7 (explained in this article), was ratio or obiter. The Court of Appeal held that it was ratio: the Supreme Court set out the general nature and limits of a deprivation appeal before SIAC in order to demonstrate that the Court of Appeal’s approach to the challenge against one of SIAC’s three preliminary decisions in that case was erroneous. As such, it was directly relevant and necessary to the issue on appeal. In any event, the Supreme Court’s account is highly persuasive and the Court of Appeal would follow it even if it was not bound by it. 

Nonetheless, the Court observed that the Supreme Court was not considering an appeal against a decision of SIAC on the merits of a deprivation appeal after a full hearing. As such, its description of SIAC’s function was not prompted by a detailed analysis of such a decision, but only of decisions on preliminary issues. In that context, the description of SIAC’s function in Begum could not be considered an exhaustive account of its functions in a deprivation appeal.

The Court of Appeal confirmed that deprivation appeals are not and should not be treated as judicial reviews. The Supreme Court’s endorsement of the public law approach to the second preliminary issue in Begum was in the context of an intrinsically public law question. It involved a challenge against the lawfulness of the application of the Secretary of State’s extraterritorial human rights guidance, an administrative policy. Further, the authorities only require SIAC to apply the approach set out in Secretary of State for the Home Department v Rehman [2001] UKHL 29 in relation to a challenge to the assessment of national security, not to other aspects of a deprivation appeal. This is in view of the executive’s institutional competence in national security matters. 

Neither the authorities nor the relevant procedure rules restrict the evidence which SIAC is required to consider on a deprivation appeal and it can take into account evidence which post-dates the impugned decision, as long as it is capable of casting light on events before and at the time of the decision.

Importantly, the Court confirmed that none of the authorities prevented SIAC from making findings of fact on the balance of probabilities in a deprivation appeal. It may, if it considers it possible and appropriate, make findings of fact that are relevant to the assessment of national security. However, those will be of limited use. SIAC cannot use those findings as a platform for substituting its view of the risk to national security for that of the Secretary of State, unless the findings demonstrate that there is no factual basis for the Secretary of State’s assessment. Conversely, where there is material which would rationally support the Secretary of State’s assessment of the risk to national security, SIAC’s findings cannot displace that assessment. The assessment is not solely or primarily based on specific findings of fact, but on an overall consideration of all the material, including inferences from primary facts. 

As such, the Court confirmed, at paragraph 178 that:

“[…]SIAC can, and in some cases must, make findings of fact based on its own assessment of the evidence on the appeal. As long as it respects the limits of the Rehman approach, it may make whatever findings of fact it considers, in its expert judgment, it is able to make and which are appropriate in the appeal it is considering. A judgment SIAC makes about whether to make a finding, or not, is unlikely to be susceptible to challenge on an appeal on a point of law.”

Although obiter, the Court commented, in paragraph 173, that SIAC can make findings of fact in matters not related to the assessment to national security, such as the question of statelessness under section 40(4) of the British Nationality Act 1981. In addition, it was confirmed that none of the authorities prevented SIAC from making findings of fact in an appeal which raised issues under section 40(3) of the 1981 Act. 

This means that the Upper Tribunal’s approach, insofar as appeals against a section 40(3) decision are concerned, set out in Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238 and more recently Chimi (deprivation appeals, scope and evidence) [2023] UKUT 00115 was wrong. In view of the dicta in U3, the First-tier Tribunal is required to make findings of fact to establish whether a person’s British citizenship was obtained by means of fraud, which in turn would have empowered the Secretary of State to deprive them of their citizenship under section 40(3). If such fraud is established on the balance of probabilities, the Tribunal’s review of the Secretary of State’s exercise of discretion should be on public law grounds. This follows from the nature of the discretionary power. However, the condition precedent for the existence of the power is within the fact-finding function of the Tribunal. 

This approach, recently endorsed by the Court of Appeal in U3, was set out in this article from 31 March 2021, where I considered the relevance of the Supreme Court’s decision in Begum to appeals against s.40(3) decisions, as opposed to those against s.40(2) decisions:

Deprivation appeals against s.40(2) and s.40(3) decisions cannot be treated identically, however, given that the powers and their statutory language are different. For instance, for the Secretary of State to be empowered to deprive under s.40(3), she would need to be satisfied that “citizenship was acquired by means of fraud, false representation, or concealment of a material fact.” Whether fraud, false representation or concealment occurred is a question of fact. That is unlike the question of what is in the interests of national security, which in Rehman was found to be a matter of policy. Further, it is a question of whether something occurred in the past, not whether there is a risk of something occurring in the future. As such, it is arguable that FtT and SIAC can assess for themselves the factual basis of a s.40(3) decision by the Secretary of State, by considering whether the alleged fraud, false representation or concealment of material fact has been established to the balance of probabilities.

If the answer is positive, whether that was material to the acquisition of citizenship is also a question of fact, or arguably a mixed question of fact and law. In my view, the FtT and SIAC can also assess this objectively, following Lord Hoffman’s principles in Rehman, which the Supreme Court considered appropriate for deprivation of citizenship appeals.

Nonetheless, as the Begum case concerned an appeal to SIAC against a s.40(2) decision, the Supreme Court did not consider specifically the position of appeals against s.40(3) decisions. How the Begum principles would be applied to those in the First-tier Tribunal, remains to be seen.

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