In this piece, we look at how a person can appeal against the Home Secretary’s decision to deprive them of their citizenship.
In which court should I make the appeal?
A person who is deprived of their British citizenship under section 40 of the British Nationality Act (BNA) 1981 has a statutory right of appeal to the First-tier Tribunal, under section 40A(1) of that Act. However, section 40A(2) provides that this does not apply where the Home Secretary made the deprivation decision relying on information which, in the interest of the public, it is decided should be kept secret. When that is the case, the individual may appeal to the Special Immigration Appeals Commission (SIAC) under the SIAC Act 1997, section 2B. Given that many citizenship deprivation cases involve matters of national security, it is common that appeals against deprivation go to SIAC.
Can I return to the UK to make my appeal?
Until 2005, the effect of a deprivation order was suspended while an appeal against it was ongoing. This allowed a person to return to the UK to appeal against a decision to remove their citizenship. However, paragraph 4(c) of Schedule 2 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 reversed this provision by removing section 40A(6) from the BNA 1981. Since this amendment came into effect in 2005, a person who is abroad at the time their citizenship is removed is prevented from returning to the UK to make their appeal.
Even in circumstances where an individual will not be able to have a fair and effective appeal from abroad, there is no guarantee that they will be allowed to return to the UK to appeal against the deprivation decision (R (Begum) v SSHD [2021] UKSC 7).
What is the scope of the appeal?
An appeal against deprivation entails a full reconsideration of whether the deprivation order should have been made (KV (Sri Lanka) v SSHD [2018] EWCA Civ 2483 [6]).
Following Arusha and Demushi (deprivation of citizenship – delay) [2012] UKUT 80, the following principles apply to the nature and scope of an appeal against citizenship deprivation:
- The Tribunal has a wide-ranging power to consider, by way of appeal and not of review, what appellant’s case should have been;
- The Tribunal will consider any relevant evidence, whether or not it is available to the respondent at the time of his decision;
- The respondent has the burden to prove that citizenship deprivation was justified;
- The appellant can raise general human rights grounds, but the alleged breach must be caused by the decision to deprive the appellant of their citizenship and giving effect to that decision, and not framed to deal with a “fiction” that the appellant would be removed from the country.
In Deliallisi (British citizen: deprivation appeal: Scope) [2013] UKUT 439, the Upper Tribunal clarified the scope of the appeal further, holding that the appeal court is required to consider whether the Home Secretary’s discretionary decision to deprive should have been exercised differently.
In 2018, the Upper Tribunal offered further guidance in the judgment in BA (deprivation of citizenship: appeals) [2018] UKUT 85. The court held that the Tribunal can only allow the appeal if it is satisfied that there is some exceptional reason why the Home Secretary’s discretion should have been exercised differently and/or that a reasonably foreseeable consequence of citizenship deprivation would be unlawful under the Human Rights Act 1998.
Will I know the evidence against me?
Not necessarily. This is because appeals to SIAC may be subject to closed material procedures, whereby all or part of a case against the appellant can be heard in closed proceedings in order for the court to consider material which, if disclosed to the public, would risk harming national security. Closed hearings exclude the appellant and their legal team, although the appellant is represented by a Special Advocate.
The Special Advocate takes instructions from the appellant and is then allowed to see the sensitive material that will be before the court. However, once the Special Advocate has seen the sensitive material, he or she is prevented from speaking to his or her client.
How Gherson can assist
Gherson is proud of its reputation in the specialist area of British nationality law. If you think you are at risk of citizenship deprivation, please do not hesitate to contact us for advice, send us an e-mail, or alternatively, follow us on Twitter, Facebook, or LinkedIn to stay-up-to-date.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
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