On 9 March, the European Court of Human Rights unanimously concluded that stripping a dual British-Sudanese national of his citizenship and permanently excluding him from the United Kingdom did not, in all the circumstances, violate his rights under Article 8 of the Convention. In fact the Court went a step further, dismissing the application as manifestly ill-founded.
The decision has been billed as confirming that the Government’s policy of depriving British terror suspects of their citizenship is consistent with its obligations under the Convention. This is, of course, over-broad, as important parts of the Court’s reasoning related to the applicant’s individual circumstances. However, the case does confirm that the policy is not, in the Strasbourg Court’s view, inherently unlawful, and provides a helpful indication of the type of factors that will determine whether future challenges to the application of the policy succeed.
The Court’s decision concerned a man known only as “K2” – a British citizen who was also entitled to Sudanese citizenship, but had come to the UK as a child and spent the vast majority of his life here. While the basic facts are simple, the procedural history is relatively complex, and warrants attention because of the important role it played in the Court’s conclusions.
The basic facts
In October 2009, K2 was arrested for a public order offence stemming from a protest against Israeli military action in Gaza. He was charged and released on bail, but left the UK before he was required to surrender. Although it was not contested that his ultimate destination was Sudan, the Home Office believed he had travelled via Somalia – in the company of individuals with known links to extremism – where he had “engaged in terrorism-related activities linked to al-Shabaab”. It subsequently emerged that K2 was also believed to have engaged in terrorism-related training and to have fought against the forces of the African Union Mission in Somalia (AMISOM). The underlying information and evidence has never, on national security grounds, been made available either to the public or to K2.
important parts of the Court’s reasoning related to the applicant’s individual circumstances
In June 2010, while K2 was still in Sudan, then-Home Secretary Theresa May took two related decisions: firstly, to deprive K2 of his British citizenship on the basis that this was “conducive to the public good”; and secondly, to bar him permanently from re-entering the UK on the ground that he was “involved in terrorism-related activities” and had “links to a number of Islamic extremists”.
The relevant power in respect of the former decision is contained in s 40(2) of the British Nationality Act 1981 (“the BNA”), which – very simply – empowers the Secretary of State to make an order depriving a person of his or her British citizenship on the ground that that deprivation is “conducive to the public good”.
The procedural history
K2 challenged these decisions in three different ways.
First, he challenged the decision to bar him from the UK – which had been taken in the exercise of the Crown prerogative – by way of judicial review. The challenge, which was based broadly on the fact that K2 had a right to appeal his deprivation of citizenship and could do so effectively only from within the UK, failed in both the High Court and the Court of Appeal. The Supreme Court refused permission for a further appeal.
Secondly, K2 appealed the decision to deprive him of his British citizenship in the Special Immigration Appeals Commission (“the SIAC”).
The basis of the appeal was that K2 could make a positive case that he did not pose a sufficient risk to national security to justify depriving him of his citizenship, and that he was unable to participate meaningfully in his appeal from Sudan as giving instructions to his legal representatives would put him at risk from the Sudanese authorities.
Ultimately, the SIAC concluded that:
- there were enough safe methods of communication available for K2 to communicate effectively with his lawyers (meaning the hearing on the substantive issues could proceed);
- the “closed” evidence conclusively established K2’s presence in Somalia at the relevant time to “engage in terrorism-related activities”;
- there was “convincing evidence” that K2 had “remained in the company of [known extremists] and engaged in a variety of terrorism-related activities connected with Al-Shabaab”;
- the evidence as a whole was “conclusive that [K2] engaged in terrorism-related training”; and
- it was “probable”, based on the closed evidence, that K2 fought against AMISOM.
K2’s witness statements, far from rebutting this evidence, were considered to be deliberately misleading.
The SIAC went on to consider the issue of interference with K2’s right to private and family life, concluding that – given the nature and extent of his terrorism-related activities – this interference had been fully justified. The Court of Appeal refused an application for permission to appeal.
Finally, K2 made an application to the European Court of Human Rights, claiming that both the decision to deprive him of citizenship and the decision to exclude him from the UK violated his Article 8 right to private and family life.
The Strasbourg decision
The Court began by considering the decision to deprive K2 of his British citizenship.
It accepted that – consistent with its recent jurisprudence – the arbitrary revocation of citizenship was capable of raising an issue under Article 8 “because of its impact on the private life of the individual”. The relevant questions were (1) whether the revocation was arbitrary, and (2) what the consequences of revocation were for the applicant (para 49).
In answering the first question, the Court had regard to (i) whether revocation was “in accordance with the law”, (ii) whether it was “accompanied by the necessary procedural safeguards”, and (iii) whether the authorities acted “diligently and swiftly” (para 50).
The Court concluded that:
- there was no question that the decision to revoke K2’s citizenship was “in accordance with the law” as set out in s 40(2) BNA (and K2 had not contested the foreseeability or quality of this provision) (para 53); and
- there was no evidence of any failure on the part of the Secretary of State to “act diligently and swiftly” in making her decision under s 40(2) (para 53).
The Court’s focus was therefore on the requisite procedural safeguards under Article 8.
K2 contended that the availability of an appeal to the SIAC was inadequate due to both the limited disclosure of the national security case against him, and the difficulties in instructing his representatives from Sudan.
On the first point, the Court noted that K2 had been provided with “a National Security Statement setting out clearly – in open evidence – details of the Secretary of State’s national security case against him”, with the result that “the nature of the case was broadly known” (para 55). It further recalled that in previous cases (such as IR and GT v UK and Khan v UK), it had concluded that there were sufficient guarantees in the SIAC procedure to satisfy the requirements of Article 8 (para 55).
On the second point, the Court made four observations (at paras 57-60):
- an out-of-country appeal does not necessarily render a decision “arbitrary” within the meaning of Article 8 (this will depend on all the circumstances);
- K2 was able to raise his arguments as to the necessity of his presence in the country both by way of judicial review and as a preliminary issue before the SIAC, with the arguments on both occasions rejected following “comprehensive and thorough examination”;
- the SIAC had taken account of the lack of instructions from K2 in reaching its decision and so had adopted a cautious approach to the closed evidence; and
- the procedural difficulties complained of by K2 were to a certain extent of his own making, due to his decision to flee the country before surrendering to bail.
The Court concluded that, in light of all these factors, the decision to revoke K2’s citizenship could not be considered arbitrary.
Turning to the consequences of the revocation, the Court noted that K2 was not rendered stateless by the decision as he was entitled to a Sudanese passport. Furthermore, he was residing voluntarily in Sudan at the time of the decision, where he could be freely visited by his family (para 62).
The Court therefore considered the Article 8 claim as it related to the revocation of citizenship to be manifestly ill-founded (para 64).
Far briefer consideration was given to the decision permanently to exclude K2 from the UK. The Court, while accepting that this entailed some interference with private and family life, found that as K2 could be freely visited by his family in Sudan the interference was not “significant” (para 66). Having regard to this, and to the SIAC’s “clear findings concerning the extent of his terrorism-related activities”, the Court did not consider the interference disproportionate to the legitimate aim of protecting the public from the threat of terrorism. This aspect of the complaint was also rejected as manifestly ill-founded.
Comments and implications
To a large extent, the Court’s decision in K2 is unremarkable. It relies on and affirms earlier decisions relating to (for example) the Article 8 implications of the deprivation of citizenship and the adequacy of procedural safeguards before the SIAC, and does not appear to contain any significant developments of principle.
the decision also suggests that the Court is likely to defer to the domestic courts’ assessment
Nor, as noted in the introduction, does it provide blanket cover for the use of s 40(2) BNA in cases of suspected terrorism: rather, it suggests that much will turn on questions such as the extent to which the case against an applicant is known in any appeal before the SIAC; the extent of and evidence for any difficulties in participating in the appeal from outside the UK; the strength of the SIAC’s conclusions on the applicant’s terrorism-related activities; and the seriousness of the consequences of the deprivation of citizenship for the applicant’s private and family life.
Interestingly, the decision also suggests that the Court is likely to defer to the domestic courts’ assessment of the relevant procedural issues – at least where these seem to have been given a “comprehensive and thorough examination”. This means the outcome of proceedings before the SIAC, including the detail of its findings, is likely to be significant in assessing the prospects of success in Strasbourg.
it will be for advocates to keep a close eye on the facts of individual cases
The result is that, while the Government may well feel emboldened by the decision in its use of s 40(2) BNA, it will be for advocates to keep a close eye on the facts of individual cases to determine how far they fall from those of K2, and what this might mean for an application based on Article 8. In this regard perhaps the most significant aspect of the Court’s decision was to treat the application as manifestly ill-founded – suggesting that the factual matrix would need to differ quite markedly before success was a realistic prospect. The outcome of further cases will be awaited with interest by all those concerned by the Government’s policy.