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SIAC found against appellant on three issues in immigration matter

Al Jedda v Secretary of State for the Home Department [2008] UKSIAC 66/2008

Related Member(s):
Samantha Knights QC
Related Practice Area(s):
EU Law, Immigration, Asylum and Free Movement
Court:

The SSHD made an order depriving the appellant of his British citizenship. The appellant appealed against that decision.

Before the matter could proceed to a full appeal, three preliminary issues were to be decided:

•         Did the deprivation order render the appellant stateless?
•         Is the SSHD required to provide a minimum level of disclosure and information about the case against the appellant pursuant to the ECHR and/or EU law?
•         Was the deprivation of citizenship unfair because the SSHD failed to provide the appellant with an opportunity to make representations before the order was made?

The Court found against the appellant on all three issues.

The appellant was an Iraqi citizen at birth and there has been considerable litigation concerning whether the appellant ever lost his Iraqi citizenship. The Court refused SSHD permission to re-examine this point, but did accept that the appellant re-established (if he ever lost it) his Iraqi citizenship in 2008, and therefore the order depriving him of his British citizenship would not have rendered him stateless.

It was common ground that the current authorities stated that the ECHR did not require that the appellant be provided with a minimum level of disclosure about the case against him; however, counsel for the appellant reserved his position on this point in order to argue it at a higher level. The appellant did, however, claim that he could rely on EU law and sought to rely on the ratio of Zambrano v Office national de l’emploi (C34/09) However, the Court refused the appellant’s assertion that his case engaged EU law and cited the case of Harrison v SSHD [2012] EWCA Civ 1736, noting that the ratio of Zambrano was ‘highly exceptional’ and will not be regularly engaged.

The Court also refused to accept that the order was unfair because of a failure to allow the appellant an opportunity to make representations before the order was made. The Court noted that the common-law duty to consult will only be abrogated by statue, and the Court was satisfied that British Nationality Act 1981, s 40(5) abrogated this duty. Secondly, the Court noted the appellant’s appeal against the order is a full-merits appeal, and not a judicial review, and thus prior consultation is not necessary.

Samantha Knights was involved in this case.