Its intervention concerns how to ensure appeals against deprivation of citizenship orders protect the home secretary’s remit while also protecting the right to be heard of the individual who is subject to the order.

U3 was born and raised in the UK and is mother to two children living in the UK. She was deprived of her citizenship by the home secretary in 2017 on grounds that she was aligned to ISIL and presented a threat to UK national security.

U3 appealed this decision from a Syrian camp for “internally displaced people”, presenting evidence that she was a victim of domestic abuse, including coercive and controlling behaviour. U3 argued she had never been aligned with ISIL and that the primary reason for her presence in ISIL-controlled territory was a controlling and abusive marriage. 

The Special Immigration Appeals Commission (SIAC) heard U3’s appeal following the 2021 Supreme Court judgment in the case of Shamima Begum (R (Begum) v SSHD [2021] UKSC 7). In U3, SIAC interpreted its role in light of Begum and held that its fact finding role was restricted. Despite SIAC’s facilities to hear evidence and cross-examination, including closed hearings for sensitive national security evidence, SIAC held that its role was essentially limited to identifying whether the Home Secretary’s view of the facts was rationally open to her or not.

JUSTICE is not intervening on the particulars of U3’s case, but on the wider issue of SIAC’s fact-finding function and its purpose.

In these national security cases, people normally do not get to hear the case against them before the home secretary decides to remove their citizenship, nor do they have any chance to give their version of events at that stage. This was the case for U3, and therefore her SIAC appeal was the first opportunity for her to hear the case against her, answer it and provide evidence to rebut it.

JUSTICE argues that the opportunity to be heard and rebut the case against you are fundamental principles of natural justice. SIAC appeals are life-changing, and the only chance available for individuals to show that the home secretary got the facts wrong. JUSTICE argues that SIAC therefore has to be able to make findings of fact on the basis of the evidence that it hears, and that those findings of fact then have to have a meaningful impact on the case.

Last year, the Court of Appeal reconsidered SIAC’s approach, and unanimously agreed that there are no restrictions on SIAC’s fact-finding powers. It acknowledged that SIAC is very well placed to find facts, seeing more varied and more detailed evidence than the home secretary ever does in these cases, which critically includes evidence which the appellant has provided for the first time (like the expert evidence of domestic abuse in U3’s case). However, the Court of Appeal held that SIAC is still very limited in the use that it may make of its findings. Crucially, if SIAC finds an individual was not motivated by ideological alignment with a terrorist organisation (but, for example, by a controlling and coercive relationship), SIAC will not allow an appeal unless the contrary factual assessment is irrational, i.e. there is no material which could support it.

JUSTICE agrees with the Court of Appeal insofar as it held that SIAC can consider new evidence and make findings of fact based on such evidence. But JUSTICE’s intervention to the Supreme Court submits that the Court of Appeal was wrong to restrict what SIAC can do with those findings of fact. JUSTICE submits that an appeal should be allowed whenever SIAC finds the deprivation decision was based on an error of fact, including when SIAC makes a finding about a person’s motivation, unless it is inevitable that the error would have made no difference to the outcome. This approach would leave the Home Secretary’s power to decide on such issues on national security grounds intact while respecting the individual’s fundamental right to have a meaningful opportunity to seek to rebut the case against them and ensuring SIAC provides access to a meaningful appeal.

Fiona Rutherford, chief executive of JUSTICE, said: “Our whole lives are built on our citizenship rights, and stripping someone’s citizenship is one of the most serious decisions the state can make. When this is done without hearing from the person affected, their right to a meaningful appeal becomes a vital safeguard, which is why Parliament built such a safeguard into law.

“For these reasons, SIAC must have a meaningful role in hearing all the evidence, making appropriate findings and, when there is a proven error of fact in the deprivation decision, allowing an appeal. Nothing less will ensure this appeal actually functions as Parliament intended.”