X2 (Preliminary Issue : Substantive): SIAC 18 Apr 2018

The Commission considered whether the deprivation of citizenship decision breached the Secretary of State’s practice or policy.
Held: Sections 78 and 92 of the Immigration Nationality and Asylum Act 2002 (preventing removal while an appeal is pending and rights of appeal exercisable in country) do not apply to appeals under section 40A of the BNA so that Parliament did not intend that an appeal under section 40A was only exercisable in-country or exercisable in-country in certain types of case or that such an appeal should be a bar to removal. SIAC concluded: ‘Parliament clearly anticipated that such appeals [under section 40A of the BNA] would often, if not regularly, be brought from outside the UK. Once that is recognised, it seems to us to follow that Parliament must also be taken to have recognised that such appeals would be brought by appellants whose circumstances outside the UK would vary in many different respects, and that some, at least, would, or might, face significant restrictions, depending on where they are when they appeal, on their ability to take part in their appeals . . It is striking, we consider, that Parliament has not stipulated that the Secretary of State should take any steps to make it easier for such appellants to exercise their right of appeal. Nor has Parliament stipulated that the ability of an appellant effectively to exercise her right of appeal should have any bearing on the fate of the appeal.’
SIAC said that what the Secretary of State was required to assess in order to comply with his stated practice was: ‘that the risks which the Home Secretary is required to assess are risks of harm which would breach articles 2 or 3 of the ECHR (if they applied) that are a direct consequence of the decision to deprive. SIAC described a two-stage test which it drew from the case law of the European Court of Human Rights: (i) a test of ‘direct consequence’ as the criterion for establishing state responsibility, liability being incurred if a state takes action which as a direct consequence exposes the individual to the relevant risk; and (ii) a test of ‘foreseeability’ as the criterion for establishing whether there are substantial grounds for believing the individual would be exposed to the relevant risk. The risk must be both foreseeable and a direct consequence of the deprivation.’
Under the heading ‘Syria’ it stated: ‘A UK-linked individual who has been deprived of his/her British nationality is likely to receive broadly the same treatment (for better or worse) as an individual who retains British nationality; although speculative it is possible that, at some point in the future, British nationals will be treated differently, insofar as arrangements may be made to return some individuals to the UK.’
Under the heading ‘Bangladesh: Risk of mistreatment in Bangladesh and relevance of deprivation’ it is stated: ‘It is not possible to speculate what will happen to women in refugee and IDP camps, whether or not they are suspected of being ISIL-linked. We do not consider that a repatriation to Bangladesh is a foreseeable outcome of deprivation and as such the Home Secretary may consider that there is no real risk of return-let alone of mistreatment on return-for the purpose of complying with his practice. However, for completeness we consider those risks here.
Open source reporting indicates that there is a real risk that individuals in Bangladesh could be subject to conditions which would not comply with the ECHR; there is some media reporting to suggest that the Bangladeshi authorities may have carried out extra-judicial killings . . of detainees and other enemies of the state.’
[2018] UKSIAC 1-SC- 132-2016
Bailii
Immigration Nationality and Asylum Act 2002 78 92
England and Wales
Cited by:
CitedBegum v Special Immigration Appeals Commission and Others CA 16-Jul-2020
Return To UK to fight Citizenship Withdrawal
The appellant had, as a 15 year old, left to go to Iraq to be the ISIL terrorist group. She married an ISIL fighter and they had three children, the last one dying. Her citizenship of the UK had been withdrawn by the respondent leaving an . .

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Updated: 08 July 2021; Ref: scu.622627