Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2023

Lord Coaker Excerpts

Monday 20th March 2023 Grand Committee

[Baroness Hamwee (LD)]

My Lords, I hope that the Committee and the Deputy Chairman of Committees will understand that my sitting down today is not a sign of any disrespect to any Member or to the Committee. I thank the Minister for his introduction to this instrument. I do not think he will be surprised to know that I am not thanking him for the instrument itself, and very much not for the Nationality and Borders Act.

Those of us who find difficulty with proceedings in any number of areas, particularly when they are closed, are generally assured by the Government that we should not worry because there is judicial oversight. I cannot recall whether this was so in the case of Section 10 of the Nationality and Borders Act, but the instrument points up the hollowness of such an argument. As the Minister explained, Section 10 provides that the Secretary of State does not have to give notice of deprivation of citizenship in certain circumstances, and, if she

“reasonably considers it necessary, in the interests of”

certain matters,

“that notice … should not be given.”

That is in new Section 40(5A)(b) of the 1981 Act, which includes

“the relationship between the United Kingdom and another country”.

I understand the Minister to have included that in his list of high harms. It is quite easy to think of examples of what might be necessary so as not to annoy another state, which I think would come within the relationship between the UK and another state. Can the Minister tell the Committee whether he expects this power to be used very narrowly, and confirm that proportionality will apply?

We are reliant on the commission to assess the reasonableness of the view of the Secretary of State but even the commission does not have a free hand. Under Section 25E in the new Part 4A,

“The Commission must determine the application on paper without a hearing”.


My second question is: why is it “must” and not “may”? If we are to have any confidence in the process as a whole, should we not trust the commission to decide for itself whether determination on paper is appropriate? Can the Minister explain this? Can he explain to the Committee what will happen if the commission, having seen the paper application, has questions of the Secretary of State and wants to hear from counsel on her behalf?

I admit that I have no experience in this, other than debates in your Lordships’ House over the years and briefings from professionals and others involved in the process, but it seems that it is all too easy for such an application to become completely formulaic. Once there is a formula which is considered to pass the not “obviously flawed” threshold or test, that will go to the commission without, apparently, its being able to say, “Yes, but”. The “obviously flawed” test is in the new Schedule 4A. Is it beyond the bounds of possibility that the Home Secretary herself could want a hearing? We will never know because there is no one to ask. We are not even getting that close to the territory of closed hearings and special advocates here.

I find it difficult to understand what role this appeal court would be left with. We will know next to nothing—probably nothing—about the use of these powers. Paragraph 14 of the Explanatory Memorandum tells us:

“As the Home Secretary decides each case personally and due to the very low number of cases expected to be affected by these provisions, no specific monitoring or review of these measures will be undertaken.”


In this situation, reporting is almost a synonym for monitoring. Can the Minister at least give an assurance that there will be reporting? I cannot see that it could be very difficult. What harm would be caused? I do not think that I need to spell out why a report in the public domain is desirable and essential. So often we are told, not only by Home Office Ministers but from the Dispatch Box, that there is no need for a review of a provision in primary legislation, because there is an automatic, periodic review of all legislation that the Government put through. However, no review of the measures means no review of Section 10. In our view, there should be reporting, not just of numbers but, for instance, of whether men or women are affected by deprivation orders, and, importantly, whether each individual has, or is considered to have, dual nationality. Indeed, can the Minister confirm—I appreciate that it is a bit beyond this instrument—whether the powers will be used only in the cases of individuals who are citizens of another state? Does the appetite for secrecy really mean that the state is protecting us?

I have been doing my best to avoid reference to an ongoing case, and I do not seek to draw the Minister into it—I know that he will not be drawn in—but it is justifiable to ask about the cohort of women known to be in a camp in Syria, who are held there because of their IS connections. Can one really say of them that their whereabouts are unknown? They are not going anywhere; they are known to be in the camp, although they cannot contact lawyers. For reasons the Grand Committee will understand, given his widely reported comments last month regarding a case before SIAC, have the Government consulted the current Independent Reviewer of Terrorism Legislation? This is about legislation; Jonathan Hall is independent.

I have referred to judicial oversight. What I take from the instrument is that oversight of the process can be no more than minimal, and therefore oversight of the process is eliminated.

[Lord Coaker (Lab)]

My Lords, I thank the noble Baroness, Lady Hamwee, for her remarks; I agree with much of what she said.

I will confine myself to dealing with the SI before us, notwithstanding what many of us thought about the Nationality and Borders Act. As the Minister told us in his helpful introduction, the SI makes two required amendments to the Special Immigration Appeals Commission after the introduction of the Nationality and Borders Act. They are two amendments which many of us sought to introduce. We all support keeping our nation safe, but as a democracy, even in circumstances of national security, safeguards need to be built in. We all agree that citizenship is a privilege and a right, but in depriving someone of their citizenship, some checks are needed, to say the least. We therefore welcome the changes to the process, although I may have comments about how we actually got here.

The amendment requiring the Secretary of State to make an application to SIAC when making an order to deprive someone of their citizenship is important and welcome. That application must include an explanation as to why it is necessary for that order to be made without providing notice to the individual, and SIAC will then be required to determine whether the Secretary of State’s view is “obviously flawed”.

I have some questions for the Minister. What does “obviously flawed” mean? Can he give an example of what is meant by that? Can the Minister say who can advise the Minister that such a deprivation of citizenship is necessary? Is it only the Home Secretary who can apply to SIAC, or can the Foreign Secretary, for instance, do it? I think that I know the answer, but, as I mentioned to the Minister outside the Grand Committee, it is sometimes necessary to put those things on the record. As the noble Baroness, Lady Hamwee, referred to, are such applications made public in any way, either when they are made, or during or after any SIAC determination?

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

My Lords, I am grateful for those two considered contributions. I obviously appreciate the strength of feeling about deprivation of citizenship, but perhaps the Committee will bear with me if I repeat what I said earlier: maintaining our national security is the priority for the Government. It is vitally important that we are still able to take deprivation action, even if we do not know where a person is, to protect the public and keep our country safe. This instrument brings us closer to being able to do that, but let me explain the type of case we envisaged being covered by the new process of referral to the Special Immigration Appeals Commission.

Imagine someone who has been spying for another country against the UK and is now living at an unknown address in that other country; or the head of an organised crime group whose current whereabouts are known only through a police informant, and to use the address would put the life of that informant at risk; or a supporter of Daesh who has committed terrorist attacks and is hiding in the mountains of Syria. Such people pose a direct threat to the safety and security of the UK, and it simply cannot be right that our hands are tied because we cannot take away their British citizenship without giving them notice of the decision. Of course, depriving a person of the privilege of being British is a very significant thing to do. That is why the Nationality and Borders Act 2022 provides for judicial oversight of such decisions.

I will now take the opportunity briefly to address the additional points raised. I turn first to the points raised by the noble Baroness, Lady Hamwee. I was asked initially to confirm whether the powers would be used in a narrow and proportionate way. That is certainly my understanding. The application of deprivation powers is clearly a serious use of state power and will be done only in cases which warrant that significant step. I was then asked about reporting. I imagine that the reference there was to reporting statistics in relation to deprivation. Some statistics are certainly provided but, for obvious national security reasons, detailed statistics cannot be. The Government take very seriously their obligations to keep these matters under review.

I was asked specifically whether the Independent Reviewer of Terrorism Legislation was consulted in respect of this measure. I am afraid I do not have the answer to that question to hand. I imagine that there has been some engagement with this legislation, but I will of course find out and write to the noble Baroness in respect of that question.

I turn to the questions raised by the noble Lord, Lord Coaker. His first was on whether, in the rules, the phrase “Secretary of State” referred to the Secretary of State for the Home Department. I think that phrase is subject generally to the definition in the Interpretation Act: that it applies to any of His Majesty’s principal Secretaries of State. But in practical terms, I certainly understand that the power will be exercised by the Secretary of State for the Home Department.

I was then asked as to the extent to which the existence of the proceedings should be made public. The view is taken that these proceedings are generally, for reasons of national security, best done in a closed environment and, we would suggest, best done on the papers. In the circumstances of an application to commence proceedings without giving notice, the Home Office is the only party to proceedings and, given that this is about the administrative process of giving notice, it is unnecessary to have an open hearing with several judges. The individual will not be aware of the deprivation decision at this point and will not be in a position to give legal direction. The Special Immigration Appeals Commission will determine whether the Secretary of State’s decision not to give notice is “obviously flawed”, in line with judicial review principles. I hope that answers the next question which the noble Lord asked me, which was, “What is obviously flawed?”. It is something that would be upset on judicial review for being unlawful in the public law sense, so when it would be unreasonable or unlawful.

I was asked whether legal aid will be available. Obviously, in the case of no notification, it is hard to envisage a situation, given the lack of co-operation of the other party, where legal aid would be appropriate. But certainly, in principle, in relation to deprivation proceedings, legal aid is available and there are no plans to alter that.

As to the right of appeal, obviously, SIAC itself is an appellate body, in that one is appealing against or challenging a decision of the Secretary of State. Further appeals under SIAC are possible under the procedure rules; indeed, we have seen in various recent cases the involvement of the Court of Appeal.

I was asked about the time for making a determination described in Regulation 7, at new paragraph 25E of the rules, the provision that

“The Commission must determine the application no later than 14 days after”


receipt of the application. That period was agreed with the chair of the Special Immigration Appeals Commission, as it was suggested that it was an appropriate time for the chair to consider that application, balanced against the potential urgency. Of course, the only question the chair is considering there is whether it is appropriate for notice to be served—that is, whether the Secretary of State’s application should succeed.

I turn to the question from the noble Lord, Lord Coaker, in respect of Rule 25B set out in Regulation 7 and, in particular, the question of the meaning of Rule 25B(3). If the Secretary of State has the information listed, it must be provided, but if the Secretary of State does not have it, the Secretary of State does not have to provide it, and that does not prevent an application going ahead. Ultimately, the Special Immigration Appeals Commission will decide whether it has sufficient information to decide the application. Clearly, if it decides that it does not have adequate information, it will refuse the application.

[Lord Coaker (Lab)]

If I understood the Minister correctly, he just said that if the Secretary of State does not know the information, the Secretary of State does not have to provide it to SIAC, but the Secretary of State is applying to SIAC for a deprivation of citizenship. How can you deprive it if you do not know what it is?

[Lord Murray of Blidworth (Con)]

This is the application process to proceed without serving notice. The Secretary of State may know, for example, the person’s name, the person’s nationality or nationalities and the relevant Home Office reference, but not the person’s correct date of birth. As I understand the operation of sub-paragraph (3), that means that the absence of that one particular, given that the Secretary of State does not know it, does not invalidate the application.

[Lord Coaker (Lab)]

I was not asking about date of birth, was I? I was asking about where the Secretary of State does not know the nationality. I appreciate the case where you do not know all of the name, and so on—but it seems to me pretty key, if you are starting the process to deprive someone of citizenship but you do not know what their nationality is.

[Lord Murray of Blidworth (Con)]

It is clearly right—this comes back to another question I was going to deal with in a moment—that the power can be exercised only in cases of persons entitled to more than one nationality. The question is whether the department knows of an entitlement to British nationality and an entitlement to another nationality. If there are other potential nationality entitlements, it may be that, if those are not known, their absence from the application will not of itself invalidate the application. That is, as I understand it, the intent of that sub-paragraph.

[Lord Coaker (Lab)]

I do not want to dance on the head of a pin, but now the Minister has got into the potential for denying potential nationalities, and I would say that that is fraught with difficulties. I will leave it there—but it is an interesting point about the need for clarity. The Home Office not knowing what someone’s nationality is and being able to miss that out from a SIAC appeal as the basis of a process leading to, at some point, depriving someone of nationality or citizenship, seems a bit much.

[Lord Murray of Blidworth (Con)]

I can certainly write to the noble Lord about it, but the short point is this: if SIAC is concerned, on the balance of probabilities, that somebody has only British citizenship and not another, it will not make an order of deprivation. I hope that, to some extent, answers his question.

[Lord Coaker (Lab)]

I think the Minister is saying that it is perfectly open to SIAC to reject that application on the basis that the Government do not know what they are doing with respect to that nationality and that they should come back at a future date when they have done a bit more work on it.

[Lord Murray of Blidworth (Con)]

Indeed, as with any court.

In respect of the noble Lord’s question on Rule 47 as to credibility, the question being whether a claimant’s good reasons for responding late to a priority removal notice would be taken into account in cases that go to SIAC, the answer is yes.

To pick up one point from the noble Baroness, Lady Hamwee, on the use against dual citizens, it is right and clear in the statutory regime that an order using a deprivation power cannot be made that would have the effect of rendering a person stateless, hence the need for two nationalities, except that there is a very limited provision in Section 40(4A) of the Act, but that power has not been used to date. In any event, deprivation on conducive grounds is used sparingly and against those who pose a serious threat to the UK. It is correct that the conducive power is limited so that it can be applied only to those who are dual citizens or where there are reasonable grounds for believing that the person can become a national of another country. Parliament chose to enact the power on that basis to avoid the prospect of leaving individuals stateless, which would be contrary to the UK’s commitments under the 1961 statelessness convention.