U3 v Secretary of State for the Home Department [2025] UKSC 19 (12 May 2025)
In an appeal concerning the right approach to be taken by "SIAC", the Special Immigration Appeals Commission, in disputes about matters which are relevant to the assessment of national security, the Supreme Court unanimously dismissed the appeal of "U3" (a British and Moroccan woman who was deprived of her British citizenship because of travelling to Syria) and held that SIAC approached the issues in the present case on the proper basis. In a judgment given by Lord Reed (President), the Supreme Court held that an appeal to SIAC, whether made under section 2 or section 2B of the Special Immigration Appeals Commission Act 1997, is an appeal in substance as well as in form, and is not equivalent to an application for judicial review. Overall, Lord Hodge (Deputy President) and Lords Lloyd-Jones, Sales and Stephens all agreed with Lord Reed who explained that the appeal raised questions concerning the effect the judgment in R (Begum) v SIAC [2021] UKSC 7 and the earlier decision of the House of Lords in SSHD v Rehman [2001] UKHL 47. U3 has three children who are British citizens. Between 2014 and 2017, she and her children and her then husband lived in Syria under the control of the Islamic State of Iraq and the Levant ("ISIL"). On 18 April 2017 the SSHD gave U3 notice under section 40(5) of the British Nationality Act 1981 (as amended) that she had decided to make an order under section 40(2) of that Act.
The effect of the order was to deprive U3 of her citizenship on the ground that the SSHD was satisfied that deprivation was conducive to the public good. The notice said that "it is assessed that you are a British/Moroccan dual national who has travelled to Syria and is aligned with ISIL." The notice said that her return to the UK would present a risk to its national security. In 2018, U3 appealed against the deprivation decision to SIAC under section 2B of the 1997 Act. In 2019, her children were repatriated to the UK. They have subsequently been cared for by members of her family. She remains in Syria with her present husband. On 11 August 2020, U3 applied to the SSHD for an entry clearance granting her leave to enter the UK but her application was refused on 18 December 2020. She appealed to SIAC, on the ground that since the decision stopped her from rejoining her children, it was an unjustified interference with the right to respect for family life under article 8 of the ECHR and was therefore unlawful under section 6 of the Human Rights Act 1998. That appeal was subsequently heard by SIAC together with the appeal against the deprivation decision. SIAC dismissed both appeals on 4 March 2022. The Court of Appeal dismissed U3's further appeal, endorsing SIAC's approach of carefully evaluating all the evidence in the case, applying public law principles to her challenge to the SSHD's assessment of the threat she posed to national security, and refraining from substituting its own national security assessment for that of the SSHD. Aggrieved, she appealed to the Supreme Court.
The Supreme Court
The Supreme Court unanimously dismissed the appeal and Lord Reed found that SIAC approached the issues in the present case on essentially the proper basis, and the specific errors. The court gave the following reasons for its judgment. Lord Reed said an appeal to SIAC, whether under section 2 or section 2B of the 1997 Act, is an appeal in substance as well as in form, and is not equivalent to an application for judicial review. Appeals under those provisions can raise questions of fact as well as points of law. Moreover, unlike in most judicial review proceedings, in the present case SIAC is not confined to considering the evidence which was before the decision-maker when the decision was made.
Applying the public law approach required by the authority of Begum, U3's evidence that she was not a threat to national security could be taken into account in a number of ways. First of all, evidence relating to events occurring prior to the deprivation decision might identify the significance of a matter which the SSHD did not consider but ought to have considered. Secondly, SIAC is not confined to considering material which was or ought to have been available to the SSHD at the time when the decision under appeal was taken. It can consider other material, including evidence which has only later come into existence. Finally, if an individual appeals against a deprivation decision, then the national security assessment is updated during those appeal proceedings to take account of the appellant's evidence and any material uncovered by the review. SIAC then treats the SSHD's updated national security assessment as superseding the original evaluation. Lord Reed held that:
20. If the national security assessment is maintained, the updated assessment will in practice take the place of the original one for the purposes of the appeal, even though the updated assessment will not necessarily have been placed before the Secretary of State. In this respect, the procedure before SIAC is different from the procedure followed in judicial review proceedings. Where what is at stake is citizenship, it would be undesirable to proceed in a piecemeal fashion, with the decision being quashed and remitted potentially more than once. Accordingly, the appeal is designed to be a "one-stop" procedure in which the appellant either wins, with the result that his or her citizenship is restored, or loses, in which case it is not. SIAC observed (ibid) that this can be reconciled with the public law approach set out in Begum if the Secretary of State keeps the challenged decision under review during the appeal and SIAC treats the Secretary of State's updated national security assessment as superseding the original one.
Observing a further difference from judicial review proceedings, his Lordship said that it follows that, in an appeal under section 2 or 2B, SIAC can allow an appeal without there being any implication that the SSHD was not entitled to take the decision on the basis of the material then before her. Lord Reed made reference to the weighty cases of Pham v SSHD [2015] UKSC 19 (see here) and N3 v SSHD [2025] UKSC 6 (discussed here). The Supreme Court said that is a different question from whether the SSHD's decision was lawfully made in the first place, as it could have been if the SSHD was reasonably, albeit mistakenly, satisfied that the order would not have the effect of rendering the concerned person stateless. Lord Reed explained that:
54. However, not every issue which SIAC may be required to decide on an appeal under sections 2 or 2B of the 1997 Act is of a kind which can be determined by making findings of fact on a balance of probabilities. In particular, where an appeal is brought against a decision on a ground which challenges the Secretary of State's assessment that the decision is justified because the affected person poses an unacceptable risk to national security, the nature of that issue requires SIAC to adopt a different approach.
Two reasons were important. First of all, the question whether a decision is justified on the ground of a risk to national security is based on an evaluative judgment or assessment that an unacceptable risk exists, not on the existence of a particular fact or the occurrence of a particular event. So an understanding that a particular fact exists or that a particular event has occurred may form part of the basis of the assessment. However, such assessments commonly refer, as in the present case, to suspicions or likelihoods; and even where the assessment is based on an understanding that a particular fact exists or that a particular event has occurred, whether or not that can be proved on a balance of probabilities will not be determinative. A risk is a possibility. The existence of a risk can therefore arise from evidence which is sufficient to establish a possibility but falls short of proof on a balance of probabilities. The Supreme Court explained that the evaluation of the risk then depends on such factors as the degree of risk, the possible methods of addressing the risk, and the gravity of the consequences if the risk eventuates.
In light of cases such as In re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, R (Pearce) v Parole Board [2023] UKSC 13, Shagang Shipping Co Ltd v HNA Group Co Ltd [2020] UKSC 34, R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 the Supreme Court held that:
61. In practice, the assessment of risk, in the context of national security, will often be based on a number of items of information or intelligence, individually disputable or inconclusive, but cumulatively giving rise to reasonable grounds for an apprehension that, for example, the person in question has been in contact with terrorists and has aligned with their objectives. Those possibilities do not have to be proved to have occurred on a balance of probabilities in order for it to be reasonable to conclude that the person would present a risk to public safety if he or she returned to the UK, or that the risk is sufficiently serious to justify a deprivation decision. Seen in the context of the attacks that have taken place in the UK and elsewhere in Europe in recent years, such as the Bataclan attack in Paris and the Manchester Arena bombing, a precautionary approach is necessary in the interests of public safety. An error in judgement could have catastrophic consequences.
Secondly, SIAC is not the primary decision-maker. Responsibility for assessing whether a person presents such a risk to national security that a deprivation decision or the refusal of entry clearance is justified has been given by Parliament to the SSHD, subject to a right of appeal to SIAC. Furthermore, the SSHD is also exercising a discretion and SIAC's role in this context is hence to review the SSHD's exercise of discretion, based on an evaluative judgment of the risk to national security, applying the principles of public law—except to the extent that they are inconsistent with the statutory scheme. Moreover, in this context a court or tribunal will always attach weight to the assessment made by the decision-maker, for both institutional and constitutional reasons and the SSHD acts on the basis of expert advice, and is accountable to Parliament. The Supreme Court explained that in considering an issue of that nature, all the principles of administrative law are relevant, except to the extent that they are inconsistent with the statutory scheme. For example, in relation to deprivation decisions, procedural fairness is secured after the decision has been taken, by means of the right of appeal to SIAC instead of through the application of common law principles of procedural fairness to the SSHD's decision-making process at the time when the decision is taken.
Subject to one qualification, the Supreme Court considered that SIAC adopted the correct approach in the instant case. The qualification is that SIAC approached the appeal against the deprivation decision on the basis that the issue it had to decide was whether the SSHD could rationally assess, as at the date of the decision, that U3 posed a risk to the national security of the UK. However, it is possible for the appeal to be based on evidence which was not before the SSHD at the time when the deprivation decision was taken.
Nevertheless, in the circumstances of U3's case, that misunderstanding had no effect on SIAC's decision. Having scrutinised the evidence with care, it rejected the challenge to the SSHD's assessment that U3 presented a significant risk to national security. Having reached that conclusion, SIAC was correct to dismiss the appeal against the deprivation decision.
On appeal, the Court of Appeal was incorrect to hold that the issue SIAC has to decide is whether the SSHD 's assessment is based on facts that have been established on a balance of probabilities. Rather, the central question is whether the evidence, viewed as a whole, provides a rational basis for the SSHD's decision, applying public law principles. It would not do so, if the decision was based on a view of the evidence that could not reasonably be held. However, the decision would not be irrational merely because the probability, for example, that U3 had been in Syria was less than 50%. Ultimately, however, the Court of Appeal correctly concluded that SIAC could not, in the circumstances of the present case, overturn the SSHD's assessment.
In relation to the refusal of entry clearance, this constituted an interference with the rights of U3's children under article 8. Notably, the Supreme Court rejected the argument that the approach adopted in Begum, and in the present case, meant that SIAC's procedures no longer met Convention standards. Lord Reed explained that in particular, appeals under sections 2 and 2B of the 1997 Act are adversarial proceedings before an independent body competent to review the reasons for the decision and the relevant evidence, in which the appellant can challenge in an effective manner the allegations that he or she represents a danger to national security, and in which SIAC can react in cases where the assessment has no reasonable basis in the facts or is otherwise unlawful or arbitrary. The court held that in the present case, SIAC carefully assessed the best interests of U3's children, and correctly concluded that the interference with their article 8 rights which would result from the refusal of U3's application for entry clearance was proportionate.
Comment
The Supreme Court rejected the submission that the approach adopted in Begum, and in the present case, meant that SIAC's procedures no longer met Convention standards. Lord Reed said "that submission is not persuasive". The Supreme Court held that the approach is not incompatible with the Convention, as it has been interpreted by the European court. The case law under article 6(1) shows, the procedural requirements of the Convention do not invariably necessitate that an appellate tribunal must have the ability to substitute its own assessment or opinion for that of the administrative authority. Lord Reed found that Ramos Nunes de Carvalho demonstrated that the European court placed emphasis on the respect which must be accorded to decisions taken by the administrative authorities on grounds of expediency—in other words, decisions taken in the public interest—and which involve specialised knowledge and experience.
Despite the legal points made by Lord Reed, Ahmad Sharaa (who rose from an al Qaeda militant to become Syria's leader) had a meeting with US President Donald Trump who was very positive about him and said that "He's got the potential – he's a real leader," and told reporters on Air Force One that Sharaa is a young and attractive guy who has "a real shot at holding it together." If the West is opening up to the Jihadi president of Syria then it is only fair that unfortunate people such as U3 who made the mistake of going to Syria should be treated with the same flexibility. Perhaps Lord Reed is keen to show that him and his fellow judges are not soft on terrorism. After all, judging from past experience they are probably less keen to be labelled "enemies of the people" like they were following the Brexit vote in 2016.