SIAC Can Make Findings In Deprivation Appeals

• Published date: 14 August 2023
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Terrorism, Homeland Security & Defence, Trials & Appeals & Compensation, Human Rights
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Mr Alex Papasotiriou

In U3 v Secretary of State for the Home Department & Anor [2023] EWCA Civ 811, the Court of Appeal resolved the purported conundrum formed by the notion that, whilst deprivation appeals (before SIAC) are governed by administrative law principles, they also involve the consideration of evidence that was not before the decision-maker at the time of the decision. It was confirmed that, if it considers that it can and that they are appropriate, SIAC may make findings of fact in deprivation appeals.

The Deprivation Appeals Conundrum

The "conundrum" was referred to in paragraph 52 of SIAC's decision in Shamima Begum and Home Secretary SC/163/2019 (explained in this article ), where the Chairman of SIAC, Jay J, stated:

"Thirdly, the Special Advocates in particular have been troubled by what they believe to be the conundrum or paradox created by the idea that, putting to one side human rights considerations for one moment, the appeal under section 2B is governed in the main by administrative law principles. The Special Advocates' concern is that, on the one hand, the decision under challenge is that of the Secretary of State and its lawfulness must therefore be judged at the time it was made, and on the other hand the Commission has always accepted written and oral evidence which was not before the decision-maker at the material time. That antinomy will, we hope, be resolved finally by the Court of Appeal's judgment in the appeal of U3 , although that will come too late to justify holding back the Commission's judgment in the present case."

Resolving the Deprivation Appeals Conundrum: Insights from U3 v Secretary of State [2023] EWCA Civ 811

The first matter the Court of Appeal considered was whether the Supreme Court's account of SIAC's functions in a deprivation appeal, set out in R (on the application of) Begum v SIAC & Anor [2021] UKSC 7 (explained in this article), was ratio or obiter. The Court of Appeal held that it was ratio: the Supreme Court set out the general nature and limits of a deprivation appeal before SIAC in order to demonstrate that the Court of Appeal's approach to the challenge against one of SIAC's three preliminary decisions in that case was erroneous. As such, it was directly relevant and necessary to the issue on appeal. In any event, the Supreme Court's account is highly persuasive and the Court of Appeal would follow it even if it was not bound by it.

Nonetheless, the Court observed that the Supreme Court was not considering an appeal...