What is the case about?
The Appellant (‘A’) appealed a decision of the Special Immigration Appeals Commission (‘SIAC’) that dismissed A’s request for a statutory review of the Secretary of State’s decision to exclude him from the United Kingdom. A is a Libyan national. His wife is a dual British/Libyan citizen, and they have six children who are all dual British/Libyan nationals.
Between 2014 and 2017, A lived in the UK with limited leave to remain (‘LLTR’) until 2018. The Secretary of State’s decision dated 8 September 2017 (‘decision 1’) cancelled this and the family subsequently moved to Turkey, where A had been living since 2017.
The issues.
The Secretary of State agreed to reconsider decision 1 on 27th February 2020 and the open version of the relevant ministerial submission is dated 26th March 2020.
A was said to have held a leadership position in the Zintan Martyrs Brigade (‘ZMB’), a militia group active in Libya, and has admitted to having contact with people who later became extremists or terrorists but stated he did not share their views. The submission referred to A’s Article 8 qualified rights. However, interference with Article 8 rights may be justified on the grounds of national security if it is necessary and proportionate. Here, officials considered that ‘any such interference with his or his family’s family or private life is necessary and proportionate when balanced with the threat that he is assessed to pose to the United Kingdom’.
On 31 March 2020 the Secretary of State notified A that she had personally withdrawn decision 1 and, on 26 March 2020, had made a further decision to exclude A from the United Kingdom on the grounds of national security (‘decision 2’).
The six grounds for A’s re-amended review application were that decision 2 was irrational, a breach of the Secretary of State’s policy, insufficiently reasoned, a breach of Article 8 and of the Zambrano principle, and unfair.
The Court held the guidance in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 was not decisive in the present context. In her skeletal argument, the Secretary of State responded that if Article 8 was engaged, what was at issue was ‘relatively slight private interests’ to be weighed against national security. If A posed a risk to national security as assessed and there was no equally effective way to mitigate the risk, ‘it must be reasonable and proportionate to exclude him from the UK even if that prevents his family from living together as a family unit in their preferred choice of country’.
The public interests to be weighed in the proportionality balance in ZH were the interests in firm immigration control and in the economic wellbeing of the country.
SIAC had also reviewed A’s arguments based on the Zambrano principle, and the court agreed with A’s contention that the SIAC used the incorrect criteria in its assessment of the Zambrano principle (Ruiz Zambrano v Office Nationale de l’Emploi (C-34/09) [2012] QB 886).
In A’s case, his children had a basic right to exercise the substance of the rights conferred on them by virtue of their EU citizenship, which included the right to remain in the UK. They were dependent on A. ‘The effect of the Secretary of State’s decision is that they were compelled to leave the UK’, they said, because they had in fact left the UK for Turkey, despite the ‘obvious advantages’ of staying in the UK.
However, the Court determined that due to a lack of material, the SIAC would have struggled to apply the correct multifactorial test. In VM v Secretary of State for the Home Department [2017] EWCA Civ 255, a deportation case, Sales LJ had held that the Zambrano principle only applies in cases in which the children are ‘entirely dependent on the excluded person’ so that they will ‘inevitably’ have to leave the EU.
On the authorities, the test was whether there was ‘an entire dependency’ of the relevant child on the person concerned. In this case, there was no such dependency ‘because’ they could stay in the UK with their mother, who, as a British citizen, had a right to be here.
In this instance, the SIAC found that the same logic applied to A. History demonstrated that his children were not ‘entirely dependent’ on him considering they had resided in a different country to him between July 2014 and October 2015.
NB: The court noted that the intrinsic value of citizenship should not be underestimated. The children have rights as citizens that they would be unable to exercise if they migrated to another nation. They would forego the benefit of growing up and receiving an education in their own nation, “with their own culture and language.”
The Zambrano principle is not absolute:
The Court held that even if the Zambrano test was fulfilled, the SIAC would have been compelled to declare that any Zambrano right was outweighed by national security considerations, using the framework stated in Robinson (Jamaica) v Secretary of State for the Home Department [2020] UKSC 53.
Outcome:
The first finding is that A posed a significant risk to national security, and that his background as a military commander, network of contacts, and use of fatal force (even if in self-defence) are all relevant to the extent of that risk.
The second finding comprises two components. Firstly, SIAC determined that there was a logical link between the harm posed by A and the procedures taken to combat that threat (decision 2).’It has not been shown that the threat could satisfactorily have been addressed by any means that would have had less of an impact on [A]’.
Secondly, SIAC determined that the legitimate aim of the Secretary of State was to safeguard national security, and that there was a reasonable relationship between that aim and decision 2. As such, ‘there was no measure less intrusive to family life that she could have taken to address that assessed risk’, having considered the impact on family life.
SIAC, on the other hand, found that ‘…the result of decision 2, is that his wife and children, who were otherwise residing in the United Kingdom and were entitled to remain in the UK as British citizens, have departed the UK.’
SIAC also concluded that decision 2 was ‘a significant interference with the right of each family member to respect for private and family life.’ but considered the relatively short period for which the family had been living in the UK. SIAC did not find that it was anything other than in the best interests of the children to be living with both parents.
It was determined that SIAC could not have reasonably reasoned on the circumstances of this case that the children’s best interests and British citizenship could have outweighed the public interest, especially because they were all dual nationals and there was no determination that they would not be safe in Libya. It was determined that if this point was remitted to SIAC, the outcome would be inevitable, and thus any error of law is therefore, immaterial.
Conclusion.
The Court of Appeal dismissed the appeal in L3 v Secretary of State for the Home Department [2022] EWCA Civ 1357.
Jenny