K2 v. United Kingdom

Parties (including notable third parties)

K2 (Applicant); The British Government (Respondent)

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Summary of Facts

The Applicant was born in Sudan and arrived in the UK as a child, becoming a naturalised British citizen in 2000. In 2009, the Applicant was arrested and charged with a public order offence arising from his participation in protests against Israeli military action in Gaza. Before he was required to surrender to his bail, the Applicant fled the UK. The Applicant claims he travelled directly to Sudan, however, the Home Department and the Security Service assert that he first travelled to Somalia with two extremist associates and engaged in terrorism-related activities.

In a 2010 letter, the Secretary of State notified the Applicant of her intention to deprive him of his citizenship under the British Nationality Act of 1981, on the grounds that to do so would be ‘conducive to the public good’ (paragraph 6). Subsequently the Secretary of State notified the Applicant of her decision to exclude him from the UK due to his involvement in ‘terrorism-related activities and ‘links to a number of Islamic extremists’ (paragraph 7).

These decisions were challenged by the Applicant in the High Court and the Court of Appeal, both of which rejected the complaints. Inter alia, the Applicant argued that under both the common-law principle of ‘fairness’ and European Union case-law (Rottman) the UK had a positive obligation to return him to UK so that he could instruct his lawyers and appear personally at the hearing. Rejecting this contention, the High Court found that it was ‘“highly doubtful” that EU law imposed any requirement on Member States to permit a non‑EU citizen to be physically present… [and] on balance, he could obtain a Sudanese passport and travel to a safe third country’ (paragraph 13). The Applicant further submitted that both the decision to exclude him and to refuse his return to the UK for judicial proceedings unlawfully discriminated against him, which were rejected by both Courts. The Supreme Court refused the Applicant’s application for permission to appeal in 2013.

Subsequently, due to the sensitive nature of the evidence used in the Secretary of State’s decision, the Special Immigration Appeal Tribunal (‘SIAC’) reviewed the Applicant’s amended complaints. In submissions to the SIAC the Applicant argued, inter alia, that he did not pose a risk to national security, and that he had been unable to participate meaningfully in the judicial proceedings from Sudan. However, the tribunal dismissed the Applicant’s complaints, finding enough evidence to conclude he intended to engage in terrorism-related activities and ruled that the appeal process was fair, noting he had ways to communicate with his lawyers.

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Legal Arguments

Legal arguments by the Applicant

The Applicant complained under Article 8 ECHR and Article 14 read together with Article 8 ECHR. First, the Applicant claimed that the deprivation of his British citizenship and exclusion from the UK breached his right to respect for private and family life and was an attack on his reputation. Pointing to the limited disclosure of the national security case the Applicant also argued that there were inadequate procedural safeguards to fully respect his Article 8 rights.

Finally, under Article 14 read together with Article 8 the Applicant alleged that he was treated differently from how a similarly situated British citizen without a second nationality, or a similarly situated non-national resident, would have been treated.

Legal arguments by the Respondent

Other than the evidence submitted, there are no new arguments recorded to have been submitted by the British Government during the ECtHR proceedings. In the Court of Appeal proceedings, the Secretary of State asserted that the Applicant was perfectly able to pursue his appeal from Sudan or a safe third country.

Outcome

The Court addressed the complaint in two parts, first considering the alleged violation of Article 8 and then the alleged violation of Article 14 read together with Article 8. The Article 8 analysis was also divided into two parts, the first on the deprivation of citizenship and the second on the exclusion from the UK.

On Deprivation of Citizenship

Following its established methodology, the Court divided its analysis of the deprivation of citizenship into two parts: whether the revocation was arbitrary, and what the consequence of the revocation were for the Applicant. To determine the decision’s arbitrariness the Court considered ‘(i) whether the revocation was in accordance with the law; (ii) whether it was accompanied by the necessary procedural safeguards, including whether the person deprived of citizenship was allowed the opportunity to challenge the decision before courts affording the relevant guarantees; and (iii) whether the authorities acted diligently and swiftly [numerals added]’ (paragraph 50).

Citing the 1981 British Nationality Act, the common law prerogative power to exclude the Applicant, and the findings of the High Court and Court of Appeal, the Court quickly dismissed any suggestion that ‘the decision to deprive the Applicant of his citizenship was anything other than “in accordance with the law”’ (paragraph 52). Moreover, the Court noted that ‘there is no evidence of any failure on the part of the Secretary of State to act diligently and swiftly in deciding to deprive the Applicant of his citizenship’ (paragraph 53).

Therefore, the central issue for the Court to consider under the arbitrary analysis was the procedural safeguards required by Article 8. The Court began by pointing out the Applicant’s statutory right of appeal to SIAC, which included representation by counsel and Special Advocates (paragraph 55). The Court determined that the procedural safeguards were adequate, even though the Applicant was excluded from the UK during the proceedings.

This conclusion was based on four premises; (i) an out-of-country appeal is not inherently arbitrary, as Article 8 does not impose a positive obligation to facilitate return for appeal, barring ‘clear and objective evidence’ of an inability to instruct lawyers abroad (paragraph 57)(, (ii) reviewing tribunals should be given appropriate deference, (iii) the SIAC appeal was procedurally and substantively cautious in drawing adverse inferences against the Applicant, and (iv) the procedural difficulties complained of arose from the Applicant’s own actions in fleeing the UK.

Regarding the Applicant's argument that an out-of-country appeal was inherently arbitrary, the Court noted that such a conclusion would ‘impose a positive obligation on Contracting States to facilitate the return of every person deprived of citizenship while outside the jurisdiction in order to pursue an appeal against that decision’ (paragraph 57).

On the second and third points, the Court noted that domestic courts had already examined whether the exclusion order compromised procedural safeguards and found no clear evidence that the Applicant was unable to instruct lawyers while abroad. The Court also observed that SIAC relied on independent evidence and exercised caution yet still concluded that the Applicant was in Somalia at the relevant time and was likely involved in terrorism-related activities.

Finally, the Court noted that the Applicant’s procedural difficulties ultimately stemmed from his decision to flee the UK, not from the citizenship revocation and his exclusion. Because the revocation of citizenship was conducted in accordance with the law, in a timely manner and with sufficient procedural safeguard, the Court subsequently held that the revocation was not arbitrary.

Turning to the second issue – the consequences of the revocation of citizenship for the Applicant – the Court observed that he was not rendered stateless by the measure (he had obtained a Sudanese passport), he had left the UK voluntarily, his family could freely visit Sudan, and his own natal family visited him ‘reasonably often’ (paragraph 62). Accordingly, the Court held that this part of the application should be considered manifestly ill-founded and rejected.

On exclusion from the UK

In its analysis of the exclusion order, the Court accepted that the Applicant’s exclusion from the UK interfered with his private and family life. Nevertheless, the Court affirmed the domestic courts judicial determination that the exclusion ‘did not have a significant adverse impact on his right to respect for his family and private life or upon his reputation’ (paragraph 66). Furthermore, given ‘SIAC’s clear findings concerning the extent of his terrorism-related activities, the Court does not consider that the decision to exclude the Applicant from the United Kingdom was disproportionate to the legitimate aim pursued: namely, the protection of the public from the threat of terrorism’ (paragraphs 65 and 66). As a result, even if the UK had interfered with the Applicant’s Article 8 rights, such an interference would have been legitimate and proportionate to the aim pursued – namely the protection of the public from the threat of terrorism. Accordingly, the Court held that this part of the application should also be considered manifestly ill-founded and rejected.

On Article 14 read together with Article 8

The Applicant alleged two instances of discrimination: that he was treated differently from British citizens considered a threat to national security who did not have a second nationality, and from non-national residents considered a threat to national security. The first claim was rejected by the Court for failure to exhaust domestic remedies.

With respect to the second discrimination complaint, the Court found the reason the Applicant lacked an in-country appeal was not discriminatory but rather because he had voluntarily left the UK, stressing that this was consistent with how non-nationals abroad are treated. On that basis, the Court rejected the Article 14 claim as manifestly ill-founded.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Regional	European Convention on Human Rights	Articles 8, 14
Domestic	The Crown Prerogative	Common law power to exclude a person from the United Kingdom
Domestic	British Nationality Act 1981	Section 40(2)
Domestic	Special Immigration Appeals Commission Act 1997	Section 7

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

No commentary available.