The applicant challenged a decision depriving him of his British citizenship and excluding him from the United Kingdom because of his alleged involvement and link to terrorist-related activities. After failing in his appeals to the High Court, Court of Appeal and the Special Immigration Appeal Tribunal, the applicant complained to the European Court of Human Rights (‘the Court’) under Articles 8 and 14. The Court rejected all of the applicant’s complaints, finding them to be manifestly ill-founded, and declared the application inadmissible.
- British Nationality Act of 1981, §40(2)
- Special Immigration Appeals Commission Act of 1997, §2B
- Special Immigration Appeals Commission (Procedure) Rules of 2003, Rule 4(3)
- Special Immigration Appeals Commission Act of 1997, §7
- The Crown Prerogative: Common law power to exclude a person from the United Kingdom
European Union Law:
- Janko Rottmann v. Freistaat Bayern Case C-135/08 of 2 March 2010
The applicant was born in Sudan and arrived in the UK as a child, becoming a naturalised citizen in 2000. In 2009 the applicant was arrested and charged with a public 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 together with two extremist associates to Somalia 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” (§6). Subsequently the Secretary of State notified the applicant of her decision to exclude him from the UK under the Crown’s common law prerogative power due to his involvement in “terrorism-related activities” and “links to a number of Islamic extremists” (§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 precedent the UK had a positive obligation to make arrangements for his return 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” (§13).
After the judicial forums rejected the applicants complaint, and in light of the Secretary of State’s certification that the decision regarding the applicant was taken wholly or partly in reliance on non-public information, the Special Immigration Appeal Tribunal (‘SIAC’) reviewed the applicant’s amended complaints. In submissions to the SIAC the applicant argued, inter alia, that he had evidence demonstrating that he did not pose a risk to national security, and that he had been unable to participate meaningfully in the proceedings from Sudan.
This tribunal also rejected the applicant’s complaints. Since the Special Advocates did not engage with the substance of the closed national security case, the SIAC “indicated that it would look for the most independent and objective evidence in the closed case and adopt particular caution in drawing inferences adverse to the applicant” (§32). Nevertheless, the SIAC came “to the firm conclusion that K2 has not been frank in his witness statements…,” and that both the open and closed evidence “proved to the civil standard” that K2 was in Somalia with the intent to engage in terrorism-related activities at the relevant time (§§36 and 39).
Regarding the applicants assertion that he was unable to participate meaningfully in the proceedings, SIAC established at the outset “that as an out-of-country appeal was not intrinsically unfair, it was for the applicant to show on the facts that he could not have a fair procedure” (§27). Given this burden, and after considering the evidence carefully, SIAC found that there were “at least three viable means of communication between the applicant, his lawyers and SIAC…” (§28).
Proceedings before the European Court of Human Rights
The applicant complained under Article 8 and Article 14 read together with article 8. First, the applicant claimed that the deprivation of his British citizenship and exclusion from the UK breached his right to respect for his family and private 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 alleges that he was treated differently from how a similarly situated British citizen without a second nationally, or a similarly situated non-national resident, would have been treated.
Judicial Proceedings: Court of Appeal
In the Court of Appeal the Secretary of State addressed the second submission made by the applicant, his claim that the UK had a positive obligation to arrange his return in accordance with the common-law principle of “fairness” and European Union law. The Secretary of State asserted that the applicant was perfectly able to pursue his appeal from Sudan or a safe third country.
The Secretary of State set out the national security case against the applicant in an open statement. The statement alleged that the applicant had left the UK in October 2009 and travelled alongside two named extremists to Somalia, where they engaged in terrorism-related activities linked to Al-Shabaab. Later, in April or May 2010 the applicant travelled from Somalia to Sudan. The National Security Statement also presented evidence that the applicant had engaged in terrorism-related training, fought against forces of the African Union Mission in Somalia and had associated with known extremists in the UK and abroad.
The European Court of Human Rights (‘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.
(A) Alleged Violation of Article 8 of the Convention
I. deprivation of citizenship
Following its precedent, 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 decisions 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]” (§50).
Citing the 1981 Act, the common law prerogative power to exclude 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’” (§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” (§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 the Special Immigration Appeal Tribunal (‘SIAC’), which included representation by counsel and Special Advocates (§55). Addressing the applicant’s complaint head on, the Court determined that the procedural safeguards were adequate, even though the applicant was excluded from the UK.
This conclusion was based on four premises; (i) out-of-country appeals are not necessarily ‘arbitrary’, (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 applicants own actions.
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” (§57).
Secondly, the Court made reference to the fact that domestic courts, including the Court of Appeal and the SIAC, had made their own findings concerning whether the exclusion order resulted in deficient procedural safeguards. Given “the national courts’ comprehensive and thorough examination of the applicant’s submissions on this factual issue, the Court does not consider itself in a position (sic) to call into question their findings that there did not exist any clear, objective evidence that the applicant in this case was unable to instruct lawyers while outside the jurisdiction” (§58).
Thirdly, the Court noted that the SIAC had “sought out the most independent and objective evidence in the closed case and adopted particular caution in drawing inferences adverse to the applicant” (§59). Even from this cautious posture the SIAC still found, inter alia, that “the closed evidence was ‘conclusive’… that the applicant was in Somalia at the relevant time… [and] that it was ‘highly probable’… that his terrorism‑related activities were, at least in part, directly involved with Al Shabaab…” (§59).
Finally, the Court concluded its arbitrary analysis by observing the “fact that the procedural difficulties the applicant complains of were not a natural consequence flowing from the simultaneous decision to deprive him of his citizenship and exclude him from the United Kingdom” but rather the result of the applicant’s decision to flee the country (§60). Because the revocation of citizenship was conducted in accordance with the law, in a timely manner and with sufficient procedural safeguard, the Court 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 (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” (§62).
II. exclusion of the applicant from the UK
In its analysis of the exclusion order the Court was prepared to accept that the applicant’s exclusion from the UK interfered with his private and family life (§66). 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” (§66). And given the “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” (§§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 to the aim pursued – namely the protection of the public from the threat of terrorism.
(B) Alleged Violation of Article 14 of the Convention 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 discrimination claim was rejected for failure to exhaust domestic remedies (§70).
With respect to the second discrimination complaint the Court found that that the applicant “was not denied an in-country right of appeal because he was a British citizen; rather, the reason he did not have an in-country appeal against the decision to deprive him of his citizenship, and the reason he was not present during the judicial review proceedings, was because he had already left the United Kingdom of his own volition…” (§71). The Court noted, for example, that a non-national resident who was out of the country and had his leave to remain cancelled also did not have a right to return to the UK for the purpose of appealing in-person (§71).
The Court held that all of the applicant’s complaints were manifestly ill-founded pursuant to Article 35 § 3(a) of the Convention. Accordingly, the Court unanimously declared the application inadmissible.
Law of Nations Blog: Terrorism and citizenship: Strasbourg and the case of K2, at https://lawofnationsblog.com/2017/04/06/terrorism-citizenship-strasbourg-case-k2
Just Security: Keeping K2 in Perspective, at https://www.justsecurity.org/38647/keeping-k2-european-human-rights-court-decision-citizenship-stripping-perspective/
- Rottmann v. Freistaat Bayern, 2 March 2010, CJEU, C-135/08  ECR II-05089;
- I.R. and G.T. v. the United Kingdom (dec.), nos. 14876/12 and 63339/12, §§ 28-35, 28 January 2014;
- Karassev v. Finland (dec.), no. 31414/96, ECHR 1999-II;
- Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 77, ECHR 2002-II;
- Savoia and Bounegru v. Italy (dec.), no. 8407/05, 11 July 2006;
- Genovese v. Malta, no. 53124/09, § 30, 11 October 2011;
- Ramadan v. Malta, no. 76136/12, § 85, ECHR 2016;
- Söderman v. Sweden [GC], no. 5786/08, § 102, ECHR 2013;
- Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49, 20 October 2011;
- Abdul Wahab Khan v. the United Kingdom (dec.), no. 11987/11, § 33, 28 January 2014; and
- De Souza Ribeiro v. France [GC], no. 22689/07, § 77, ECHR 2012.