Smith (respondent) v The Secretary of State for the Home Department (appellant)
Tuesday 21 February 2023
SSHD’s appeal against the decision of SIAC dated 7/5/21 on a preliminary issue. On 31/12/19, the SSHD served on “S” a Decision to Make an Exclusion Order on the grounds of public security. It is alleged that “S”, an Irish national, travelled to Syria and is aligned with ISIL/Daesh. The source of the SSHD’s exclusionary powers relating to EEA nationals is reg 23(5) of the Immigration (EEA) Regs 2016. It was common ground that if “S” was a British citizen the exclusion notice would be ultra vires. Reg 2(1) defines “EEA national” as a national of an EEA State who is not also a British citizen. Accordingly, Irish nationals can be excluded but not those with dual nationality. “S’s” case before SIAC was that she was entitled to be treated as a British citizen because, had her parents been married at the time of her birth, British citizenship would have ensued automatically. The fact that they were not was a happenstance for which “S” was not responsible and thus she was entitled to be treated as a British citizen by reason of Article 14 ECHR read in conjunction with Article 8.