14
K2 v. THE UNITED KINGDOM DECISION
to 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.
58. Secondly, the Court notes that in the present case the applicant was
able to judicially review the decision to exclude him from the United
Kingdom and in those proceedings one of his main arguments was that his
exclusion would prevent him from participating effectively in the appeal
against deprivation of citizenship. He was also permitted to raise this
argument as a preliminary issue before SIAC. SIAC, having carefully
considered the open and closed material before it, concluded that there were
a number of means by which the applicant could safely communicate with
his lawyers, and that his fears relating to the interception of these
communications were, in any case, unfounded (see paragraphs 28-29
above). This conclusion was not inconsistent with the findings of the High
Court and the Court of Appeal in the judicial review proceedings. The High
Court did not reach any conclusion on the applicant’s ability to
communicate with his lawyers from Sudan, since it found that he could
travel to a safe third country (see paragraph 13 above). Insofar as the Court
of Appeal considered this point, it noted that the Secretary of State had put
forward “a substantial case to the effect that the applicant would be
perfectly able to pursue his appeal from Sudan” (see paragraph 16 above).
In light of the national courts’ comprehensive and thorough examination of
the applicant’s submissions on this factual issue, the Court does not
consider itself in a positon 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.
59. Thirdly, it is apparent from SIAC’s judgment of 22 December 2015
on the substance of the applicant’s case that despite it having found “no
good reason why he could not engage in the appeal and fully instruct his
lawyers” (see paragraph 31 above), in view of the fact that the Special
Advocates were not engaging with the closed national security case, it
sought out the most independent and objective evidence in the closed case
and adopted particular caution in drawing inferences adverse to the
applicant (see paragraph 32 above). However, even following this cautious
approach, it found that the closed evidence was “conclusive” (reaching the
criminal standard of proof) that the applicant was in Somalia at the relevant
time and that he had travelled there in the company of extremists to engage
in terrorism-related activities; that from the closed evidence it was
“probable” that he fought against AMISOM forces; that it was “highly
probable” (also reaching the criminal standard of proof) that his
terrorism-related activities were, at least in part, directly involved with
Al Shabaab; and that there was conclusive closed evidence (again reaching
the criminal standard) that he had established associations with known
extremists in the United Kingdom and overseas (see paragraph 32 above).