D5 & Ors v Secretary of State for the Home Department

SIAC recorded, in paragraph 1 of judgment 1, that Ds are all nationals of Afghanistan. D6 and D7 are brothers. D5 is their paternal uncle. They came to the United Kingdom between 2001 and 2007. They each claimed asylum and D5 and D6 were later naturalised as British citizens. On 3 September 2020 when D7 was outside the United Kingdom, the Secretary of State decided to exclude D7 from the United Kingdom on the grounds that it would be conducive to the public good (‘decision 1’). On 30 November 2020, when D5 and D6 were outside the United Kingdom, the Secretary of State decided to deprive them of their nationality on the grounds that that would be conducive to the public good, because of their involvement in SOC (‘decision 2’). The Secretary of State certified that she had taken each of those decisions in reliance on material which, in her opinion, should not, in the public interest, be made public (paragraph 2). The effect of those certificates was that any right to challenge the decisions would be heard by SIAC.

D7 applied to SIAC for a review of decision 1 under section 2C(2) of the Act. The principles which apply on an application for judicial review explicitly apply to such an application (section 2C(3) of the Act). D5 and D6 appealed against the decision 2 under section 2B of the Act.

SIAC heard evidence from D5, D6, N (D5’s wife), and six other relations of the Ds, of varying degrees of proximity to Ds. Those witnesses were cross-examined. SIAC also had witness statements from five other relations of Ds, a person who worked for D7, and a chartered legal executive, Bahar Ata. SIAC took that evidence into account. SIAC next observed, in paragraph 5, ‘For the reasons we set out below [and with the exception of Ms Ata] we are satisfied that D5 and D6, and the witnesses they called to give oral evidence, lied on material issues. Their witness evidence (except where subject to credible independent support) is not reliable. No reliance can be placed on their evidence that they were not involved in the conduct which is alleged against them’.

D5 is from a big family. When he arrived in the United Kingdom in 2001, his wife and children stayed in Afghanistan. He claimed asylum. He told a lie in the course of making that claim. His wife said that he began to send her £500 a month soon after he arrived, and before he had any permission to work. She could not explain where it came from (paragraph 9). D6 arrived in the United Kingdom in 2004. D5 involved D6 (and his other nephews) in his business, and helped them to set up their own. D5 and D6 were close. D7 was encountered by Home Office on 13 February 2007. He claimed to have entered the United Kingdom clandestinely three days earlier. He claimed that he was at risk from the Taliban in Afghanistan. He was given discretionary leave to remain on 12 October 2011. He was given indefinite leave to remain in July 2018. D7’s wife and children are in Afghanistan. He applied in November 2019 for entry clearance for his wife and children. The Secretary of State refused that application on the grounds that D7’s wife had not sat the necessary examination in English, but a proxy had done it in her place, and D7 had exaggerated his earnings. The Secretary of State’s assessment is that D7 left the United Kingdom in January 2020 and might be in Finland.

In paragraphs 12-20 of judgment 1, SIAC listed nine relations of Ds who all arrived unlawfully in the United Kingdom when they were teenage boys, or 12 years old (in two cases). In short, most, if not all of them, then worked for Ds.

In a section of judgment 1 headed ‘The lies of D5 and D6’, SIAC described lies which D5 and D6 admitted telling in the course of their asylum claims. SIAC did not accept their evidence that the lies were the fault of interpreters. SIAC found that D5 had ‘helped to orchestrate the untruthful accounts’ that were given by others. The fact that the lies were told did not mean that Ds were engaged in the conduct alleged by the Secretary of State, but it did affect their credibility (paragraphs 21-24).

In paragraphs 25-41, SIAC summarised the evidence about the execution of search warrants on 9 July 2018, a police stop of K and O on 27 September 2019, what emerged from social services records, a visit by police and officers from the social services department of the local authority to five shops associated with Ds, an interim sexual risk order made in May 2020, an undercover operation by the NCA in 2020, and the departure of D5 and D6 to Kabul via Dubai on 8 November 2020.

I will describe some of the salient features of that account. When police executed the search warrants at D5’s and D6’s homes and at two shops, they made nine arrests for immigration offences, and one for the possession of drugs with intent to supply. They seized £12,000 in cash and 30 mobile phones. K and O, two of the relations who were listed in paragraphs 12-20 of judgment 1, were arrested for offences relating to indecent images of children (paragraph 27). SIAC then summarised K’s explanation for what was found on his mobile phone (also paragraph 27).

When K and O were stopped, O tried to hide a number of bank cards and about £800 in cash. He also had receipts for money transfers to the family. More than £4000 had been transferred in one week in August 2019. The largest individual transfer was of £2850. K had a letter which he said he was sending to someone to ‘come and collect his money at the prison’. When K was arrested, about £250 was taken from him. He did not know how to get it back when he was released from prison. Eventually he arranged for a 16-year old boy to collect the money, who was later prosecuted for paying cash to smuggle people into the United Kingdom. O gave various accounts about the £800 which was found on him. K did not know that O had that sum with him. He eventually said that his brother gave him the money when he went to Afghanistan, and would take it back when he returned. He did not remember the reason for the transfer of £2850.

Social services records showed that there were ‘persistent suspicions’ that D5 and D6 were exploiting the children who were associated with them, ‘potentially including sexual abuse’. Officers from that department kept a close eye on D5 and D6 for years. None of the children who were looked after by D5 and D6 made any complaint that they had been sexually abused by anyone. Despite the extent of that monitoring, there was no OPEN evidence that D5 or D6 was involved in sexual abuse (paragraph 33).

When the police raided the shops, they found F using a broom in a shop run by D5. F was one of the children listed in paragraphs 12-20. He had arrived unlawfully in 2019 when he was 14. He was 14 in February 2020. He said he did not know D5 and denied working in the shop, or that anyone had forced him to work there. In paragraph 80, SIAC rejected F’s account as ‘incredible’.

A telephone ‘attributed’ to A, another of those listed in paragraphs 12-20, was seized by the police. They found one indecent image on it. A was arrested and the police seized another device. They found an indecent video of a child. An interim sexual risk order was sought and granted. After further investigation the image could not be found, possibly because it was stored, not in the device, but in the cloud. The order was withdrawn.

The undercover operation was between February and November 2020. Two undercover officers, Mark and George, posed as international lorry drivers. After four preliminary meetings, they met D5 and D6 on 24 September 2020. On 8 October 2020, D6 told George that he wanted George to smuggle people from Europe into the United Kingdom: one to three people on each run, with two to three runs a month. £2500 would be paid per person. Albanians would be paying. D6 would meet the immigrants off the lorry and would pay George himself. D6 told George that he was making good money. There were further meetings in October 2020. A plan was made for the first trip on 9 November 2020. D6 then cancelled the plan on the grounds that he had not been paid up front.

In paragraph 40, SIAC said that, in his evidence, D5 ‘simply would not accept that D6 was responsible for the criminal conduct that resulted in a 8 year custodial sentence’. D5 said ‘someone had put him in a dream and they gave him an injection and they say whatever coming out of his mouth’. SIAC recorded D6’s evidence that George had first raised the question of people smuggling. ‘That was not something that he had raised before, either in his written statement or (so far as we can tell) in the Crown Court proceedings. It was just another lie’ (paragraph 41).

D5 and D6 left the United Kingdom for Kabul on 8 November 2020. They were due to come back on 3 and 24 December 2020, respectively.

In paragraphs 43-47, SIAC described the process leading up to decision 1 and decision 2. On 19 August 2020 the NCA sent a submission to the Home Office explaining that D7 was involved in SOC, that his presence in the United Kingdom was not conducive to the public good and that his exclusion was justified on the grounds of criminality. SIAC gave three particulars of that conduct. The first was trafficking for labour exploitation. D7 was a member of an organised crime group (‘OCG’), which was trafficking young and vulnerable people into the United Kingdom for labour exploitation. The OCG used child labour in its businesses. The second was that it was assessed that the OCG was involved in trafficking for sexual exploitation and abuse. The third was that the OCG was involved in money laundering. The submission referred to the activities on 9 July 2018 and on 12 February 2020.

The NCA also prepared a submission recommending that D5 and D6 be deprived of their British nationality. The allegations were similar to the allegations about D7. The submission referred to the undercover police operation including the events of 24 September 2020.

Officials then made a submission to the Secretary of State about D7. It said that he was involved in ‘organised immigration crime such as trafficking and smuggling vulnerable people and children to the UK for modern slavery and sexual exploitation’. On 3 September 2020, the Secretary of State decided to exclude D7 from the United Kingdom. The decision letter, dated 3 September 2020, said that the Secretary of State had decided personally to direct D7’s exclusion from the United Kingdom ‘on the grounds that your presence here would not be conducive to the public good’. No further reasons were given. The letter said that the Secretary of State had certified the decision and that any review of the decision would be by SIAC.

On 30 November 2020, SIAC said, ‘orders were made under section 40(2) [of the BNA] depriving D5 and D6 of their British citizenship “on the grounds of conduciveness to the public good”. No further explanation was given, save that the Secretary of State was satisfied that the orders would not make D5 and D6 stateless’ (paragraph 48).

D5 and D6 nevertheless returned to the United Kingdom clandestinely in June and September of 2021, having made (D6) two or one (D5) earlier failed attempts to enter.

D5 and D6 were prosecuted for immigration offences as a result of the undercover operation. Count 1 charged D6 with a conspiracy to assist unlawful immigration. The prosecution relied on the conversations between D6 and George and Mark in 2020; in other words, with conduct before the decision of the Secretary of State. Count 2 charged D6 with a conspiracy to assist D5’s unlawful entry. Count 3 charged D5 with illegal entry. Counts 2 and 3 related to conduct after the Secretary of State’s decision. D5 and D6 were convicted.

In paragraph 52, SIAC quoted what the sentencing judge said about count 1. She described the ‘enterprise’ as ‘sophisticated’. The exact numbers were not known; nor was the amount of the profit made by D6; but each migrant had paid between £8000-£9000, about £2,500 of which was paid to the lorry driver. The entry was for strangers, not family members. The period of the indictment was about 6 weeks. The intention was to use burner phones to conceal what was going on and to destroy any evidence. D6 was sentenced to eight years’ imprisonment on count 1, and received a consecutive sentence of two years on count 2. D5 was sentenced to five years’ imprisonment.

SIAC described the legal framework in paragraphs 54-55, and the policy framework in paragraphs 56-58. It summarised the statutory provisions about the NCA in paragraph 59 and those about trafficking in paragraphs 60-61.

It recorded that it had received extensive submissions about its jurisdiction, and referred to the relevant cases, and summarised them in paragraphs 62-66. It recorded Mr Grieves’s submission that Rehman and Begum were national security cases and could be distinguished in a case about SOC. Whether Ds had been involved in SOC related to past events, and not to future risk. SIAC disagreed with that submission and explained why in ten points, which it listed in paragraph 67. They included that all the relevant decisions were made because they were conducive to the public good and the statutory scheme did not distinguish between different facets of the public good, either as respects the Secretary of State or an appeal to SIAC. The ultimate question for the Secretary of State was whether deprivation was conducive to the public good in every such case. The facets of the public good were not ‘disjunctive or mutually exclusive’. SIAC’s limited role derived from the fact that the decision about conduciveness was entrusted to the Secretary of State and not to SIAC, and from the principles of democratic accountability and institutional capacity. Those principles applied just as much to SOC as to national security. On the first, SIAC referred to the Secretary of State’s role in deciding the strategic priorities of the NCA, and her supervision of the operation of the NCA; on the second, it referred to the functions of the NCA, and its relationship with the Secretary of State. There was, in any event, no sharp distinction between the different facets of the public good which might be engaged in a deprivation decision. In SOC cases, just as much as in national security cases, ‘future risks are likely to be assessed in the light of information relating to past events. The nature of the risks is similar in both cases. The nature of the information is also similar in both cases, as is the process of the collection of the information and its assessment’.

Those factors led SIAC to reject the submission that the Secretary of State must prove the facts on the balance of probabilities. ‘What is at issue is a holistic assessment as to whether action would be conducive to the public good. That assessment falls to be reviewed on public law grounds in order to determine whether it was outside the range of assessments that a reasonable decision-maker could make…’ (paragraph 68). It did not follow from the fact that the relevant decisions were all national security cases that the approach taken in those authorities did not also apply in other conduciveness cases, for the reasons already given (paragraph 69).

In paragraph 74, SIAC held that the OPEN material was a ‘sufficient basis’ for the assessment that Ds were all ‘members of an OCG that was engaged in smuggling people into the United Kingdom in breach of immigration rules’. It gave three broad reasons for that conclusion in paragraph 74 of judgment 1. Those included that D6’s conviction, which post-dated the decision, but related to conduct before the decision, and established ‘to the criminal standard of proof, that he was involved in a criminal and commercial conspiracy to smuggle people into the UK’, and D5’s presence when some of the conversations between D6 and George and Mark took place, leading to an assessment that he played a ‘subordinate role in the conspiracy’. There was also an inference that each of the Ds was involved in the unlawful smuggling of people into the United Kingdom in the light of ‘the sheer number of people with connections to the appellants who have come to the UK unlawfully’, the number of lies told by those people which fitted with lies told by the appellants, the fact that many of those people lived with, or near, the appellants, and the fact that many of them ended up working for in shops which were owned or controlled by D5.

SIAC did not need to make a finding about the 100 suitcases, but the finding of a large number of suitcases (whether 35 or 100) was not inconsistent with people smuggling (paragraph 75). The evidence ‘convincingly demonstrates’ involvement by the appellants and their associates in organised immigration crime’. That was not sufficient to justify the Secretary of State’s ultimate decisions, because the gravamen of the submissions to the Secretary of State was that they were involved in ‘trafficking and smuggling vulnerable people and children to the UK for modern slavery and sexual exploitation’. If there was ‘no sufficient basis’ to support those allegations, SIAC could not uphold the decisions of the Secretary of State, making it necessary to quash the exclusion decision in D7’s case, and to allow the appeals of D5 and D6, so that the Secretary of State could reconsider their cases (paragraph 76).

For those reasons, it was not necessary separately to consider the allegations of money laundering, which were supported by the OPEN materials (paragraphs 77 and 78).

In paragraphs 79 and 80, SIAC explained why the OPEN evidence did not support such assessments, despite the inferences to which that evidence did give rise. The OPEN material gave grounds to suspect that F and others were subjected to labour exploitation, but no more than that. SIAC took into account the ‘powerful arguments’ relied on by Ds to support the submission that the people who had been smuggled in had, nevertheless, not been exploited for either purpose (paragraph 81). SIAC also took into account ‘the inherent difficulties in investigating suspicions of trafficking’ (paragraph 82). If the CLOSED material was taken into account, however, the material as a whole provided ‘a sufficient basis on which the Secretary of State was entitled to reach the central assessments that formed the basis of the deprivation and exclusion decisions’ (paragraph 83).

In paragraphs 88-94, SIAC gave reasons for rejecting the argument that decisions were unlawful because the appellants were not given the opportunity to make representations before they were made. It also rejected a submission that Ds could simply have been arrested instead of being deprived of their citizenship or excluded. That submission had ‘no merit’. For a start, they were outside the United Kingdom and could not have been arrested. The Secretary of State relied on material which could not be disclosed in the public interest. ‘Arrest would have been no answer at all’. Nor was further investigation necessary (paragraph 91).

In paragraphs 95-99 SIAC rejected an argument that a comment in a submission to the Secretary of State dated 13 May 2020 was a statement of the Secretary of State’s policy. Andrews LJ refused permission to appeal to raise that argument and I say no more about it.

The Appellants’ third ground of challenge was that the factual case presented to the Secretary of State was materially flawed. For example, a ‘key factual assertion’, that none of the children who were trafficked to the United Kingdom was related to the Appellants, was demonstrably wrong. SIAC described other related arguments in paragraph 101. SIAC considered those arguments in paragraphs 103-107. The legal test required the Appellants to show that there was a public law error in the decisions. While SIAC rejected part of the Secretary of State’s answer to the submission (paragraphs 102 and 103) it nevertheless held, on the basis of the reasoning in its CLOSED judgment, that the Secretary of State was entitled to reach the relevant conclusions. The errors asserted by the Appellants did not, individually, or collectively, ‘invalidate’ the Secretary of State’s decisions. The core mistake (that the children were not related to the Appellants) was ‘not material to the assessment’. The ‘central element’ of the assessment ‘did not depend in any way on the question of whether or not the children were or were not related to’ the Appellants (paragraph 105). The Secretary of State could have been given more details of the various investigations, but there was a ‘balance to be struck’. The material before the Secretary of State was ‘sufficient’, and did not give a ‘skewed or unfair’ account of the material which mattered. The Secretary of State was ‘aware that a local authority Children’s Services had been involved, that trafficking concerns had arisen, but that no action had ever been taken to prevent the appellants from fostering children’. SIAC held that there was no need for the Secretary of State to know about various other points (paragraph 106).

In paragraphs 113-115, SIAC considered the parties’ written submissions about the judgment of this court in U3 (CA), which had been handed down after SIAC had prepared its judgment in draft and before it handed it down. It rejected a submission that U3 (CA) showed that the approach in Begum only applies in national security cases. It rightly said that this court had not addressed that question, because it was not before it. SIAC had, in accordance with U3 (CA), made findings of fact to the extent that they were appropriate. Apart from a couple of changes, SIAC had not found it necessary to revise judgment 1 in the light of U3 (CA).

I will refer to SIAC’s OPEN judgment in C9’s case as ‘judgment 2’. C9 was born in Albania. He entered the United Kingdom unlawfully in December 1999. He gave a false name to the police, and then claimed asylum in a second false name. He claimed, falsely, to be Kosovan. The Secretary of State refused his claim, but he appealed successfully, and was given indefinite leave to remain in February 2002. He applied successfully to be naturalised as British citizen. He became a British citizen in 2007. He and his wife have four children who were all born in the United Kingdom and are British citizens. His true identity came to light when his mother applied for a family visa. The Home Office wrote to him in 2018 to say that they were considering depriving him of his nationality under section 40(3) of the BNA. He replied, and no further action was taken.

On 23 September 2020, when the Secretary of State knew that C9 was outside the United Kingdom, the Secretary of State sent C9 a notice of her intention to deprive him of his nationality, on the grounds that that was conducive to the public good. The reason for the decision was that ‘it is assessed that you are a British/Albanian dual national who is involved in [SOC], operating from within the UK’. The Secretary of State certified that the decision was taken in part on reliance on information which should not be made public in the interest of national security and because the disclosure would be contrary to the public interest. A deprivation order was made and served on the same day.

In paragraphs 4-7, SIAC summarised the grounds for the decision. It was based on a submission from the NCA. The OPEN version said that Albania OCGs operate ‘highly efficient, reliable and ruthless co-operative “cells” which are involved in a range of criminal activities, including organised immigration crime…and class A drug trafficking. These generate considerable cash proceeds which are smuggled or transferred out of the UK’. It was assessed that C9 was involved in arranging and facilitating organised immigration crime from the near continent to the United Kingdom in heavy goods vehicles (‘HGVs’) and small boats. C9 was said to have taken control of planned crossings. He was also assessed to have been involved in money laundering, dealing and brokering deals for illegal drugs, and that he might have access to firearms. He had been convicted in Germany, in 2015, of causing grievous bodily harm to an unknown person in 2014. He was given an eight-month sentence of imprisonment, suspended for three years.

The NCA’s assessment was that C9 was ‘a significant criminal facilitator’ with access to a range of criminal associates’. He had ‘a wide reach across a number of serious organised crime areas’ and was ‘known to use violence’. By facilitating the entry of illegal migrants into the United Kingdom, he ‘exploits the vulnerabilities of illegal migrants, risking their lives for his own profit, undermining the UK’s immigration laws and policy and threatening national security’.

On 24 August 2020, the NCA wrote to the Secretary of State, inviting her to wait until C9 left the United Kingdom before depriving him of his British citizenship ‘to ensure maximum operational effectiveness is achieved from the immigration disruption’.

SIAC summarised C9’s four grounds of appeal which were advanced, as it happens, by Mr Grieves. They were that the Secretary of State had acted unfairly in not giving C9 an opportunity to influence the decision before it was made (1), had acted unlawfully by not publishing a particular document as a policy (2), had taken into account irrelevant considerations (3), and had reached a decision which was unreasonable, irrational, disproportionate, arbitrary and contrary to articles 6, 8 of, and article 1 of Protocol 1 to, the European Convention on Human Rights (‘the ECHR’) (4). SIAC detected, and considered, two further grounds of appeal: that the Secretary of State had unlawfully failed to consider whether the allegations against C9 were established on the balance of probabilities (5), and that the Secretary of State had failed to consider whether or not to get a serious crime prevention order (‘SCPO’) against C9 under the Serious Crime Act 2007, and the reasons why Kent Police had decided, after a 15-month investigation, to take no action in relation to cash seized in May 2020 (6).

SIAC heard evidence from C9 by video link from Albania. He was cross-examined ‘at some length’. SIAC had witness statements from three members of his family and from an associate, but they all decided, for medical reasons, not to give evidence at the hearing. The weight which SIAC could therefore give those statements was reduced by the fact that their makers had not given oral evidence. SIAC described its impression of C9, and why it had formed that impression, with graphic examples, in paragraph 12 of judgment 2. He was ‘an unimpressive witness whose evidence could not be regarded as reliable’. SIAC’s view was that C9 ‘was someone who would say whatever he thought would be most immediately useful to him. Having observed and assessed [his] answers in cross-examination, we concluded that we should place no weight at all on [his] evidence save where it was corroborated by other reliable evidence’.

The Secretary of State called two witnesses, the first of whom was not cross-examined. An NCA witness, XZ, was cross-examined in OPEN and in CLOSED. She ‘gave detailed and helpful answers, properly indicating the extent of the NCA’s confidence on particular points. We formed the view that she had a very good understanding of the evidence and the conclusions she drew from it were balanced, well-reasoned and fully supported by the OPEN and CLOSED documents’ (paragraph 13 of judgment 2).

SIAC observed, correctly, that section 40(2) does not require the Secretary of State to make specific findings of fact before depriving a person of his British nationality. The question of what is ‘conducive to the public good’ is, in the first instance, for the Secretary of State. SIAC referred to the guidance for caseworkers, which said that ‘the power will be used in cases of “terrorism, espionage, serious organised crime, war crimes or other unacceptable behaviours’ (judgment 2, paragraph 14).

SIAC referred to the authorities in paragraphs 15 and 16. The authorities gave no guidance about the approach which SIAC should take to assessments of involvement in SOC. This had been a subject of argument. That dispute had been resolved ‘at least at this level’ in Ds’ case, which SIAC considered that it should follow. In any event, SIAC agreed with that analysis (paragraph 18).

The legal dispute did not matter on the facts, as SIAC was able to make findings of fact on the balance of probabilities about key aspects of the Secretary of State’s case, and SIAC considered that it was appropriate to do that. Those findings confirmed the Secretary of State’s assessment. That meant that C9’s challenge failed, regardless which was the correct legal approach (paragraph 19).

SIAC made those findings in paragraphs 20-24. Even if the CLOSED material was left out of account, C9’s answer to the Secretary of State’s case was ‘implausible in the extreme’. SIAC explained why in paragraphs 21 and 22 of judgment 2. The findings on the OPEN material were ‘bolstered’ by the CLOSED material. Even when SIAC took account of the general limitations of CLOSED evidence, it, coupled with the OPEN evidence, enabled SIAC to make, ‘with a high degree of confidence’, eight findings of fact which it listed in paragraph 23 of judgment 2. The details of the supporting evidence, SIAC said, were set out in its CLOSED judgment.

SIAC considered whether C9 should have been given an opportunity to make representations in paragraphs 25-30 of judgment 2. Mr Grieves had made no submissions on this issue, SIAC noted, presumably because it had already been considered by SIAC in other cases.

SIAC referred to Al Jedda v Secretary of State for the Home Department (SC/662008), and to B4 v Secretary of State for the Home Department (SC/159/2018) in which SIAC had held that there was no such right in this statutory scheme. SIAC had retreated somewhat from the reasoning in those decisions, in the light of Begum, in Begum v Secretary of State for the Home Department (No 2) (SC/163/2019). SIAC also referred to the reasoning in D5-7 v Secretary of State for the Home Department. It described SIAC’s reasons in that case as being based on two factors. First, giving the appellants an opportunity to make representations would ‘directly increase the risk that deprivation was designed to reduce, namely that [they] would return to the UK and continue [their] involvement in [SOC]’. Second, it would have been pointless, as the ‘basis for the main case’ against the appellants ‘could only be stated in CLOSED’.

SIAC’s conclusions, in paragraph 30 of judgment 2, were, first, that, unless convinced that it was wrong, it should follow SIAC in B4, and hold that the right to make representations was not excluded by section 40(5) of the BNA. SIAC was not convinced that B4 was wrong. SIAC’s conclusion on this point reflected its interpretation of the reasoning in Begum; that is, in essence, that an appeal to SIAC in a deprivation case is not an appeal on the merits. Second, the Secretary of State was, nevertheless, entitled to wait until a person was outside the United Kingdom before making a decision under section 40 (L1 v Secretary of State for the Home Department [ 2015] EWCA Civ 1410). In such a case, third, it would often be contrary to the interests of national security to allow a person to make representations, since that might precipitate his return to the United Kingdom. Fourth, there was no reason of principle why there should be a different approach in cases involving national security and cases involving SOC. In both cases, the reason for the decision is likely to be that it will promote the public interest by making it more difficult for the person to come into, or stay in, the United Kingdom. This case could not be distinguished from D5-7. The Secretary of State had been specifically advised to not to make the decision until C9 was outside the United Kingdom. If she had given him advance notice of her intentions, it was likely, either, that he would not have left the United Kingdom in the first place, or that he would have returned to the United Kingdom. The public interest was against giving C9 such a right, and natural justice did not therefore require it.

SIAC considered grounds (3) and (4) (see paragraph 84, above) in paragraphs 36-42 of judgment 2. The OPEN and CLOSED evidence, taken together, showed ‘not only that there was an adequate factual basis’ for the Secretary of State’s conclusions, ‘but also that those conclusions were correct on the balance of probabilities’. Those findings ‘supply a strongly compelling public interest reason for depriving [C9] of his citizenship’. Deprivation was ‘in line with’ the Secretary of State’s published policy. There was no common law requirement that the decision be ‘proportionate’. Even if there were ‘the decision in this case would comfortably reach that requirement’ (paragraph 36).

SIAC acknowledged that there was a mistake in the NCA’s submission, because it did not refer to C9’s two middle daughters. SIAC could ‘nonetheless safely conclude that the result would inevitably have been the same’, if the Secretary of State had been told about those two children, for the three reasons SIAC gave in paragraphs 38-40.

SIAC said that the approach to jurisdiction was settled in paragraphs 103-105 of R3 v Secretary of State for the Home Department [2023] EWCA Civ 169; [2023] Imm AR 683. Because C9 was not in the United Kingdom when the decision was made, he could not rely on any rights under the ECHR. The fact that the Secretary of State waited until he was outside the United Kingdom before making the decision made no difference (L1). The deprivation decision did not determine the article 8 rights of C9’s family, because it did not stop him from returning to the United Kingdom; rather, it stopped him returning without leave to enter.

SIAC considered ground (5) in paragraphs 43-48 of judgment 2. Mr Grieves argued that the Secretary of State had to be satisfied on the balance of probabilities that the ‘core allegations’ against C9 were made out. The documents did not specify that standard, but referred, instead, to ‘assessments’, beliefs and suspicions. SIAC rejected that argument for four reasons.

SIAC considered the availability of a SCPO in paragraphs 49-55. It noted that this ground had not been pleaded or referred to in C9’s skeleton argument. Counsel for the Secretary of State cited paragraph 108 of Begum which approved a statement by SIAC in U2 v Secretary of State for the Home Department (SC/130/2016) to the effect that no domestic measure (such as a TPIM) ‘can achieve the assurance of knowing that’ the subject is ‘outside the UK permanently’. Lord Reed added that that statement was not confined to people like U2 who presented the same level of risk. SIAC also quoted paragraph 81 of B4, in which SIAC made similar observation, and concluded that the making of an order was more effective than any other option, and that ‘generally speaking…the making of the order in such circumstances will be necessary and proportionate’.

When Begum and SIAC’S decision in B4 were taken into account, it was ‘unlikely that the possibility of action in the UK short of criminal prosecution will fall into the category of considerations “so obviously material” that failure to have regard to them will make a decision unlawful’. Those were national security cases, but there was no reason why SOC cases should be any different. The restrictions imposed by a SCPO ‘would require highly resource-intensive monitoring and would in general not provide the same level of assurance as permanent exclusion from the UK’. It was also not clear from the statutory provisions whether an application for a SCPO could be based on CLOSED material.

SIAC did not need to, and did not, decide whether the availability of SCPO could conceivably be a mandatory relevant consideration. It decided, on the facts, that this was not a case in which that availability was such a consideration. The NCA’s OPEN assessment dated 24 August 2020 was that if C9 continued to be a British citizen and to live in the United Kingdom, he would ‘continue to facilitate illegal immigration, profiting from this and from his engagement in other associated criminality’. Deprivation would be a ‘visible disruption, which will discredit his position and provide a clear message to his criminal associates that the UK will not tolerate [SOC] and will use immigration disruption measures to prevent further harm to the UK’. Those passages, taken with the advice that the decision should be taken while C9 was outside the United Kingdom ‘to maximise the operational effectiveness of the decision, make it clear that, in the absence of a realistic prospect of prosecution, the NCA regarded exclusion from the UK as necessary to achieve their primary aims’. That being so, ‘rationality did not require them – the Home Secretary – expressly to consider an option which would fail to achieve that result, even if (contrary to the fact) that option were straightforward in legal and practical terms’ (paragraph 55).

The provisions of the 1971 Act which I have summarised above illustrate four points. First, even as early as in the 1971 Act, Parliament was aware that decisions were or would be taken by the Secretary of State on the ground of conduciveness to the public good. Second, Parliament was also aware both that that the phrase covered a potentially wide general field (sections 13(5) and 15(5)), and that it also included three more specific areas (sections 14(3) and 15(3)). Third, the Secretary of State was personally involved in such decisions. Fourth, at that early stage in the development of the immigration appellate system, statutory appeals against these decisions made on those grounds were explicitly barred.

Section 40(2) of the BNA gives the Secretary of State power to deprive a person of his citizenship status if ‘the Secretary of State is satisfied that deprivation is conducive to the public good’. Parliament can be taken to have been aware of the width and nature of concept of what is ‘conducive to the public good’. Parliament entrusted a discretion to the Secretary of State both to decide what is conducive to the public good in the individual case, and to decide whether, in the light of that view, a person should be deprived of his citizenship. Unlike sections 14(3) and 15(3) of the 1971 Act, section 40(2) is not explicit about what might be included in the concept of ‘conducive to the public good’. It is, however, necessary to read section 40(2) with section 40A(2). If a decision is taken wholly or partly on the basis information of the kinds listed in section 40A(2), it is to be inferred that such a decision (that deprivation is conducive to the public good) is based on one or other or a mixture of the interests referred to in section 40A(2). Section 40A(2) therefore shows both that Parliament was aware that some deprivation decisions would be taken ‘wholly or partly in reliance on information which in his opinion should not made public in the interests of’ the three matters which are listed in section 40A(2)(a)-(c), and has authorised the Secretary of State to take such decisions.

Further, two features of the new scheme are significant in comparison with the scheme in the 1971 Act. The first is that people who are deprived of their citizenship on the ground that deprivation is conducive to the public good now have a right of appeal, in all such cases, even when (in short), the Secretary of State makes the decision on the basis of (what will, in any appeal) be CLOSED material. The second is that Parliament’s express description of the three interests which may be involved in such decisions has changed. The third such interest is no longer ‘…for other reasons of a political nature’ but ‘or otherwise in the public interest’. In other words, Parliament has expressly permitted the Secretary of State to make a much broader judgment in the third category of case, which is not based merely on ‘reasons of a political nature’, but on the Secretary of State’s conception of the wider ‘public interest’, that is, the public interest beyond the interests of national security and international relations.

The first question, in the light of these features of the statutory scheme, is what principle, if any, distinguishes cases in which the reason for the deprivation is not an assessment that the appellant is a risk to national security but an assessment that he is involved in SOC.

One premise of the Appellants’ argument is that the relevant cases in the House of Lords or the Supreme Court are all about how SIAC should approach national security cases. That is true, as far as it goes, as Judge 1 noted. As he also noted, that premise does not entail the conclusion, however, that because those cases were all national security cases, the approach does not or cannot apply when other facets of the public interest are engaged. In none of those cases did the relevant court make any such pronouncement; perhaps for the very good reason that any such statement would not have been necessary to the decision, and would therefore not have bound a later court. The Supreme Court tends to avoid opining in that way, for good reason. Neither the House of Lords nor the Supreme Court has decided a case about deprivations on other conducive grounds: and they have therefore said nothing about such cases. The question for a court on an appeal, therefore, is what the underlying principles may be, as SIAC recognised in judgment 1.

The primary source of those principles is sections 40 and 40A of the BNA. There is no warrant in the words of those provisions for a construction which could lead to the application of different principles to SIAC’s review of a deprivation decision, depending on whether the deprivation was based wholly or mainly on national security, or on the other facets of conduciveness to the public good which Parliament has explicitly entrusted to the Secretary of State in the first instance and to SIAC on an appeal. The three aspects of conduciveness to the public good are linked in the statutory scheme; all appellants are exposed to the risk of deprivation on those grounds, and have the same rights of appeal which are subject to certification into SIAC. Further, in all such cases, Parliament has given the Secretary of State a wide discretion both to decide what is conducive to the public good in the particular case, and to decide whether, in the light of that factor, deprivation is appropriate. There is no rational basis on which this court could decide that the reasoning in U3 only applies to national security cases, on the sole ground that U3 is a national security case, not a SOC case. Such a statutory scheme would be incoherent. I reject that construction of the BNA, as did SIAC in judgments 1 and 2.

A second, related question, is whether there is any contextual or practical reason, in a SOC case, not to apply (by analogy), the reasoning in U3. With minor necessary changes, that reasoning can be readily (and persuasively) transferred to SOC cases. There are at least five reasons why.

First, there are similar reasons why SIAC should, in SOC cases, defer to the Secretary of State’s judgment of what is conducive to the public good in an individual case, not only because the BNA makes the Secretary of State the primary decision-maker about that, but for reasons of democratic accountability and institutional competence. Second, what is at issue in both types of cases is SIAC’s role in relation to an expert assessment done for the Secretary of State by the Security Service or by the NCA, as the case may be. Third, that expert assessment involves, at least in part, both an evaluation of intelligence, and an evaluation of the risk which is posed to the public interest by the possible or likely activities of a person, rather than the proof of facts on the balance of probabilities. Fourth, a precautionary approach to public safety is necessary; the human misery exploited and caused by people trafficking is a different threat to public safety from the threat of a mass casualty attack, but it may be well be more likely to materialise, and may sometimes therefore be just as pressing. Fifth, the relevant categories of potential harm to the public interest are not hermetically sealed from one another. For example, serious immigration crime is a vehicle for the unvetted entry into the United Kingdom of people who may well be a threat to national security in its narrow sense, or to the wider public interest.

SIAC lucidly explained, in paragraphs 67-69 of judgment 1, why the same approach must apply in all cases in which a decision is made to deprive a person of his nationality on the grounds that it is conducive to the public good. In judgment 2, SIAC gave its own reasons for rejecting a related submission that the Secretary of State had to make findings of fact on the balance of probabilities. SIAC was right in both cases to conclude, that, in principle, the same legal approach must apply to all appeals which involve deprivations in reliance on any aspect of the public good which is referred to in section 40(1) of the BNA, and second, that involvement in SOC could amount to, and did, in these cases, amount to a justification for the deprivation decisions and for the exclusion decision.

The Appellants argue that it is only, or primarily, the police and courts which have the institutional competence to deal with crime, so that it is in some way inappropriate for the Secretary of State to use the section 40(2) power in such cases. They are primarily responsible for prosecuting some 1.3m crimes a year. The Secretary of State is not, therefore, in effect, constitutionally responsible, or democratically accountable, for criminal matters in the same way as she is for national security.

It is of course true that the police may investigate such cases, and that such offenders may be prosecuted, tried, convicted, and imprisoned, as were D5 and D6. That does not make it inappropriate for the Secretary of State, who unlike the police, is democratically accountable for effects of, and public concern at, for example, the Ds’ type of SOC, to use a different method of dealing with it, if she (and it is her decision, not primarily that of the courts) decides that deprivation is a more effective, available, and less expensive use of the resources of the United Kingdom than criminal investigation, prosecution, and lengthy imprisonment would be.

For completeness, in deference to some of the Appellants’ arguments, and in case it is thought to raise a legally distinct issue, I will consider a further potential stage in the analysis. The issue here is, I think, best described as being whether the broad subject matter of these decisions (a facet of conduciveness to the public good) intrinsically entails the broad characteristics of the decision-making by the Secretary of State in U3 and in these cases respectively, or whether there is a legally relevant distinction, based on a granular analysis of the actual issue in an appeal, between the Secretary of State’s actual approaches to the decisions in U3, on the one hand, and in these cases, on the other. In other words, is it enough for the Secretary of State to show that the decision is about an aspect of conduciveness to the public good, or is it also necessary for the Secretary of State to show, as the Appellants submit, that the Secretary of State’s decision also depends on an assessment of risk?

This argument is a refinement of an argument I have already rejected. I have held that different rules cannot in principle apply to the Secretary of State and to SIAC in deprivation cases, depending on which facet or facets of the public interest the Secretary of State relies on in making a deprivation order. It must follow that the rules which apply cannot vary, in such deprivation cases, according to whether a decision is based on an assessment, based on the evaluation of intelligence, that a person has in the past been involved in an activity which is not conducive to the public good, or on an assessment that there is a risk that he might be involved in such an activity in the future (or both). Any such distinction would be irrational. The facts of these cases also show that any such distinction is, in any event, theoretical rather than real. In practice, in SOC cases as well as national security cases, the relevant assessment usually, if not always, has two parts: an assessment of what the subject has done so far, and an assessment of the risk that he will do something in the future.

I accept the submission of Mr Grieves that in the cases of D5 and D6, SIAC did not make express findings of fact that, on the balance of probabilities, D5 and D6 had been involved in SOC as described in the assessment of the NCA and in the submission to the Secretary of State. On the other hand, the appellant bears, on any appeal, whatever its exact nature, the burden of displacing the findings of the decision-maker from whose decision he appeals. SIAC’s finding, in the last sentence of paragraph 5 of judgment 1, that ‘No reliance can be placed on their evidence that they were not involved in the conduct which is alleged against them’ disposes of their appeals, whatever the right legal approach to their appeal was. That is so because the effect of that sentence is that D5 and D6 had failed, in SIAC’s view, to discharge that fundamental burden, because their evidence that they were not involved in the conduct alleged against them could not be believed. If therefore, contrary to my clear view, SIAC was obliged to make clear findings of fact on these questions, and erred in law in failing to do so, any such error of law would be immaterial.

In deference to the vigour of Mr Grieves’s submissions, I should nevertheless expressly decide a further issue of principle which his argument raises. That issue is whether, as Mr Grieves submits, the Secretary of State and SIAC should have made findings of fact on the balance of probabilities that D5 and D6 were involved in SOC, rather than, in the case of the Secretary of State, relying on assessments to that effect which were made by the NCA and by officials, and, in SIAC’s case, reviewing the Secretary of State’s decision by reference to public law principles.

SIAC’s reasoning in judgment 2 on the question whether the Secretary of State is obliged to make findings of fact on the balance of probabilities (see paragraph 97, above) is cogent, and I adopt it. In short, there is no warrant in the language of section 40(2) for the proposition that the Secretary of State is obliged to make any such findings in order to make a deprivation decision. The question whether SIAC is permitted to make such findings is answered by U3. For this purpose, a finding on the balance of probabilities that Ds were involved in SOC is a ‘pivotal fact’ of the sort to which this court erroneously referred in U3 (CA). Lord Reed’s criticisms of the approach of this court in U3 (CA) to such ‘pivotal facts’applies with equal force to the submission that, in this case, SIAC was obliged to find, on the balance of probabilities, whether or not D5 and D6 were involved in SOC. I therefore reject the submission that SIAC erred in law in not making findings of fact on the balance of probabilities about whether or not D5 and D6 were involved in SOC.

There are two initial points. First, proportionality under the ECHR is irrelevant, for the reasons given in judgment 2 (see paragraph 96, above). C9 was refused permission to appeal against that conclusion. Second, if and to the extent that general references to proportionality include the so-called ‘nutcracker principle’, SIAC convincingly explained why there was no less intrusive measure which would have been as effective as deprivation in achieving the Secretary of State’s legitimate aims (see paragraph 98-100, above).

SIAC explained and Mr Southey accepted that there was a potential factual overlap between a national security case and a criminal case. He nevertheless submitted that they are distinct legal categories and that this was clearly a criminal case. It followed from the Secretary of State’s lack of relative institutional competence in criminal matters that the intensity of any review which is required by SIAC in a SOC case is greater than the intensity of any review in a national security case. SIAC erred in law in reviewing C9’s case with an intensity which is appropriate in a national security case, but which was not enough in a SOC case. SIAC had not addressed the critical question in this case, which was whether, even if its findings of fact were correct, the decision was ‘reasonable and/or proportionate’. That submission was based, in part, on dicta in Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591which stress the importance to an appellant of his British citizenship.

I have summarised SIAC’s reasoning on this topic (see paragraph 94, above). The submission is hopeless in the light of SIAC’s clear view that there was ‘a strongly compelling public interest reason’ for the decision, that there is no common law requirement of proportionality, but, if there were, ‘the decision in this case would comfortably meet that requirement’. Three points are especially relevant to this submission. First, SIAC is an expert court familiar with the basic legal principles, second, SIAC, in the course of its reasoning on the appeal, made relevant, cogent (and damning) findings of fact, which are not challenged, and third, on an appeal on a point of law, this court should defer to SIAC’s (conditional) assessment of proportionality.

Mr Southey argued that C9 should have been given an opportunity to make representations before the Secretary of State deprived him of his citizenship. He relied on paragraph 60 of R (Balajigari) v Secretary of State for the Home Department [2019] EWCA Civ 673; [2019] 1 WLR 4647 and Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700. He accepted that statute could exclude the common law right to make representations expressly or by implication but submitted that there was no such exclusion here.

If, as I consider it should, SIAC must take a similar general approach to all deprivation decisions made on the ground that deprivation is conducive to the public good, then, regardless of the particular facet of the public good which is engaged, the Supreme Court’s reasoning about procedural fairness in paragraph 82 of U3 (see paragraph 43, above) is relevant. It is obiter, because there was no issue about procedure in that case, but it is strongly persuasive. For what it is worth, I also consider that it is right. That reasoning is explicitly based, not on the precise nature of the issue which SIAC is considering in the appellant’s appeal, but on the schematic feature that, where there is an appeal to SIAC against a deprivation decision on conducive grounds, procedural fairness is ensured, after the event, by the statutory right of appeal to SIAC, in and of itself. That reasoning is supported by the reasoning of this court in paragraph 112 of Begum v Secretary of State for the Home Department [2023] EWCA Civ 152; [2024] 1 WLR 4269 that SIAC’s role on an appeal (in a national security case) excludes ‘the right to prior consultation’. There was some debate on this appeal about whether that reasoning is obiter. Whether or not it is obiter, it is, again, strongly persuasive, and, in my view, right.

I also consider that SIAC’s reasoning on this point in judgments 1 and 2 is compelling on the facts of these cases (see paragraph 75 above, the last three sentences of paragraph 92, above, and the second, third and fourth reasons in paragraph 93). Whether or not this court is bound to hold that there is no right to make representations in a section 40(2) case, I would hold that SIAC was right, for the reasons it gave in judgments 1 and 2, to decide that it was not unlawful to make the decisions in these cases without giving the appellants a chance to make representations. I would also hold that there is no such right in a section 40(2) case which is certified, so that any appeal is to SIAC.

For completeness, I should say something about the appeal of D7. D7 did not appeal to SIAC, but applied to SIAC for a review of his exclusion from the United Kingdom. The Act is clear that the principles which apply on an application for judicial review apply to such a review. His appeal does not, therefore, directly raise the questions which are raised by the other appeals. My reasons for dismissing those appeals apply with greater force to his appeal.

For those reasons I would dismiss the appeals in all these cases.

I should add that there is nothing in the CLOSED material in these cases which affects that conclusion in any way.

I agree.