Shabir Ahmed & Ors v Secretary of State for the Home Department

This is the decision of the panel to which both members have contributed.

All of the Appellants are of Pakistani nationality and have acquired British citizenship by naturalisation. Their conjoined appeals have their origins in a series of decisions made by the Secretary of State for the Home Department (the “ Secretary of State ”) proposing to deprive the Appellants of their British citizenship under section 40(2) of the British Nationality Act 1981. The First-tier Tribunal (the “ FtT ”) dismissed the Appellants’ ensuing appeals. The Appellants appeal to the Upper Tribunal pursuant to my order granting permission to do so dated 05 August 2016.

As recorded in the permission order, these are four inter-related appeals in a case of some notoriety arising out of certain highly publicised prosecutions and ensuing convictions. The Appellants were convicted of various inter-related offences: the trafficking of children for sexual exploitation, rape, conspiracy to engage in sexual activity with children and sexual coercion. Their sentences ranged from 6 to 19 years imprisonment. The sentencing judge highlighted the scale and gravity of the offending, the protracted period involved (2008 – 2010), the ages of the victims – they were young teenagers – and the factors of callous, vicious and violent rape, humiliation and financial gain.

On 9 May 2012 HHJ Clifton sentenced the four Appellants, together with five others, following their conviction by a jury of very grave sexual offences, undertaken in the context of a conspiracy to commit them, between the spring of 2008 and the spring of 2010. That criminal behaviour can be summarised briefly as the grooming and sexual exploitation of a number of girls in their early teens, in the area of Rochdale and Oldham. As the sentencing Judge observed, this summary risks hiding the appalling character of their behaviour. The Appellants were all many years older than their victims. In some cases, girls were raped callously and viciously and in others they were forced to have sex with paying customers. The sentencing Judge noted that some of the Appellants acted to satiate their lust, others did so for financial gain and some had both motivations. All were condemned as having treated their victims as worthless and undeserving of basic respect and dignity. Their offences were shocking, brutal and repulsive.

Individually the Appellants were punished as follows:

Shabir Ahmed was convicted of the rape of a girl of 15 on several occasions and of giving her to a young man that he referred to as his nephew who also raped her. There was a second rape conviction. He was described as the leader of the conspiracy. For the rape convictions he was sentenced to 19 and 22 years’ imprisonment respectively. For the convictions for trafficking, conspiracy and sexual assault he was sentenced to two further terms of eight years and one of six months. All sentences were ordered to be served concurrently. He remains incarcerated.

Adil Khan was convicted of conspiracy to engage in sexual activity with a child by penetrative sex, and of trafficking for sexual exploitation two 15 year old girls. He had sex with them both, and used violence towards one whom he coerced. For the conviction for trafficking he was sentenced to eight years’ imprisonment with a further term of eight years to be served concurrently for the conspiracy conviction. He has been released on licence.

Qari Abdul Rauf was convicted of conspiracy to engage in sexual activity with a child by penetrative sex and of trafficking for sexual exploitation a 15 year old girl. He had sex with that girl in his taxi, and he and others also had sex with her at a flat in Rochdale. For the convictions for trafficking he was sentenced to six years’ imprisonment with a further term of six years to be served concurrently for the conspiracy conviction. He has been released on licence.

Abdul Aziz was convicted of conspiracy to engage in sexual activity with a child by penetrative sex and of trafficking for sexual exploitation a 15 year old girl. He had taken over the running of the conspiracy from Shabir Ahmed and whilst he was not convicted of having sexual intercourse with a child himself, his further convictions were coercing girls into having sex with men who paid him, including the coercion of one girl into having anal sex when she was menstruating. For the trafficking convictions he was sentenced to nine years’ imprisonment with a further term of nine years to be served concurrently for the conspiracy conviction. He has been released on licence.

Section 40 of the British Nationality Act (the “1981 Act”), under the rubric of “Deprivation of Citizenship”, provides:

that the Secretary of State has decided to make an order,

the reasons for the order, and

the person’s right of appeal under section 40A (1) or under section 2B of the Special Immigration Appeals Commission Act 1997.

The Appellants’ convictions were the sole impetus for the Secretary of State’s decisions made under section 40. Decisions to that end were initially made on 31 July 2015. The Appellants exercised their right of appeal under section 40A of the 1981 Act. Unusually, in the events which occurred, the Secretary of State’s decision- making process and the process of the FtT then merged to a certain extent. As this sounds on at least one of the grounds of appeal, it is necessary to outline what transpired between 31 July 2015 and the ultimate disposal of the appeals by the FtT. In short:

The appeals having been registered, a hearing date of 22 September 2015 was arranged initially. This was then re-arranged to 28 October 2015 and, in the course of a phase of active case management, this arrangement was revised.

By letter dated 28 October 2015, the Secretary of State’s representative withdrew the decisions of 31 July 2015 in the cases of Messrs Khan, Rauf and Aziz.

In each of the aforementioned three cases fresh decisions, dated 02 December 2015, followed.

Messrs Khan, Rauf and Aziz then lodged appeals with the FtT against the fresh decisions. Those appeals were linked to the appeal of Mr Ahmed and all four appeals were then heard together.

At this juncture it is convenient to record that the aforementioned three Appellants – Messrs Khan, Rauf and Aziz – are each the fathers of children aged under 18 years. This realisation was the impetus for the substitution of the original decisions by replacement decisions. This does not apply to the first Appellant, Mr Ahmed, whose children were adults at all material times. We shall elaborate on this distinction infra.

The format of the Secretary of State’s decisions in all four cases is identical, with the exception that in the case of the first Appellant there is (as explained above) no mention of children. The content of the decisions varies only minimally, reflecting the different names and dates of birth of the Appellants, their differing family circumstances and the different dates upon which they had received their certificates of nationalisation as British citizens.

The Secretary of State’s decisions in all four cases noted the Appellants’ British citizenship status, their convictions and some of the observations of the sentencing judge. Each of the decisions describes the Appellants’ criminality as involving “ serious and organised offences ”. In the cases of Messrs Ahmed and Aziz, it is stated that these Appellants had “ a leading role ” in the criminality. In the cases of Messrs Khan and Rauf, the different terminology of “ collusion with others ” is employed. In the cases of the three Appellants who have children, there is a separate paragraph dedicated to this issue which we shall address at a later stage of this judgment.

In all four cases, the Secretary of State’s decisions contain the following passages:

The correct analysis of the Secretary of State’s decisions, considered in their statutory context, is in our judgment the following:

By the impugned decisions the Secretary of State conveyed to the Appellants that an order depriving them of their British citizenship under section 40(2) of the 1981 Act was forthcoming: a classic “minded to decide” notification or notice of intention. The language of section 40(5) is “notice”.

Simultaneously, the Secretary of State notified an intention to defer making such an order in the event of an appeal being pursued: this was a voluntary act, not mandated by the statute.

The pursuit of an unsuccessful appeal would give rise to the making of a deprivation of citizenship order (and a further notification to this effect): this is portrayed as a virtual inevitability.

In the event of an order being made, the Secretary of State would give consideration to removing or deporting the Appellants from the United Kingdom.

The course adopted by the Secretary of State’s decision-making process in these cases therefore contemplates two further stages. First, the making of a formal deprivation of British Citizenship order in each case, in the event of an unsuccessful appeal. Second, further to the latter order, a removal decision or deportation order. We observe that if the second further stage is reached in any of the Appellants’ cases, it will involve all of the formalities, procedures, rights and protections which decisions of this kind entail. We shall revisit the significance of this infra .

Given the factual and legal context outlined above, it is unnecessary to consider the hypothetical question of whether a deprivation of citizenship order may lawfully be made in circumstances where an appeal to the tribunal against a “notice of intention” decision is pending.

Permission to appeal to the Upper Tribunal has been granted to each of the Appellants on the following five grounds:

The Respondent’s decision was vitiated by a failure to discharge her duty under s. 55 of the Borders, Citizenship and Immigration Act 2009;

The First-tier Tribunal [“FtT”] failed to acknowledge the factor of EU law rights, failed to carry out a proper proportionality balancing exercise and failed to evaluate the factors specified in Articles 27 and 28 of the Charter;

The FtT erred in its construction of the statutory criterion of “serious organised crime” and failed to take into account the Respondent’s policy on the issue;

The FtT erred in its application of Article 8 ECHR and, specifically, failed to appreciate that the Article 8 claim focused on the deprivation of citizenship, not proposed deportation;

The FtT erred in law in applying Part 5A of the Nationality, Immigration and Asylum Act 2002.

As noted above, this ground of appeal does not arise in the case of the first Appellant, Mr Ahmed. Section 55 of the Borders, Citizenship and Immigration Act 2009 (the “ 2009 Act ”) provides:

At this stage we revisit the chronology of the Secretary of State’s decision-making: see especially [6] – [8] above. It is common case that the Secretary of State’s decisions concerning the three Appellants (second, third and fourth) who have children aged under 18 years were withdrawn and substituted to address the lacuna that the section 55 duty had not been considered in the original decisions. The substituted decisions sought to rectify this omission. Of the second, third and fourth Appellants the substituted (operative) decisions all contain a passage beginning with an acknowledgement of the Secretary of State’s awareness that the Appellant concerned either has British citizen children whose ages are noted (in two cases) or that the relevant Appellant has “ dependents under 18 who are British citizens ” (the Khan case). In all three cases, this passage continues:

During the FtT phase the initial case management directions notified the parties of a forthcoming case management review hearing (“CMR”) and included the following :

We turn to examine the case made to the FtT on this issue by these three Appellants. In summary:

In the case of the first Appellant, Mr Khan, who was unrepresented, there is no indication that any witness statement or other documentary evidence was presented. The Tribunal’s decision records that this Appellant gave evidence and notes the following (referring to one of the members of the panel of three Judges):

The third Appellant, Mr Rauf, who was legally represented, made a relatively detailed witness statement which was submitted to the FtT. The Secretary of State’s decision had noted that this Appellant has five British citizen children, aged between 8 and 15 years. In his statement, this Appellant makes a bare, unparticularised reference to “ my wife and children ”. The remainder of his statement consists of much advocacy and little concrete evidence. The decision of the FtT contains the following passage:

In the case of the fourth Appellant, Mr Aziz, the Secretary of State’s decision noted that he had three British citizen children aged 5, 14 and 17 years. This Appellant was represented before the FtT. The presentation of his case included a written statement. This recounted that prior to his incarceration he was the family’s sole bread winner, working as a taxi driver. His children were in full time education. The family was now wholly dependent upon state benefits. His wife and children had visited him during his imprisonment. Following his release from prison in December 2015 any contact with his children had been supervised, involving an appointed Social Services supervisor. His childrens’ maternal grandparents lived in the United Kingdom. He had a strong bond with his wife and children. In his evidence to the Tribunal this Appellant elaborated on his written statements and explained that (by reason of the licence conditions) he was living apart from his family, in Manchester. In evidence to the Tribunal, this Appellant’s spouse testified that all three children were “ bright in their education ”. She described the adverse impact on the family arising out of her husband’s imprisonment and the continuing separation. Similar evidence, both written and oral, was given by the oldest child of the family, a son aged 17. He confirmed the role of his maternal grandparents in their lives.

We now turn to consider how the FtT dealt with the best interests of the children issue in its separate decisions. In the case of Mr Khan, the FtT noted the submission on behalf of the Secretary of State relating to section 55 of the 2009 Act and reproduced in full the relevant passage in the Secretary of State’s decision: [17] supra . The approach espoused by the FtT was that since the removal or deportation of the Appellant was a reasonably foreseeable consequence of depriving him of his British citizenship, Article 8 ECHR must be considered. The word “ deportation ” features repeatedly in the passages which follow. The FtT reasoned:

In the case of the third Appellant, Mr Rauf, the FtT noted the representative’s argument that the Secretary of State had not adequately assessed the best interests of the children. The approach adopted by the Tribunal was essentially the same as in Mr Khan’s case, viz to ask whether removal or deportation would be a reasonably foreseeable consequence of depriving this Appellant of his British citizenship, supplying an affirmative answer. The FtT then stated:

In the case of the fourth Appellant, Mr Aziz, the FtT noted the reliance of the Secretary of State’s representative on the relevant passage in the substituted decision and reproduced this in its entirety: see [17] supra . Having done so, the approach adopted was essentially the same as in the other two cases: see [18] and 19] above. Thus, the Article 8 issues canvassed were viewed from the perspective that the removal or deportation of this Appellant from the United Kingdom was a reasonably foreseeable consequence of depriving him of his British citizenship. As in the other two appeals, the FtT reasoned that the deportation of this Appellant would clearly interfere with family life and continued:

We summarize the rival contentions of the parties’ representatives on this issue thus. Mr Jafferji, representing the second to fourth Appellants, submitted that the Secretary of State had committed the “ primary and basic flaw ” in confining her consideration to the immediate consequences of depriving his clients of British citizenship and disregarding the reasonably foreseeable consequences of this measure. His second submission was that the Secretary of State had failed in her duty to make enquiries concerning the children and to obtain relevant information, such as social services input, relating to, the affected children. In written form, Mr Jafferji formulated this submission thus:

The main submission of Ms McGahey QC and Mr Mandalia on behalf of the Secretary of State was that having regard to the context , upon which some emphasis was placed, the Secretary of State’s duty was limited to considering the extent to which the impugned decisions impacted upon the need to safeguard and promote the welfare of the affected children. Second, the Tribunal was reminded of the terms in which the children’s interests were considered in the substituted decisions. Third, we were reminded of the manner in which these issues were explored by the FtT in its successive decisions. Fourth, it was submitted, in terms, that the Appellants’ cases under the aegis of this ground of appeal were really advanced in a vacuum: they neither laid before the Secretary of State or the FtT evidence bearing on the childrens’ best interests nor made relevant representations. Nor do they point to the existence of any such evidence at this stage

We consider that the content of the duty owed by the Secretary of State under section 55(1) of the 2009 Act in the cases of the second to fourth Appellants must be measured by reference to the context. In this respect, the context to which the decisions underlying these conjoined appeals belongs had two basic ingredients, the first factual, and the second legal. The factual dimension of the context is rehearsed above. There follows the legal context.

The first ingredient in the legal context is that each of the Appellants, by virtue of naturalisation, enjoys the status of British citizens. A comprehensive code for the acquisition and loss of British nationality (now British citizenship) has been devised by Parliament since the first statutory intervention of note, namely the British Nationality and Status of Aliens Act 1914, which repealed the Naturalisation Act 1870. Following the Commonwealth Legal Conference held in London in 1947, the British Nationality Act 1948 sought to give effect to the principles of the Canadian Citizenship Act 1946 for general application throughout the Commonwealth. It reflected the principle that people of each of the self-governing countries of the Commonwealth had a particular status as citizens of their own country and a common status as members of the Commonwealth family. A limited power to control the immigration of Commonwealth citizens into the United Kingdom was introduced via the Commonwealth Immigrants Act 1962. In due course the Immigration Act 1971 and the 1981 Act were introduced.

Throughout history, British subjects were free at common law and/or by statute to enter the United Kingdom and reside there. This is the fundamental right conferred by the status of British citizenship. Under the 1981 Act, British citizenship is the only status which confers a legal right to live in the United Kingdom and to come and go at will. The possibility of acquiring this status by naturalisation has long been recognised by statue (see in particular the 1948 Act) and is now governed by section 6 of and Schedule 1 to the British Nationality Act 1981. The effect of modern British nationality laws is that loss of the right of abode in the United Kingdom is the main consequence of depriving a person of British citizenship. The affected subject also suffers the loss of associated and consequential rights, duties and opportunities – in particular voting, standing for election, jury service, military service, eligibility for appointment to the Civil Service and access to state benefits, state financed healthcare and state sponsored education. Fundamentally, the relationship between the individual and the State, which lies at the heart of citizenship and nationality, is extinguished.

Interestingly, as a perusal of the 1948 and 1981 statutes indicates, successive Governments have declined to define comprehensively the rights attaching to British citizenship through the vehicle of legislation. The Government perspective on the essential elements of citizenship was expressed in the Green Paper “The Governance of Britain” (CM7170) published in July 2007, which focuses (inter alia) on the concepts of membership of the community, national identity, common British values and the constitution. Another report of note in this context is “The Path to Citizenship: Our Common Bond”, which forms part of the background to the 2009 Act.

The second main ingredient in the legal context is the decision-making structure devised by the 1981 Act. We have analysed this in [11] – [12] above. In short, decisions of the kind under challenge in these appeals have the status of a notice of intention, under section 40(5) of the 1981 Act, to make a deprivation of citizenship order. If the decision under section 40 (the same structure applies to both section 40(2) and section 40(3)) is not challenged by appeal to the tribunal, the next stage contemplated is a formal order by the Secretary of State. The unexpressed (though perhaps implied) premise is that no deprivation order will be made while an appeal to the tribunal remains undetermined.

Loss of British citizenship occurs at the second, rather than the first, of the aforementioned stages. A deprivation of citizenship order – emphatically – does not equate to either removal or deportation of the affected subject from the United Kingdom. Both removal and deportation are governed by other statutory regimes entailing specified procedures, requirements and rights. Removal and deportation decisions may in certain circumstances be challenged by appeal or judicial review proceedings. British citizens are immune from removal and deportation action. Thus they must be deprived of their British citizenship status before either of these courses can be pursued.

Accordingly, neither a decision (or notice of intention) to make a deprivation order (these cases) nor a deprivation order itself has the immediate or direct consequence of the affected subject’s removal or deportation from the United Kingdom. It is, of course, reasonable to assume that a notice of intention to make a deprivation of citizenship order will normally be given as a prelude to a deprivation order and a later decision to remove or deport the affected person from the United Kingdom. But the initial decision is correctly to be viewed as a first step. Future steps and stages will require the subject to be actively involved and, in particular, will generate the Secretary of State’s duty under section 6 of the Human Rights Act 1998 to avoid conduct incompatible with protected Convention rights, will engage the common law principles of a fair decision making process, and will also trigger the constraints imposed by any applicable statutory code (for example the UK Borders Act 2007) and established principles of public law.

There is no shortage of judicial learning and guidance relating to section 55 of the 2009 Act, which forms the next component of the legal context. The leading decisions, which emanate from the Supreme Court and the Court of Appeal, were reviewed by this Tribunal in JO and Others (Section 55 Duty) Nigeria [2014] UKUT 00517 (IAC), MK (Section 55 – Tribunal Options) Sierra Leone [2015] UKUT 00223 (IAC) and Kaur (Section 55/Public Interest Interface) [2017] UKUT 14 (IAC). In MK , this Tribunal held that where a breach of section 55(1) is canvassed, the onus rests on the Appellant to establish this on the balance of probabilities and there is no onus on the Secretary of State. This is not contested by these Appellants.

In JO Nigeria , this Tribunal, having drawn attention to the twofold duties enshrined in section 55, stated at [13]:

This Tribunal examined this issue in a little detail in JO Nigeria ( supra ), at [10] – [13]. It seems to us that given the particular course and contours of the Secretary of State’s decision making processes in these appeals, considered in tandem with the full factual and legal context, the observation of Mann J applies a fortiori in the instant context. While the possibility of a duty of proactive enquiry on the part of the Secretary of State in a given context was also canvassed in JO Nigeria , at [14], this Tribunal declined to determine this discrete issue on a hypothetical basis, through recognizing its potential to arise in a specific, concrete fact sensitive context. We shall explain below why we consider that no such duty arose in any of these cases.

The context in which the decisions of the Supreme Court and the Court of Appeal noted in Kaur were made, is of some significance. These were all cases involving decisions having final, permanent or long term consequences, by which the individual was compelled to leave the United Kingdom with no further decision to follow. The context enveloping the Secretary of State’s decisions underlying these appeals is to be contrasted, as demonstrated above. Furthermore, issues of the kind canvassed under the banner of this ground of appeal are to be evaluated realistically and, where appropriate, robustly, as the following passage in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550 demonstrates, at [58]:

The question of whether in any given context the Secretary of State’s duty under section 55(1) has been discharged will also require consideration of the decision- making process adopted in the individual case. As regards these appeals, this is outlined in [6] and [15] – [16] above. The effect of the decision-making process in the present cases was that the second to fourth Appellants had ample opportunity to make to the Secretary of State such representations and to provide such evidence bearing upon the children’s best interests as they wished.

We consider that in this decision-making context , the Secretary of State was entitled to expect the second to fourth Appellants and their representatives proactively to equip her with the representations and information necessary to enable an adequate best interests assessment to be carried out or to suggest other appropriate paths of enquiry. While this analysis will not invariably apply to every context, we consider it applicable in these cases. Secondly, we find no evidential foundation to support the contention that in any of these cases the Secretary of State was under a duty of further proactive enquiry. We accept the submission of Ms McGahey QC that the Appellants’ argument to the contrary is made in a vacuum. Thirdly, bearing in mind the features of the context highlighted above, we are satisfied that the substituted decisions contain an adequate best interests assessment. This is our primary conclusion and it is sufficient to defeat the first ground of appeal.

While we have found merit in the Respondent’s submission that the Appellants did not place any best interests material before the FtT, other than the witness statements provided and the oral evidence elicited in questioning, it is not disputed that the second to fourth Appellants will be at liberty to make such representations and provide such evidence bearing on their children’s best interests as they are desirous of providing at the future stages likely to be reached. We consider that this will arise as a matter of right . By virtue of section 55(1), overlaid by the public law principles highlighted in JO Nigeria, the Secretary of State would be under a duty to consider all material of this kind prior to making a removal or deportation decision consequential thereon. The separate duty under section 55(3) would also bite.

Thus, insofar as section 55 and Article 8 issues have not arisen forcefully at this stage of the broader landscape, any omission or gap in representations or evidence – for which the Appellants must be held responsible – can be remedied in the future, when further decision making contexts will have two particular features, one legal and the other factual.

The legal factor is that any future decision requiring an individual to leave the United Kingdom will have consequences quite different from the (mere) notice of intention decisions currently in existence and the Appellants will have a right to be heard. At that final stage such consequences will raise the spectre of long term or permanent exclusion of the second to fourth Appellants from the day to day lives of their families and prolonged separation. The ‘playing field’ will be quite different. Furthermore, one would expect further representations and evidence to address the distinction between the impact on the affected children flowing from the harrowing events in their lives during recent years and any predicted further or different impact arising out of the deportation or removal of their respective fathers . This is an issue which the Appellants did not address in their representations to the Secretary of State: this is a paradigm illustration of a context where all the tools and cards are held by the Appellants and their families. There may also, foreseeably, be other evidence – for example from schools, clubs, churches et alia – and any expert evidence they may see fit to commission.

The stand out factual feature of future decision making processes is that further decisions will have to be based upon such updated representations and information as are assembled and advanced. Drawing attention to the broader canvas in this way serves to highlight that whilst section 55 and Article 8 issues arise at this stage, in these cases they have done so less forcefully than is likely in the predictable future.

Next, the decision of the Upper Tribunal in Deliallisi (British Citizen: Deprivation of Appeal: Scope) [2013] UKUT 00439 (IAC) falls to be considered. Here it was held that in appeals under section 40A of the 1981 Act it is incumbent on the Tribunal to consider the reasonably foreseeable consequences of deprivation of citizenship which may, depending on the facts, include removal from the United Kingdom. The relevant passages are found in [54] – [56]. While the verb “ determine ” features in [2] of the headnote and the relevant cross-heading in the text, we consider that [54] – [56], considered as a whole, reflect the Tribunal’s decision that the reasonably foreseeable consequences of a decision under section 40(5) of the 1981 Act are a factor to be considered by the FtT. This clearly embraces section 55 and Article 8 issues.

While the analysis and route culminating in the same conclusion which we have charted above may be more elaborate than, and do not mirror precisely, the approach in Deliallisi , we have no reason to doubt the correctness of the decision. To this we add that while the correctness of the Delliallisi decision was challenged in argument before the FtT, based on an earlier decision of the Upper Tribunal in Arusha and Demushi (Deprivation of Citizenship – Delay) [2012 UKUT 80 (IAC), the Secretary of State did not maintain this argument before us: see [52] – [54] of counsel’s skeleton argument.

We make the following further discrete conclusions. First, there was no error of law on the part of the Secretary of State in this respect. In particular, it was not erroneous in law to focus on the nature of the decisions being made. Second, the Secretary of State plainly did have regard to the possible consequences of those decisions. Third, it cannot sensibly be said that the Secretary of State did not have in contemplation the real possibility that the notice of intention decisions would operate as a first step in a broader process culminating in removal or deportation decisions. Having regard to how the section 40 framework operates to the contrary, realistically, is unarguable.

Furthermore there is no demonstrable error of law in the approach of the FtT. As its decisions demonstrate beyond peradventure, it had deportation of the Appellants to the forefront of its mind in considering the various grounds of appeal, as is evidenced by the consideration which it gave to the statutory deportation regime considered in [71 – 76] infra .

Finally, we would mention section 55(3) of the 2009 Act. As emphasised in JO (Nigeria) , this contains a discrete, free standing duty: see [12]. No breach of section 55(3) was canvassed in the Appellants’ grounds of appeal, and this issue is not identified in the grant of permission to appeal: on the contrary, the grant of permission is specifically confined to the primary, substantive duty imposed by section 55(1). As a result, the section 55(3) issue did not feature in the skeleton arguments of any of the parties and, at the hearing, arose only in the context of a brief observation on the part of the bench. It is not, therefore, a live issue in these appeals.

We nonetheless take the opportunity to observe that the duty imposed by section 55(3) is inextricably linked to that enshrined in section 55(1). The former duty is designed to facilitate and enhance the discharge of the latter. Context, as ever, will be all important. In MK (Sierra Leone) , this Tribunal held that it is not necessary for the Secretary of State’s decision maker to make specific reference to the statutory guidance: see [19]. This Tribunal has observed more than once that, based on its experience, the discrete statutory duty enshrined in section 55(3) appears to be honoured by the Secretary of State more in the breach than the observance. It is timely to reiterate this message. Our further, and final, observation on section 55(3) is that its impact in notice of intention decisions made under section 40(5) of the 1981 Act will invariably be calibrated according to the individual context and, further, will be assessed in the light of our evaluation of the reach and impact of the section 55(1) duty above. Beyond this we do not venture in the present appeals, as this issue lies outwith the grant of permission to appeal and was not the subject of argument.

For the reasons elaborated above, we conclude that the first ground of appeal has no merit.

This ground is summarised in [15] (ii) above. The starting point is that the impugned decisions of the Secretary of State did not identify, or address, any EU law issue. Mr Jafferji recognised that these appeals have no “cross-border element”. He submitted, however, that while the Court of Appeal in G1 v Secretary of State for the Home Department [2012] EWCA Civ 867 considered this an essential factor, the Supreme Court in Pham v Secretary of State for the Home Department [2015] UKSC 19 left the issue undecided and canvassed the possibility of a referral to the CJEU in some appropriate case.

Mr Jafferji contended that the specific dimension of EU Law to be considered is the proportionality principle which, in turn, requires consideration of whether the Appellants pose a genuine, present and sufficiently serious threat to an identified public interest; an exclusive focus on the personal conduct of the Appellants; disregard of the issue of general prevention; and consideration of the impact of the Secretary of State’s decisions upon the Appellants’ rehabilitation prospects. This submission was advanced by reference to Articles 27 and 28 of Directive 2004/38/EC (the “Citizens Directive”) and its final element entailed the contention that the Appellants benefit from, as a minimum, the highest tier of protection which the Directive affords, namely imperative grounds of public security.

Responding, Ms McGahey QC and Mr Mandalia highlighted the inconclusive nature of the Supreme Court’s consideration of this issue in Pham and submitted that this ground of appeal must fail by reason of the decision in G1 to which effect was given recently by this Tribunal in AB (Nigeria v Secretary of State for the Home Department [2016] UKUT 00451 (IAC). The final element of the Respondent’s submission was that the “Zambrano” principle is not engaged. It could not be engaged in Mr Ahmed’s appeal since there was no child affected by the decision. As to Messrs Khan, Rauf and Aziz all of the affected children have a British citizen mother upon whom they can rely, and those children are not dependent upon their fathers for the exercise of their rights of residence within the European Union ( Zambrano v Office National de L’Emploi [2011] EUECJ C-34/09).

The FtT dealt with this discrete issue as follows. In its decision in Mr Rauf’s appeal, the Tribunal stated, at [53]:

In R (G1) , which concerned a judicial review challenge to the making of an order to deprive an individual of citizenship, the EU law argument was formulated in very specific terms. The contention advanced was that the Secretary of State had been obliged (and had failed) to observe procedural principles of EU law in making the impugned order: specifically that EU law procedural principles entitled him to attend in person his appeal in the United Kingdom. The critical passages in the leading judgment (of Laws LJ) are in [38] – [39]. The central theme of the decision of the Court of Appeal is that the subject of national citizenship lies exclusively within the competence of individual EU Member States in which EU law has no role to play. We presume to observe that this is well established doctrine. G1 was considered by the Upper Tribunal in AB which, in substance, acknowledged that this general principle may require modification in a deprivation of citizenship case involving a cross-border element: see [85] and [87].

Most recently, these issues were considered, but not decided, by the Supreme Court in Pham v Secretary of State for the Home Department [2015] UKSC 19. There the EU law dimension canvassed was the EU principle of proportionality. The appeal against the Secretary of State’s “notice of intention” decision had been allowed by SIAC on the ground that the effect of the decision would be to render the appellant stateless. The Court of Appeal reversed this decision and remitted the case to SIAC to determine the other grounds of appeal. The Supreme Court affirmed the decision of the Court of Appeal. Interesting though the judgments of the Supreme Court Justices are, for our purposes the most important consideration is that the decision in G1 was not overruled. Being a decision of the Court of Appeal, it is binding on this Tribunal by the operation of the doctrine of precedent. This provides a complete answer to this ground of appeal.

We add two observations. The first is that, albeit in Article 8(2) proportionality – rather than EU law proportionality – terms, the FtT examined this issue exhaustively and concluded that the impugned decisions of the Secretary of State were a proportionate means of furthering the legitimate aims pursued. Our second observation relates to the context in which proportionality has been raised on behalf of the second to fourth Appellants. We have analysed this at some length above. Based on this analysis, it seems to us that the proportionality challenge to the Secretary of State’s decisions savours more of a preliminary skirmish than a major battle having final and decisive consequences. The real battleground for representations, evidence, assessment and determination relating to proportionality, which will include any legal duty of enquiry on the part of the Secretary of State which may arise and will have a clear section 55 dimension, will materialize in the future, in the likely event that the Secretary of State will proceed to make deprivation of citizenship orders and, subsequent thereto, deportation or removal orders.

We conclude therefore that this ground of appeal has no merit.

The policy issue which arises in these appeals is a reflection of the lean, economic model for which the legislature opted in devising section 40 of the 1981 Act. A deprivation of citizenship measure is lawful only where the Secretary of State is “ … satisfied that deprivation is conducive to the public good ”, per section 40(2). This criterion is not defined. Nor is there any provision in section 40 requiring the Secretary of State to have regard to a series of obligatory considerations.

The Secretary of State has chosen to adopt a policy relating to the exercise of the power conferred by section 40(2). The Appellants do not make the case that the Secretary of State failed to take this policy into account. Indeed it is apparent from the text of the impugned decisions that the decision makers were alert to it. Rather, this ground of appeal is to the effect that (a) the policy requires the subjects of this type of decision to have engaged in serious organised crime, and, (b) the Appellants’ criminality is not of this character. The Secretary of State, it is argued, erred in law accordingly. The consequential error of law of the FtT was its failure to diagnose the Secretary of State’s legal misdirection and, in this context, Mr Jafferji further submitted that there was an insufficiency of material before the FtT.

The material point of reference is chapter 55 of the “UK Visas and Immigration Nationality Instructions: Volume 1” which deals with deprivation (section 40) and nullity. This is a publication of the Secretary of State, available in the public domain. It takes the form of policy guidance and instructions directed to case workers. The subject matter of chapter 55 is “Deprivation and Nullity of British Citizenship”. This contains, at paragraph 55.4.4, the following statement:

This ground of appeal invokes a further Government publication. This is a Command Paper entitled “Serious and Organized Crime Strategy” (CM8715) published in October 2013. The Foreword to this publication, signed by the Home Secretary, employs the language “ serious and organized crime ”. The expressed purpose of the publication is to broadcast to the public a new cross - Government strategy which has been adopted in conjunction with the creation of the National Crime Agency and certain policing reforms. The use of the descriptor “ serious and organized ” is not uniform. In some parts of the Foreword, the adjective employed is “ organized ”. The same applies to the “Executive Summary” and other parts of the publication.

CM8715 is a relatively bulky and dense publication. It consists of 75 pages. The submissions of Mr Jafferji escorted us to various passages, all of which we have considered. In the course of argument we suggested that its structure is broad and open ended and its language open textured. For the purpose of disposing of this ground of appeal, we propose to make brief references only to the text:

Applying an orthodox public law analysis, chapter 55 of the “UK Visas and Immigration Nationality Instructions: Volume 1” was plainly a material consideration to be weighed by the decision maker in all of these cases. As already noted, there is no suggestion that it was not considered in the decision making process. Our evaluation of this dimension of the Appellants’ challenge is as follows:

Section 40(2) of the 1981 Act confers on the Secretary of State a discretionary power to deprive a person of British citizenship.

The statutory pre-condition to the exercise of this power is that the Secretary of State must be “ satisfied ” that “ deprivation is conducive to the public good ”. This is a paradigm public law empowering provision. Thus in every case the Secretary of State’s decision, inter alia, must not lapse into irrationality, must be informed by taking into account all material considerations (which include chapter 55) and must not be contaminated by the intrusion of immaterial considerations. This is not an exhaustive checklist.

While Chapter 55 purports to supply a definition of “ conducive to the public good ” this cannot have the effect of supplementing the statute. It belongs purely to the realm of a legislation related policy.

Paragraph 55.4.4 does no more than indicate the kind of cases in which the statutory power might be exercised and it does so without prescription. It does not purport to be exhaustive or comprehensive. This is particularly clear from the words “ unacceptable behaviours ”. It is difficult to conceive of a looser, more open – ended linguistic formula. Fundamentally, we consider that paragraph 55.4.4 simply provides case workers with some basic guidance as to how the statutory power might be exercised

The exercise of the statutory power in every case must be harmonious with the statutory language, accord with the underlying legislative intention and further the policy and objects of the statute, duly infused with the avoidance of fetter of discretion in accordance with the hallowed British Oxygen principle ( British Oxygen v Board of Trade [1971] AC 610).

The main evidence considered by both the Secretary of State and the FtT relating to the nature and gravity of the Appellants’ offending was the transcript of the sentencing hearing. Part of this is digested in the Secretary of State’s decisions, while other parts are summarized or reproduced in the decisions of the FtT. Giving effect to the analysis in the foregoing paragraph, we consider that it was rationally open to the decision maker to conclude that the Appellants’ offending was embraced by the inexhaustive, elastic terms of paragraph 55.4.4 under the rubric of “unacceptable behaviours”.

We give separate consideration to CM8715. The first question in our view is whether this publication had the status of an obligatory material consideration. Chapter 55 of the “UK Visas and Immigration Nationality Instructions: Volume 1” makes no reference to it. This is unsurprising, given that chapter 55 pre-dates CM8715. Thus there is no express nexus between the two policies. The only link is constituted by the phrase “ serious organized crime ”. For present purposes, we are prepared to assume, without deciding, that the two policies are sufficiently inter-related to fall to be considered together.

Mr Jafferji, very sensibly, did not seek to argue that the criminal behaviour of any of the Appellants was not serious . His contention, rather, was that it was not of the character to attract the appellation of serious organized crime . In exchanges with the bench, Mr Jafferji was disposed to accept that criminality of this kind could in principle amount to serious organized crime. He further agreed that the question of what constitutes serious organized crime involves a wide margin of appreciation on the part of the decision maker. Finally, he did not demur from our proposition that CM8715 is framed in terms which are not precise, exhaustive or comprehensive.

Our analysis of chapter 55 above applies also to CM8715. In addition, we consider it instructive to reflect on the legal character and effect of the latter kind of publication. CM8715 is, in our judgment, a classic illustration of a non-prescriptive, open-ended and inexhaustive Government policy publication. It contains no bright line or hard edged rules or definitions. Indeed, by its terms it is at pains to avoid these. Furthermore, it does not purport to be comprehensive. Its elasticity is one of its dominant attributes. In short, it is a classic policy

Furthermore, CM8715 is a paradigm illustration of a policy which falls to be viewed through the analysis of Lord Clyde in R (Alconbury Developments) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, at [143]:

The heavy emphasis on policies which this ground of appeal involves raises the risk of distracting from the ultimate question. That question, giving precedence to the primary legislation, is whether the Secretary of State’s conclusion that to deprive the Appellants of their British citizenship status is conducive to the public good was one that was reasonably open to her. This is not a question of fact. Rather, as the word “ satisfied ” indicates, it is a matter of evaluative judgment on the part of the Secretary of State. Furthermore, neither of the policies can have the effect of diluting, restricting or modifying the statutory language. The criterion of “ conducive to the public good ” constitutes the ultimate touchstone. There is no challenge based on the disregard of material facts or factors or the intrusion of something alien. Nor is there any irrationality challenge – and any such challenge would in our judgment be doomed to fail in any event. Viewed through this prism, and taking all of the foregoing into account, we consider that the Secretary of State’s decisions withstand this ground of challenge.

We further consider that the Secretary of State’s evaluative assessment that the Appellants’ offending fell within the embrace of this policy is uncontaminated by any error of law. Accordingly, neither the Secretary of State’s decision nor the decisions of the FtT can be impugned on this ground.

All representatives were in agreement with our analysis that this ground is inextricably immersed within the first ground, as [14] – [44] above demonstrate. Accordingly, in common with the first ground, this ground too must fail.

Part 5A of the Nationality, Immigration and Asylum Act (the “2002 Act”), which has been in force since 28 July 2014, is introduced by section 117A (1) in these terms:

breaches a person’s right to respect for private and family life under Article 8, and

as a result would be unlawful under section 6 of the Human Rights Act 1998. ”

The question for this Tribunal is whether the consideration which the FtT gave to Part 5A gave rise to any material error of law in its decisions. This ground of appeal is formulated in the skeleton argument on behalf of the Appellants thus:

As already acknowledged, it was not necessary for the FtT to review the legality of the Secretary of State’s decisions by reference to the regime constituted by Part 5A of the 2002 Act, as it was of no application. The FtT, however, did so by reference to the probability of deportation. We are unable to detect any resulting material error of law in any event. Our first conclusion on this ground of appeal is that the decisions of the FtT are not vitiated by reason of conducting this exercise. While the FtT was in error to do so, we consider that such error was immaterial.

It may further be said that the FtT’s excursus into Part 5A, if anything, benefited the Appellants, since its effect was to subject the legality of the Secretary of State’s decisions to a series of checks, standards and requirements which did not have to be considered. Furthermore, the FtT, in consequence, conducted a considerably more elaborate proportionality balancing exercise than the circumstances required. The Part 5A exercise which it carried out conferred no discernible advantage on the Secretary of State and none was identified in argument.

The discrete argument, set forth above, that the FtT’s Part 5A exercise “ … led it into error in assessing whether the deprivation decisions were inconsistent with Article 8 rights ” was advanced faintly and without elaboration. No specific, concrete material “ error ” was particularised in argument and we can identify none. Furthermore, the Article 8 issues were inextricably bound up in the section 55 ground of appeal which we have considered in extenso and rejected in [14] – [46] above. We further find merit in Ms McGahey’s submission that the exercise conducted by the FtT was in substance a hypothetical one, in which we discern traces of an abundance of caution.

For these reasons we reject this final ground of appeal.

At the eleventh hour, the first of the four Appellants, Mr Ahmed, was left unrepresented. The Tribunal during the morning of the hearing received a belated letter from his instructed solicitors asserting that Mr Ahmed had “ withdrawn his instructions ”, in circumstances where (it was said) the solicitors had been providing their services on a pro-bono basis and this Appellant had been “ paying for Counsel’s fees on a private basis ” but had no further resources to do so. There was no application to adjourn the hearing. As appears from the formal sections at the beginning of this judgment, we had the benefit of a skeleton argument from counsel previously instructed on behalf of this Appellant. This contained the following statements:

None of the Appellants’ grounds of appeal having been made out, we dismiss all appeals and affirm the decisions of the FtT.