Case Nos: CA-2023-002487 - [2025] EWCA Civ 957

Discussion

The legal issues: issues of principle

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’ main arguments

Institutional competence

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.

Does the reasoning in U3 only apply to assessments of risk?

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.

The burden of proof

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.

Findings of fact on the balance of probabilities

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.

Proportionality/intensity of review

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.

Procedure

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.

D7

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.