Case No. UKUT-00118-(IAC)

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. 38. 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. 39. 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. 40. 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. 41. 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. 42. 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. 43. 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. 44. 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 . 45. 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. 46. 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. 47. For the reasons elaborated above, we conclude that the first ground of appeal has no merit. GROUND 2: THE EU LAW ISSUE 48. 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. 49. 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. 50. 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). 51. The FtT dealt with this discrete issue as follows. In its decision in Mr Rauf’s appeal, the Tribunal stated, at [53]: “ Depriving the Appellant of his British citizenship will also deprive him of citizenship of the European Union. However the case of Pham relied upon does not find that the Government does not have the power to do this. The UK Government is sovereign in this respect, with the proviso that the decision must accord with the principles of proportionality and must not render a person stateless. As we have found the Appellant will not be stateless and the decision is proportionate. In any event this Appellant has never exercised any rights conferred by his EU citizenship. ” In Mr Khan’s decision there is a similar passage at [27]. In Mr Aziz’s decision there is a passage to like effect at [40]. We observe that none of these passages expressly distinguishes between a decision to make a deprivation order and the order itself. All of them are to be considered in conjunction with the FtT’s clear awareness of the reasonably foreseeable consequence of future decision making processes relating to deportation or removal of the Appellants from the United Kingdom. 52. In