Case No. UKUT-00118-(IAC)

70. 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: “ This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts - (a) breaches a person’s right to respect for private and family life under Article 8, and (b) as a result would be unlawful under section 6 of the Human Rights Act 1998. ” The Secretary of State’s decisions were not made “ under the Immigration Acts ”, as these enactments do not include the 1981 Act: see the definition of “ the Immigration Acts ” in section 61 of the UK Borders Act 2007. Historically, statutes dealing with British nationality have never been embraced by the recurring statutory phrase “ the Immigration Acts ”. As a result Part 5A was inapplicable. This is common case. 71. 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: “ This error is not immaterial. It shows that the FtT’s approach to the appeals was confused. This confusion led it into error in assessing whether the deprivation decisions were inconsistent with Article 8 rights; and in exercising discretion generally as to whether the deprivation decisions should have been made. ” The riposte on behalf of the Secretary of State is the following: “ … The FtT made clear that it was considering the hypothetical situation in which there was an appeal against a decision to deport. The FtT may well have found such a hypothetical consideration a useful check on its decision under Article 8 about the decision to deprive of citizenship …. The Respondent accepts that the provisions did not apply to the decision to deprive of citizenship. The FtT did not suggest that they did. The Respondent did not apply them when making her decisions. The Respondent submits that hypothetical consideration of the deportation issue by the FtT has no effect on its properly reached conclusions in respect of the deprivation of citizenship. ” As these passages make clear, the final ground of appeal did not generate elaborate argument on behalf of the Appellants and this was reflected at the hearing, by which stage this ground had receded to a point where it was quite subsidiary to the three principal grounds addressed above. 72. 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. 73. 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. 74. 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. 75. For these reasons we reject this final ground of appeal.