Case No. UKUT-00118-(IAC)

Qari Abdul Rauf Abdul Aziz Appellants And SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation For the Appellants: Shabir Ahmed: Mr R Sharma, of counsel, instructed by Platt Halpern Solicitors (by written submission only) Adil Khan, Qari Abdul Rauf and Abdul Aziz: Mr Z Jafferji, of Counsel Instructed by Burton & Burton Solicitors For the Respondent: Ms C McGahey QC and Mr V Mandalia, of counsel, instructed by The Government Legal Department (i) While the two fold duties enshrined in section 55 of the Borders, Citizenship and Immigration Act 2009 are imposed on the Secretary of State, the onus of making representations and providing relevant evidence relating to a child’s best interests rests on the appropriate parental figure. (ii) A failure to discharge this onus may well defeat any argument that there was a proactive duty of enquiry on the Secretary of State in a given context. (iii) In deprivation of citizenship cases, section 55 issues arise at two stages: at the deprivation of citizen stage and at the later stage of proposed removal or deportation. (iv) As the subject of national citizenship lies exclusively within the competence of Member States, EU law has no role to play in deprivation cases: G1 v SSHD [2012] EWCA Civ 867 applied. (v) The Secretary of State’s deprivation of citizenship policy confers a wide margin of appreciation on the decision maker. (vi) Part 5A of the Nationality, Immigration and Asylum Act 2002 does not apply to deprivation of citizenship decisions as such decisions are not made under the Immigration Acts. (vii) There would be a considerable saving of human and financial resources with consequential reduced delay if deprivation of citizenship and deportation or removal decisions were to be made jointly. DECISION Introduction 1. This is the decision of the panel to which both members have contributed. 2. 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. 3. 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. The Appellants’ Criminality 4. 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. 5. Individually the Appellants were punished as follows: (i) 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. (ii) 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. (iii) 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. (iv) 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. There were other convicted offenders who are not involved in these appeals. Statutory Framework 6. Section 40 of the British Nationality Act (the “1981 Act”), under the rubric of “Deprivation of Citizenship”, provides: “(1) In this section a reference to a person's “citizenship status” is a reference to his status as— (a) a British citizen, (b) a British overseas territories citizen, (c) a British Overseas citizen, (d) a British National (Overseas), (e) a British protected person, or (f) a British subject. (2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good. … (4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless. … (4A) But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if— (a) the citizenship status results from the person's naturalisation, (b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and (c) the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory. (5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying – (a) that the Secretary of State has decided to make an order, (b) the reasons for the order, and (c) the person’s right of appeal under section 40A (1) or under section 2B of the Special Immigration Appeals Commission Act 1997. (6) Where a person acquired a citizenship status by the operation of a law which applied to him because of his registration or naturalisation under an enactment having effect before commencement, the Secretary of State may by order deprive the person of the citizenship status if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of— (a) fraud, (b false representation, or (c) concealment of a material fact.” The Secretary of State’s decisions were all made under section 40(2) and (5). The Secretary of State’s Decisions 7. 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: (i) 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. (ii) 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. (iii) In each of the aforementioned three cases fresh decisions, dated 02 December 2015, followed. (iv) 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. The FtT promulgated its decisions on 07 April 2016. In each case the FtT upheld the decisions of the Secretary of State. 8. 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. 9. 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. 10. 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. 11. In all four cases, the Secretary of State’s decisions contain the following passages: “ In accordance with section 40(5) of the British Nationality Act 1981, the Secretary of State gives notice of her decision to make an order to deprive you [name] of British citizenship under section 40(2) …. This is because the Secretary of State is satisfied that it would be conducive to the public good to do so…. Having considered all relevant circumstances, the Secretary of State considers deprivation of your British citizenship to be reasonable and proportionate …. In accord [sic] with section 40(4) …. the Secretary of State is satisfied that such an order will not make you stateless. You still hold Pakistani nationality as Pakistan Nationality law allows for a person to hold dual nationality. ” In all four cases, under the rubric “ right of appeal ”, the Secretary of State’s decisions also stated: “ You may appeal to the Asylum and Immigration Tribunal against the decision to deprive you of your citizenship, under section 40A (1) …. In the eventuality that you are deprived of your British citizenship, the Secretary of State will also give consideration to pursuing your removal or deportation from the United Kingdom. You will be receiving a separate notification if such a decision is made …. Should any appeal in respect of the notice to deprive you of your British citizenship be dismissed, the deprivation order under section 40(2) … depriving you of your British citizenship will be served on you. ” The Secretary of State’s Decisions Analysed 12. The correct analysis of the Secretary of State’s decisions, considered in their statutory context, is in our judgment the following: (a) 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”. (b) 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. (c) 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. (d) 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. 13. 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 . 14. 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 15. Permission to appeal to the Upper Tribunal has been granted to each of the Appellants on the following five grounds: (i) The Respondent’s decision was vitiated by a failure to discharge her duty under s. 55 of the Borders, Citizenship and Immigration Act 2009; (ii) 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; (iii) 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; (iv) 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; (v) The FtT erred in law in applying Part 5A of the Nationality, Immigration and Asylum Act 2002. We shall address each of the permitted grounds of appeal seriatim. GROUND 1: THE SECTION 55 ISSUE 16. 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: “(1) The Secretary of State must make arrangements for ensuring that— (a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom; and (b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need. (2) The functions referred to in subsection (1) are— (a) any function of the Secretary of State in relation to immigration, asylum or nationality; (b) any function conferred by or by virtue of the Immigration Acts on an immigration officer; (c) any general customs function of the Secretary of State; (d) any customs function conferred on a designated customs official. (3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).” [Our emphasis] It is common case that section 55 applied to the decisions of the Secretary of State under challenge. 17. 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: “ Deprivation of your citizenship (as distinct from deportation) will not, in itself, have a significant effect on the best interests of your children. It will neither impact on their or your wife’s status in the United Kingdom, nor is there any evidence that it will impact on their education, housing, financial support or contact with you. The Secretary of State acknowledges that deprivation may have an emotional impact on your children. However, having taken into account the best interests of your children as a primary consideration in discharge of her section 55 duty, the Secretary of State considers that the public interest in depriving you of citizenship clearly outweighs any interest your children might have in your remaining a British citizen. British citizenship is a privilege that confers particular entitlements and benefits, including the right to a British passport and the right to vote in general elections. It is not in the public interest that individuals who engage in serious and/or organised crime, which constitutes a flagrant abuse of British values, enjoy those entitlements and benefits … Having considered all relevant circumstances, the Secretary of State considers deprivation of your British citizenship to be reasonable and proportionate. ” The essential question which arises in these appeals is whether, within the compass of the grant of permission to appeal, these passages in the decisions disclose any material error of law on the part of the Secretary of State’s decision maker. 18. During the FtT phase the initial case management directions notified the parties of a forthcoming case management review hearing (“CMR”) and included the following : “At least three days before the CMR all parties shall file and serve a skeleton argument addressing the relevance of section 55 of the 2009 Act to each case …” This prompted a letter from the Secretary of State’s representative stating : “…. The Secretary of State, following submission made by the legal representatives for the above named [the three Appellants concerned], has decided to reconsider the decisions in accordance with the Secretary of State’s obligations under section 55 …. Therefore the Secretary of State has decided to withdraw the decisions ….” It is common case that the withdrawal of the Secretary of State’s initial decisions and their substitution by new decisions were precipitated by the grounds of appeal and written representations made on behalf of the three Appellants concerned in response to the FtT’s directions. These representations addressed the issue of the impact of the impugned decisions on the welfare of the children concerned. 19. We turn to examine the case made to the FtT on this issue by these three Appellants. In summary: (a) In the case of the first Appellant,