Case No. UKUT-00118-(IAC)

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, 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): “ Judge Baird asked the Appellant some questions to ascertain the circumstances of him and his family. The Appellant confirmed that he is still on licence, the terms of which prohibit him from going to Rochdale. He lives in Swinton, Manchester. He is working part time in a carpet shop. His wife is still living in Rochdale. He has one son aged 7 who is living with his mother in a council property. He does not see his child. He explained that this was because the social worker will not allow it. He has no telephone contact either. He has cousins, nephews and his wife’s family in the UK and he is in contact with them. His wife is a British citizen as is his son … He did see his son when he was in prison. He was asked whether his wife had said how his absence is affecting his son and he responded that the child is very upset and it is affecting his education. His wife lives on state benefits and is struggling financially so their son does not get the things that he needs. ” (b) 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: “ He told us that he has five children between the ages of 9 and 16. They went to Pakistan to see relations in April 2015. He said that none of them have any medical problems but are upset. When asked how he thought that deprivation of his British citizenship would affect them, he said that it would be a very hard life for them without him. They would be very upset. He said that this was because he looks after them financially and takes them to and from school. His wife cannot drive and she is not educated and there are no other relatives in the UK who can look after the children … he told us that all his children were in education and doing well at school. ” As appears from the following passage, this Appellant evidently did not proactively alert the FtT to the full picture: “ In subsequent re-examination it came out that in fact the Appellant is not living with his wife and children currently. He said it was a condition of his licence that he cannot go to Rochdale which is where they live. He sees them on Saturdays during the day. He confirmed therefore that he is not currently taking or collecting them from school nor is he in employment and providing for them financially … he has not worked since he was released from prison in November 2014. His licence will expire in November 2017 and he is on the Sex Offenders Register for an indefinite period. ” (c) 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. This Appellant’s assertion in examination in chief that he looked after his children financially and accompanied them to and from school, without illumination or elaboration, was plainly misleading. The FtT’s Approach 20. 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: “ He is currently not having contact with his child. His wife has looked after the child all the time he has been in prison. She has also been deprived of her husband and his income for that period of time …. There was no evidence of the effect his separation from the child may have had on the child … Given the seriousness of the crimes committed by the Appellant, very considerable weight must be given to the public interest in his removal. The family circumstances of this Appellant, even put at their highest, which would include him being able to resume living with his wife and child, do not render his removal, in all the circumstances, disproportionate. ” 21. 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: “ The second alleged impropriety is that the Secretary of State did not make adequate or any enquiries as to where the best interests of the children lie and the Appellant is thus unable to answer that. However, the Secretary of State has clearly taken the best interests of the children at their highest and said at paragraph 7 of the Notice that the public interest outweighed the best interests of the children. In other words, even if the best interests of the children required the Appellant to remain a British citizen and thereafter in the UK, those interests are outweighed by the public interest because of the gravity of his offending behaviour …. We find that being the case the Secretary of State has adequately dealt with the best interests of the children and fulfilled her obligations under section 55 …. Conversely, the Appellant has adduced no evidence whatsoever about the children’s best interests. We have been provided with no evidence from their GP, school or even their mother that they will suffer by either the Appellant losing his British citizenship or being removed from the UK. ” Next the FtT reasoned that to deprive this Appellant of his citizenship would not breach any person’s Article 8 rights: “ It would not prevent the Appellant from being with and caring for his children if permitted to do so. It would be open to him to seek leave to remain in the UK on the basis of his family life. Furthermore, given the grave nature of the offending and the fact that it was an organized crime perpetrated with others over a sustained period, we find the decision to deprive the Appellant of his British citizenship entirely appropriate. The consequences of him no longer being a British citizen on either himself or his family members is not such as to outweigh the public interest in the deprivation. ” In a later passage, the FtT stated: “ The Appellant claims that his wife cannot look after the children without him. However, the fact is she has done so for the three years since his arrest and since his release. Again apart from the Appellant’s bare assertion, there was not a shred of evidence to support this and most strikingly nothing from his wife … The Appellant claims that his children have been badly affected by their separation from the Appellant, again not a shred of evidence to that effect …. We have been provided with no evidence that the Appellant even has a genuine and subsisting relationship with either his wife or his children. ” The FtT’s ultimate conclusion was that Article 8 rights did not outweigh the public interest in deportation . 22. 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 accept that he has a family life with his wife and children although this is at the moment severely restricted with only supervised contact with his children being allowed …. We take into account that under the terms of his licence, the Appellant cannot go to Rochdale. His wife and children had to live without him when he was in prison though we do accept and take into account that they did have some contact with him by visiting him. We have considered the best interests of his children as we are required to do. Clearly the children have suffered some unpleasantness at the hands of other people due to the crimes committed by their father … Despite that, they do not want their father to have to go to Pakistan. His absence has created financial difficulties for the whole family … We do not accept the evidence of the Appellant’s wife about the problems her youngest child had when his father went to prison. He was just a baby and at one year old would be unlikely to be affected as she claims. We would also say that we find it highly unlikely that it is the case that the Appellant’s wife is the only person who can look after her parents. She has siblings in the UK and there is in any event no evidence of the level of care required. ” The FtT then expressed the following omnibus conclusion: “ Having considered all the evidence in the round, we find that there are no compelling circumstances over and above those described in paragraphs 399 and 399A of the Immigration Rules that would outweigh the public interest in deportation. Indeed, we would go so far as to say that the crime being an organised and sustained series of sexual assaults on children is so serious that the family circumstances of this Appellant come nowhere close to outweighing the public interest in deportation . ” [Emphasis supplied.] Adding: “ We accept that the best interests of children in general lie in being with both parents but in all the circumstances of this case ….. those interests are outweighed by the public interest and would not render any decision to remove the Appellant disproportionate. We make this finding having considered the family circumstances at their highest, which would include the Appellant being able to resume living with his wife and children. We have no hesitation in finding that the deprivation of citizenship itself does not breach his right to a family and private life as protected by Article 8. ” 23. 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: “ No enquiries were made in these appeals. In light of the publicity, notoriety and nature of the crimes committed by the Appellants, there would plainly have been a grave impact upon the children … despite the obvious need for full and proper information with respect to the impact upon the children, the Respondent did not make any enquiries …. ” It was argued that the FtT, in failing to identify these legal defects in the Secretary of State’s decisions, had erred in law. 24. 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 25. 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.