Case No. UKUT-00118-(IAC)

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. The Legal Context 26. The first ingredient in the legal context is that each of the Appellants, by virtue of naturalisation, enjoys the status of British citizens. A comprehensive code for the acquisition and loss of British nationality (now British citizenship) has been devised by Parliament since the first statutory intervention of note, namely the British Nationality and Status of Aliens Act 1914, which repealed the Naturalisation Act 1870. Following the Commonwealth Legal Conference held in London in 1947, the British Nationality Act 1948 sought to give effect to the principles of the Canadian Citizenship Act 1946 for general application throughout the Commonwealth. It reflected the principle that people of each of the self-governing countries of the Commonwealth had a particular status as citizens of their own country and a common status as members of the Commonwealth family. A limited power to control the immigration of Commonwealth citizens into the United Kingdom was introduced via the Commonwealth Immigrants Act 1962. In due course the Immigration Act 1971 and the 1981 Act were introduced. 27. Throughout history, British subjects were free at common law and/or by statute to enter the United Kingdom and reside there. This is the fundamental right conferred by the status of British citizenship. Under the 1981 Act, British citizenship is the only status which confers a legal right to live in the United Kingdom and to come and go at will. The possibility of acquiring this status by naturalisation has long been recognised by statue (see in particular the 1948 Act) and is now governed by section 6 of and Schedule 1 to the British Nationality Act 1981. The effect of modern British nationality laws is that loss of the right of abode in the United Kingdom is the main consequence of depriving a person of British citizenship. The affected subject also suffers the loss of associated and consequential rights, duties and opportunities – in particular voting, standing for election, jury service, military service, eligibility for appointment to the Civil Service and access to state benefits, state financed healthcare and state sponsored education. Fundamentally, the relationship between the individual and the State, which lies at the heart of citizenship and nationality, is extinguished. 28. Interestingly, as a perusal of the 1948 and 1981 statutes indicates, successive Governments have declined to define comprehensively the rights attaching to British citizenship through the vehicle of legislation. The Government perspective on the essential elements of citizenship was expressed in the Green Paper “The Governance of Britain” (CM7170) published in July 2007, which focuses (inter alia) on the concepts of membership of the community, national identity, common British values and the constitution. Another report of note in this context is “The Path to Citizenship: Our Common Bond”, which forms part of the background to the 2009 Act. 29. The second main ingredient in the legal context is the decision-making structure devised by the 1981 Act. We have analysed this in [11] – [12] above. In short, decisions of the kind under challenge in these appeals have the status of a notice of intention, under section 40(5) of the 1981 Act, to make a deprivation of citizenship order. If the decision under section 40 (the same structure applies to both section 40(2) and section 40(3)) is not challenged by appeal to the tribunal, the next stage contemplated is a formal order by the Secretary of State. The unexpressed (though perhaps implied) premise is that no deprivation order will be made while an appeal to the tribunal remains undetermined. 30. Loss of British citizenship occurs at the second, rather than the first, of the aforementioned stages. A deprivation of citizenship order – emphatically – does not equate to either removal or deportation of the affected subject from the United Kingdom. Both removal and deportation are governed by other statutory regimes entailing specified procedures, requirements and rights. Removal and deportation decisions may in certain circumstances be challenged by appeal or judicial review proceedings. British citizens are immune from removal and deportation action. Thus they must be deprived of their British citizenship status before either of these courses can be pursued. 31. Accordingly, neither a decision (or notice of intention) to make a deprivation order (these cases) nor a deprivation order itself has the immediate or direct consequence of the affected subject’s removal or deportation from the United Kingdom. It is, of course, reasonable to assume that a notice of intention to make a deprivation of citizenship order will normally be given as a prelude to a deprivation order and a later decision to remove or deport the affected person from the United Kingdom. But the initial decision is correctly to be viewed as a first step. Future steps and stages will require the subject to be actively involved and, in particular, will generate the Secretary of State’s duty under section 6 of the Human Rights Act 1998 to avoid conduct incompatible with protected Convention rights, will engage the common law principles of a fair decision making process, and will also trigger the constraints imposed by any applicable statutory code (for example the UK Borders Act 2007) and established principles of public law. 31. There is no shortage of judicial learning and guidance relating to section 55 of the 2009 Act, which forms the next component of the legal context. The leading decisions, which emanate from the Supreme Court and the Court of Appeal, were reviewed by this Tribunal in JO and Others (Section 55 Duty) Nigeria [2014] UKUT 00517 (IAC), MK (Section 55 – Tribunal Options) Sierra Leone [2015] UKUT 00223 (IAC) and Kaur (Section 55/Public Interest Interface) [2017] UKUT 14 (IAC). In MK , this Tribunal held that where a breach of section 55(1) is canvassed, the onus rests on the Appellant to establish this on the balance of probabilities and there is no onus on the Secretary of State. This is not contested by these Appellants. 32. In JO Nigeria , this Tribunal, having drawn attention to the twofold duties enshrined in section 55, stated at [13]: “ The question of whether the duties imposed by Section 55 have been duly performed in any given case will inevitably be an intensely fact sensitive and contextual one. In the real world of litigation, the tools available to the court or tribunal considering this question will frequently, as in the present case, be confined to the application or submission made to the Secretary of State and the ultimate letter of decision …. ” Reflecting this Tribunal’s assessment in MK Sierra Leone of where the onus rests, in SS (Nigeria) v SSHD [2013] EWCA Civ 550 Mann J added, at [62]: “ In this appeal Counsel for the appellant placed considerable emphasis on the need for the Tribunal to satisfy itself as to the interests of the child in such a way as suggested an inquisitorial procedure. I agree with Laws LJ that the circumstances in which the Tribunal will require further enquiries to be made, or evidence to be obtained, are likely to be extremely rare. In the vast majority of cases, the Tribunal will expect the relevant interests of the child to be drawn to the attention of the decision maker by the individual concerned. The decision maker would then make such additional enquiries as might appear to him or her to be appropriate. The scope for the Tribunal to require, much less indulge in, further enquiries of its own seems to me to be extremely limited, almost to the extent that I find it hard to imagine when, or how, it could do so. ” 33. This Tribunal examined this issue in a little detail in JO Nigeria ( supra ), at [10] – [13]. It seems to us that given the particular course and contours of the Secretary of State’s decision making processes in these appeals, considered in tandem with the full factual and legal context, the observation of Mann J applies a fortiori in the instant context. While the possibility of a duty of proactive enquiry on the part of the Secretary of State in a given context was also canvassed in JO Nigeria , at [14], this Tribunal declined to determine this discrete issue on a hypothetical basis, through recognizing its potential to arise in a specific, concrete fact sensitive context. We shall explain below why we consider that no such duty arose in any of these cases. 34. The context in which the decisions of the Supreme Court and the Court of Appeal noted in Kaur were made, is of some significance. These were all cases involving decisions having final, permanent or long term consequences, by which the individual was compelled to leave the United Kingdom with no further decision to follow. The context enveloping the Secretary of State’s decisions underlying these appeals is to be contrasted, as demonstrated above. Furthermore, issues of the kind canvassed under the banner of this ground of appeal are to be evaluated realistically and, where appropriate, robustly, as the following passage in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550 demonstrates, at [58]: “ I would not wish for a moment to sideline the importance of s.55 of the 2009 Act or the guidance issued under it … or the statements of high authority to the effect that the child’s best interests must be properly gone into. But in the circumstances of this case it is in my judgment wholly unrealistic to suppose that any further evidence, let alone enquiries (whether of the child himself or anyone else) …. might offer the least possibility of establishing a case under Article 8 sufficiently strong to prevail over the extremely pressing public interest in the appellant’s deportation. ” [Our emphasis] Notably, this was stated in the context of a decision having final character and long term consequences, namely deportation. This passage also reflects this Tribunal’s assessment of the interaction between section 55 and Article 8 ECHR in JO (Nigeria) , at [7]. 35. The question of whether in any given context the Secretary of State’s duty under section 55(1) has been discharged will also require consideration of the decision- making process adopted in the individual case. As regards these appeals, this is outlined in [6] and [15] – [16] above. The effect of the decision-making process in the present cases was that the second to fourth Appellants had ample opportunity to make to the Secretary of State such representations and to provide such evidence bearing upon the children’s best interests as they wished. 36. We consider that in this decision-making context , the Secretary of State was entitled to expect the second to fourth Appellants and their representatives proactively to equip her with the representations and information necessary to enable an adequate best interests assessment to be carried out or to suggest other appropriate paths of enquiry. While this analysis will not invariably apply to every context, we consider it applicable in these cases. Secondly, we find no evidential foundation to support the contention that in any of these cases the Secretary of State was under a duty of further proactive enquiry. We accept the submission of Ms McGahey QC that the Appellants’ argument to the contrary is made in a vacuum. Thirdly, bearing in mind the features of the context highlighted above, we are satisfied that the substituted decisions contain an adequate best interests assessment. This is our primary conclusion and it is sufficient to defeat the first ground of appeal. 37. While we have found merit in the Respondent’s submission that the Appellants did not place any best interests material before the FtT, other than the witness statements provided and the oral evidence elicited in questioning, it is not disputed that the second to fourth Appellants will be at liberty to make such representations and provide such evidence bearing on their children’s best interests as they are desirous of providing at the future 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