Case No. UKUT-00085-(IAC)

[2013] UKUT 00439 (IAC). In that case, the Tribunal held that an appeal under section 40A of the 1981 Act requires the Tribunal to consider whether the Secretary of State’s discretionary decision to deprive a person of British citizenship should be exercised differently. That consideration will involve (but not be limited to) ECHR Article 8 issues, as well as whether deprivation would be a disproportionate interference with a person’s EU rights. In carrying out its task, the Tribunal is under no obligation to assume that the person concerned will be removed from the United Kingdom in consequence of the deprivation decision. The Tribunal is, however, required to determine the reasonably foreseeable consequences of deprivation which may, depending on the facts, include removal. 59. Mr Jarvis told me that the Secretary of State does not consider that a deprivation appeal can ever encompass the possibility of removal. He did not, however, elaborate upon this view and I see no reason why, as a matter of law, the reasonable foreseeability test, elucidated in Deliallisi , should be circumscribed in this or, indeed, any other way. 60. Having said that, it seems to me the facts of the present case are indicative of why, in practice, the reasonably foreseeable consequences of deprivation are often unlikely, as a general matter, to include removal. Even in a case where, unlike Deliallisi , the Secretary of State has not expressed an intention to grant leave, immediately upon deprivation taking place, the factual matrix (including the availability of rights of challenge to possible future decisions of the Secretary of State) will often preclude the Tribunal from identifying removal as a reasonably foreseeable consequence of deprivation, viewed from the vantage point of the hearing of the deprivation appeal. “ 41. The important point Pirzada illuminates is that, before one reaches the question of discretion and A rticle 8 ECHR issues, the Tribunal must be satisfied that the circumstances for exercising discretion exist. In other words, in an appeal against a section 40(2) decision, deprivation must be “conducive to the public good”. In an appeal against a s ection 40(3) decision, the registration or naturalisation must have been obtained by means of one or more of the three actions described in paragraphs (a) to (c). 42. I n the case of s ection 40(2), the matter on which the respondent must be satisfied – involving “the public good” – is one in respect of which the respondent’s conclusion will almost inevitably be determinative. In other words, it is very hard to see how, on a particular set of facts, the Tribunal could find that deprivation would not be conducive to the public good if, on those facts, the Secretary of State has decided that it would. 43. Nevertheless, as with criminal deportation, a f inding that something may be in the public interest or conducive to the public good will not be necessar ily d ispositive of the overall appeal. The T ribunal will be required to allow the appeal, notwithstanding such a finding, if to do otherwise would violate the United Kingdom ’s obligations under the ECHR. The T ribunal would also have to exercise its discretion differently from that of the respondent, if some particular (we would venture to say , exceptional) feature of the case necessitated it . 44. In the case of section 40(3), the matter of which the Secretary of State must be satisfied is much more hard-edged. The fact that the subsection speaks of the Secretary of State being “ satisfied ” that fraud etc was employed does not mean the question for the Tribunal is merely whether the Secretary of State was rationally entitled to conclude as she did. In