Case No. UKUT-00085-(IAC)

Goddard CJ in Stepney Borough Council v Joffe [1949] 1 KB 599 at 602] or unduly restricted [Lord Parker CJ in Godfrey v Bournemouth Corporation [1969] 1 WLR 47 at 51]. 4.119 However, there are cases in which this approach has not been taken. John Dee Ltd v Customs and Excise Commissioners [[1995] STC 941, as explained in Banbury Visionplus Ltd v Revenue and Customs Commissioners [2006] STC 1568 at [39]-[44]] is an example. There it was permissible to require security ‘Where it appears to the Commissioners requisite to do so for the protection of the revenue’. Statute provided for a general appeal ‘with respect to… the requirement of security’. Neill LJ explained the Court of Appeal’s decision: ‘It seems to me that the ‘statutory condition’… which the Tribunal has to determine in an appeal… is whether it appeared to the C ommissioners requisite to require security. In examining whether that statutory condition is satisfied the tribunal will… consider whether the commissioners had acted in a way in which no reasonable panel of Commissioners could have acted or whether they had taken into account some irrelevant matter or had disregarded something to which they should have given weight. The tribunal may also have to consider whether the commissioners have erred on a point of law [[1995] STC 941 at 952]’. One factor that influenced the decision in this case was that the tribunal was under no duty to protect the revenue; that statutory responsibility was imposed on the Commissioners [[1995] STC 941 at 952]. It is not clear to what extent that factor affected the outcome. 4.120 A fresh exercise of the judgment is also excluded if, exceptionally, a right of appeal is given against a decision that involves a discretion which is non-justiciable. This may be because the discretion involves a consideration of a number of unrelated factors with no indication, in the legislation or the context, of which were relevant. Or it may be because the discretion involves non-legal judgments on considerations of policy, finance or social matters. In these limited circumstances, the right of appeal does not allow a tribunal to substitute its exercise of discretion for that of the decision-maker. It is limited to challenges to the legality of the decision on judicial review grounds. [See the decision of the Tribunal of Commissioners in R(H) 6/06 (especially at [24] and [39]) analysing the decision of an earlier Tribunal of Commissioners in R(H) 3/04 ]. 4.121 If discretion (or any other judgment) has to be exercised afresh on appeal, the way in which it was exercised below is not binding, but must be taken into account for whatever it is worth. As Lord Atkin explained in Evans v Bartlam : [[1937] AC 473] 33. In the case of section 40 of the 1981 Act, it cannot possibly be said that the discretionary decision to deprive a person of British citizenship involves a discretion which is non-justiciable. The decision clearly involves important considerations of public policy; but so too do very many of the discretionary decisions of the respondent taken under the immigration rules, as against which a “full” right of appeal exists, by reason of sections 84(1)(f) and 86(3)(b) of the 2002 Act. The Immigration and Asylum Chamber of the First-tier Tribunal routinely has to balance public policy considerations against individual rights and other interests, in reaching decisions in such appeals; and in doing so it will have regard to the importance attached by the respondent to public policy interests, in a particular case. 34. Accordingly, unlike the First-tier Tribunal, we do not regard the absence in section 40A of the 1981 Act of the relevant wording found in sections 84 and 86 of the 2002 Act as limiting the scope of section 40A. There is, in our view, no ambiguity, obscurity or absurdity in the wording of that section, such as might call for the application of Pepper v Hart [1993] AC 593 principles. But, even if there were, Ms Naik’s researches reveal that Parliament quite clearly intended section 40A to be construed in the way we have just described. During the passage of the Bill for the Nationality, Immigration and Asylum Act 2002, which inserted section 40A into the 1981 Act, the Minister of State, Lord Filkin , gave this assurance to Lord Avebury ( Hansard , 8 July 2002, column 508):- “The Noble Earl, Lord Russell, suggested that the only appeal is a judicial review. We do not believe that that is the case. The appeal against deprivation is a full appeal on the merits. We believe that perhaps the JCHR [Joint Committee on Human Rights] does not have that clearly in sight or perhaps we have not made it as clear as we could have done. The appellate body will be able not only to remove [sic; presumably ‘review’] the legality of the Secretary of State’s decision, but also to hear arguments at his discretion on whether or not the right to deprive should have been exercised differently. The bill proposes no restrictions on the issues which might be raised in an appeal either to an Adjudicator or, where that body had jurisdiction, to the Special Immigration Appeals Commission. The appellate body will be able to hear argument not only that the Secretary of State has failed to observe the statutory requirements, but also that his discretion whether to deprive should have been exercised differently.” If a search for the legislature’s intentions were necessary, Lord Filkin’s words could not be clearer. 35. Having identified the nature of the overarching scope of an appeal under section 40A, it is possible to identify the significance of issues such as the operation of the ECHR and of the respondent’s policy on deprivation, as disclosed in the Nationality Instructions (“the NIs ”). 36. The fact that the respondent has reached a decision, in the exercise of her discretion, by reference to her published policy regarding deprivation of citizenship is a matter to which an appellate tribunal might have regard, in deciding whether that discretion should be exercised differently. This is part of the wider principle, extrapolated from Evans v Bartlam (see above), whereby the way in which discretion was exercised by the primary decision-maker, whilst not binding, must nevertheless be taken into account by the appellate tribunal. In cases of the present kind, the application by the respondent of her policy on deprivation must be taken as indicating where, as a general matter, the respondent considers the balance falls to be struck, as between, on the one hand, the public interest in maintaining the integrity of immigration control and the rights flowing from British citizenship, and, on the other, the interests of the individual concerned and of others likely to be affected by that person’s ceasing to be a British citizen. As in similar appeals governed by the 2002 Act, the appellate tribunal must give the respondent’s policy due weight, bearing in mind that it is the respondent – rather than the judiciary – who is primarily responsible for determining and safeguarding public policy in these areas. 37. So far as the ECHR is concerned, in most cases (including the present) the provision most likely to be in play is Article 8 (respect for private and family life). If, on the facts, the appellate tribunal is satisfied that depriving an appellant of British citizenship would constitute a disproportionate interference with the Article 8 rights of that person or any other person whose position falls to be examined on the principles identified in Beoku -Betts [2008] UKHL 39, then plainly the tribunal is compelled by section 6 of the Human Rights Act 1998 to re-exercise discretion by finding in favour of the appellant. However, the fact that the scope of a section 40A appeal is wider than Article 8 means that, in a case where Article 8(2) is not even engaged, because the consequences of deprivation are not found to have consequences of such gravity as to engage that Article, the Tribunal must still consider whether discretion should be exercised differently. ” 38. One thing we would add to th at analysis is to emphasise the fact that the respondent has been charged by Parliament with making decisions concerning deprivation of citizenship. In a section 40 A appeal, the r espondent’s view should normally be accorded significant weight: see Lord