Deprivation of Citizenship: Unnecessary to Conduct a Proleptic Analysis of Deportation

Aziz & Ors v Secretary of State for the Home Department [2018] EWCA Civ 1884 (08 August 2018)

Abdul Aziz, Abdul Rauf and Adil Khan – the appellants – were convicted in 2012 of the grooming, sexual exploitation and trafficking of several teenaged girls in Rochdale. All three men were naturalised British citizens and also citizens of Pakistan. The important issue in the present appeal was whether the decision-maker and the FTT made a proper and lawful assessment at the deprivation stage of the consequences of deprivation of citizenship upon the three men and their children in relation to their rights under article 8 of the ECHR and section 55 of the Borders, Citizenship and Immigration Act 2009. The present proceedings only concerned the decision to make an order to deprive the appellants of their British citizenship pursuant to section 40 of the British Nationality Act 1981. Each appellant had children in the UK and an established private life. Depriving them of their British citizenship, which would be conducive to the public good in light of their serious offending, was the first step in their deportation to Pakistan. The Court of Appeal held that in determining an appeal against deprivation of British citizenship, a tribunal only needs to examine the reasonably foreseeable consequences of such deprivation, including the likelihood of deportation, insofar as it is necessary to assess those consequences in order to determine whether the making of the deprivation order itself was lawful and compatible with ECHR rights.

When a decision is made to deport them, they will be in a position to raise article 8 and section 55 insofar as they relate to deportation itself. In the present proceedings, the FTT followed the guidance of the Upper Tribunal in Deliallisi (British Citizen: Deprivation Appeal: Scope) [2013] UKUT 439 (IAC), and gave extensive consideration to the impact upon the appellants and their families’ rights under article 8 and section 55, should they be deported after being deprived of their citizenship. It was the view of the FTT that, given their serious offending, the appellants’ rights would not be violated by the deprivation of citizenship or by any future deportation measure. They argued that the FTT’s approach was not “entirely consistent” with Delialissi. They further argued that the decision to deprive them of their citizenship was not compatible with the executive’s policy as set out in paragraph 55.4.4 of the Home Office Nationality Instructions whereby “conduciveness to the public good means depriving in the public interest on grounds of involvement in terrorism, espionage, serious organised crime, war crimes or unacceptable behaviours.”

The Upper Tribunal

In Ahmed and Others (Deprivation of Citizenship) (Pakistan) [2017] UKUT 118 (IAC), McCloskey J dismissed their appeals. On the Delialissi point he held that the FTT had been correct to direct itself by reference to that decision and that it had lawfully and sufficiently considered the interests of the appellants and their children in relation to the appellants’ deportation.

In relation to paragraph 55.4.4, the UT held that it was rationally open to the Home Office and the FTT to rightly conclude that the appellants’ offending was covered by the words “unacceptable behaviours” in the policy. The ultimate question to consider was whether the conclusion that deprivation of British nationality is conducive to the public good was one reasonably open to the Home Secretary, which it was. Moreover, it was accepted by the appellants’ counsel that criminality of the type of which they had been found guilty could in principle be characterised as “serious organised crime” within the meaning of paragraph 55.4.4 and whether or not it should be so characterised was an evaluative judgment involving a wide margin of appreciation on the part of the relevant decision-maker (the Home Office or the FTT). The evaluative assessments by the Home Office and the FTT were lawful that the offending in each case did constitute “serious organised crime” within the meaning of paragraph 55.4.4.

The Court of Appeal

Dismissing the appeal, Sir Terence Etherton MR, Sir Stephen Richards and Sales LJ remained unsympathetic with the appellants who continued to protest their innocence even after being convicted of their appalling crimes.

The sentencing judge was clear that trafficking and sexually abusing young girls was repugnant behaviour in society’s eyes. Thereafter, the Home Office sought to deprive them of British citizenship because it is a privilege and the public interest lies in not allowing serious criminals who flagrantly abuse British values to enjoy entitlements and benefits such as the right to a British passport and the right to vote in general elections. Giving the court’s unanimous judgment, Sales LJ dealt with the points in issue in the following way.

(i) The Guidance in Delialissi

Sales LJ recalled that in Delialissi the UT imparted guidance on the approach to be followed as regards an appeal under section 40A of the 1981 Act against a decision to deprive an individual of British citizenship. The UT noted that, in distinction to section 84(1)(g) of the Nationality, Immigration and Asylum Act 2002, an appeal under section 40A did not involve any statutory hypothesis that an appellant would be removed from the UK in consequence of the deprivation decision. Nonetheless, the UT held that a FTT must determine the reasonably foreseeable consequences of deprivation which may, depending on the factual context, include removal.

In Delialissi itself the likelihood of the appellant’s removal, upon him ceasing to be a British citizen, was so remote as to be disregarded. In the present cases the FTT interpreted the UT’s guidance to mean that an assessment had to be made in each case whether it was likely that the appellant would really be deported eventually and to consider his article 8 rights and those of his family and the impact of section 55 in linkage to such hypothetical future deportation, when assessing the lawfulness of the prior step of deprivation of British citizenship.

In the round, the FTT’s approach was in keeping with the decision in AB (British Citizenship: Deprivation Delialissi Considered) Nigeria [2016] UKUT 451 (IAC) which involved a similar proleptic analysis regarding what might ultimately happen in relation to deportation. Sales LJ observed an uncomfortable tension between the correct recognition that there might be a removal decision in the future subject to its own separate appeal which the tribunal ought not to pre-judge and the decision in Delialissi which seemed to suggest that an attempt should indeed be made to pre-judge what would happen in those future proceedings.

In Sales LJ’s view, the guidance in Delialissi and AB on this point is liable to mislead tribunals in relation to how they should approach consideration of article 8, other Convention rights and section 55 in appeals concerned with deprivation of citizenship. Therefore he said:

26. … Although in a sense it is of course difficult to quibble with the formula in Delialissi that regard should be had to the reasonably foreseeable consequences of deprivation of citizenship, an examination of such consequences is only required insofar as it is necessary to make an assessment in relation to them in order to rule upon whether the making of the deprivation order itself will be lawful and compatible with Convention rights, in particular article 8, and section 55. That will depend in turn upon the reasons put forward by the Secretary of State to justify the making of the deprivation order (as distinct from any deportation or removal order which might be made at a later time).

Thus, the Court of Appeal held that in assessing the lawfulness of the deprivation decision, it had been unnecessary for the FTT to proceed further and conduct a proleptic analysis on the likelihood of a lawful deportation taking place. But the fact that the FTT did so testified to the care with which it considered the case and there was no indication that the tribunal had committed any error of law. Nevertheless, the court said that the FTT should “resist having tribunal time taken up with unnecessary and inevitably speculative evidence and argument about whether a deportation order will in fact be made at the end of the day, if all that needs to be shown is that there is a real prospect that a deportation order may eventually be made.”

(ii) Policy Guidance: Paragraph 55.4.4

The appeal was also dismissed on the second ground and the court held that the Home Office had been entitled to characterise the three appellants’ offending as participation in serious organised crime within the meaning of that expression in Paragraph 55.4.4.

The astute FTT had been entitled to find that the deprivation of citizenship in the case of each appellant would be compliant with the policy contained in paragraph 55.4.4.

Comment

Given the terrible crimes committed by these appellants it is very unlikely that anyone will have any sympathy with them. However, had the conduct of the appellants not been “serious organised crime” covered by the policy guidance, the government might just have lost in these proceedings. Therefore, the Home Office took no chances that way and instructed a leading silk and a junior against three self-representing appellants who had no access to legal aid. The justice gap was filled by slowing down the pace of proceedings to allow the appellants to understand what was going on. The court also had the benefit of examining their skeleton argument which had been drafted by their counsel in earlier proceedings.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Children, Citizenship and Nationality, Crime, Deportation, Deprivation of Citizenship, ECHR, Pakistan and tagged , , , , , . Bookmark the permalink.

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