Shabir Ahmed & Ors v Secretary of State for the Home Department

In a deprivation-of-citizenship appeal, the Secretary of State must have regard to the welfare of affected children under Borders, Citizenship and Immigration Act 2009, section 55. However, parents must normally make representations and provide evidence of the children’s best interests. In the absence of such material, a duty of further proactive enquiry will arise only exceptionally and contextually.

A section 40(5) notice is a first step towards deprivation. It does not itself remove or deport the person. The reasonably foreseeable consequences, including potential removal, remain relevant, but fresh safeguards and a further section 55 assessment apply at any later removal or deportation stage. EU law has no role where national citizenship lies exclusively within Member State competence. Policy cannot restrict the statutory test of whether deprivation is conducive to the public good.

The four appellants were Pakistani nationals who had obtained British citizenship by naturalisation. Following convictions for grave and organised sexual offences against children, the Secretary of State gave notices under section 40(2) and section 40(5) of the British Nationality Act 1981 indicating an intention to deprive them of British citizenship.

The First-tier Tribunal dismissed their appeals. Three appellants had children under 18, and the Secretary of State withdrew and replaced the original decisions to address section 55 of the Borders, Citizenship and Immigration Act 2009. The appellants appealed to the Upper Tribunal on grounds concerning children’s welfare, EU law, the deprivation policy, Article 8, and Part 5A of the Nationality, Immigration and Asylum Act 2002.

The central issue was whether the Secretary of State’s notices of intended deprivation, and the First-tier Tribunal’s treatment of them, disclosed a material error of law.

1. All appeals were dismissed. The First-tier Tribunal had not made a material error of law and its decisions were affirmed.

2. Section 55 applied to the three appellants with minor children. Its discharge depended on the factual and procedural context. Although the statutory duties rest on the Secretary of State, the relevant parent must normally place representations and evidence about a child’s best interests before the decision-maker. These appellants had ample opportunity to do so but supplied insufficient material. There was no evidential basis for a further proactive inquiry, and the substituted decisions contained an adequate best-interests assessment.

3. A section 40(5) notice under the British Nationality Act 1981 is a notice of intention to make a deprivation order. It neither effects loss of citizenship nor directly causes removal or deportation. The reasonably foreseeable later consequences remained relevant to section 55 and Article 8, but any later removal or deportation decision would require its own procedures, consideration of further evidence, and compliance with public-law and Convention obligations. The Tribunal approved the approach in Deliallisi [2013] UKUT 00439 (IAC) on foreseeable consequences.

4. EU law did not govern these cases. The Court of Appeal’s decision in G1 v Secretary of State for the Home Department [2012] EWCA Civ 867, which remained binding, established that national citizenship lies exclusively within Member State competence. The Supreme Court’s consideration in Pham v Secretary of State for the Home Department [2015] UKSC 19 did not alter that result.

5. The statutory touchstone in section 40(2) was whether deprivation was conducive to the public good. The Secretary of State’s policy was non-exhaustive guidance and could not supplement or restrict that statutory criterion. The decision-maker had a wide evaluative margin and could rationally treat the appellants’ conduct as falling within the policy’s reference to unacceptable behaviours.

6. Part 5A of the Nationality, Immigration and Asylum Act 2002 did not apply because a deprivation decision under the 1981 Act is not a decision made under the Immigration Acts. The First-tier Tribunal erred in considering Part 5A hypothetically by reference to possible deportation, but the error was immaterial and caused no prejudice to the appellants.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeals and affirmed the First-tier Tribunal’s decisions: [2017] UKUT 118 (IAC).
• First-tier Tribunal: dismissed the appellants’ appeals against the Secretary of State’s section 40 deprivation decisions. Its decisions were promulgated on 7 April 2016; no citation is stated.