Aziz & Ors v Secretary of State for the Home Department

On an appeal against deprivation of British citizenship, the tribunal must assess the consequences of deprivation only so far as necessary to decide whether the deprivation order itself is lawful and compatible with Convention rights and the statutory duty concerning children. It should not ordinarily conduct a speculative, advance assessment of a possible future deportation appeal.

Where deprivation is intended to enable later deportation, it will usually suffice that deportation has a real prospect of occurring. Any eventual deportation decision will be determined separately on current evidence.

The Secretary of State and the tribunal must apply published policy governing the deprivation discretion unless they identify a departure and give rational, defensible reasons for it.

The three appellants were naturalised British citizens who also held Pakistani citizenship. Following their convictions for grave offences involving the organised sexual exploitation of children, the Secretary of State decided under section 40(2) of the British Nationality Act 1981 to deprive them of British citizenship. Possible deportation proceedings were to follow separately.

The First-tier Tribunal dismissed their appeals after considering both the immediate effects of deprivation and, following Delialissi, whether eventual deportation would comply with article 8 of the Convention and section 55 of the Borders, Citizenship and Immigration Act 2009. The Upper Tribunal dismissed further appeals in [2017] UKUT 118 (IAC).

The Court of Appeal considered whether the tribunals had adopted the correct approach to possible future deportation and whether the deprivation decisions complied with paragraph 55.4.4 of the Home Office Nationality Instructions.

1. The appeals were dismissed unanimously. The First-tier Tribunal had lawfully found that deprivation itself would have minimal impact on the appellants’ family lives and their children’s interests. Given the gravity of the offending, the Secretary of State was entitled to conclude that deprivation was conducive to the public good. Deprivation itself breached neither article 8 nor the duty under section 55 of the Borders, Citizenship and Immigration Act 2009.

2. The guidance in Delialissi and AB was liable to mislead tribunals if understood as requiring a predictive determination of the merits of a future deportation appeal. Foreseeable consequences need examination only so far as necessary to determine whether deprivation itself is lawful. A later deportation decision will involve separate representations, current evidence and an independent right of appeal.

3. The First-tier Tribunal therefore went further than necessary when it assessed whether each appellant would ultimately be deported consistently with article 8 and section 55. That additional analysis caused no error of law. It had been undertaken carefully and its conclusion was open to the tribunal.

4. Where the Secretary of State relies on deprivation as a necessary step towards possible deportation, a full advance determination will also usually be inappropriate. It will ordinarily suffice that deprivation creates a real prospect of a later deportation order. An individual may seek to show that no such prospect exists, but the tribunal should avoid an elaborate and speculative hearing except where genuinely necessary.

5. Published policy governing the section 40(2) discretion has legal significance. The Secretary of State and the tribunal must apply it, or openly depart from it for rational and defensible reasons. The Upper Tribunal could not uphold the decisions merely because deprivation was reasonably open on general public-good grounds, nor by relying on “unacceptable behaviours” when the original decision-makers had made no assessment under that category.

6. The decisions nevertheless complied with paragraph 55.4.4 of the Nationality Instructions. The Secretary of State and the First-tier Tribunal were entitled to characterise the grave, collaborative and organised offending as participation in serious organised crime.

1. Court of Appeal (Civil Division): The appeals were dismissed unanimously in [2018] EWCA Civ 1884. The court upheld the deprivation decisions while correcting the approach to speculative assessment of future deportation.
2. Upper Tribunal (Immigration and Asylum Chamber): The appellants’ appeals were dismissed in [2017] UKUT 118 (IAC). The tribunal held that the First-tier Tribunal had followed Delialissi and that the offending could lawfully be characterised as serious organised crime.
3. First-tier Tribunal: Each appeal against the proposed deprivation of citizenship was dismissed. The tribunal found that deprivation itself would not significantly affect family life or the interests of the appellants’ children, and also assessed the legality of possible future deportation.