These appeals represent the fourth instance where the Court of Appeal (CoA) has had to grapple with the implications of the Supreme Court's landmark judgement in R (Begum) v Special Immigration Appeals Commission (SIAC) [2021] UKSC 7.
Facts:
These appeals arose following decisions by the Secretary of State to deprive appellants of their British citizenship or to exclude them from the UK on the ground that their presence was not conducive to the public good due to their involvement in serious organised crime (SOC).
The appellants, referred to as Ds, are all Afghans who came to the UK between 2001 and 2007. D6 and D7 are brothers, and D5 is their paternal uncle. Each claimed asylum, and D5 and D6 were later naturalised as British citizens. On 3 September 2020, when D7 was outside the UK, the Secretary of State decided to exclude D7 from the UK on the grounds that it would be conducive to the public good. On 30 November 2020, when D5 and D6 were outside the UK, the Secretary of State decided to deprive them of their nationality. D7 applied to SIAC for a review of Decision 1 under Section 2C(2) of the British Nationality Act (BNA) 1981.
During the SIAC proceedings, extensive oral evidence was heard from D5, D6, D5's wife, and six other relatives. SIAC concluded that D5, D6, and most of their family witnesses were untruthful and unreliable on material issues, thereby affecting their overall credibility. D5 was found to have orchestrated untruthful accounts for asylum claim purposes and involved his nephews in his business.
D7 was initially encountered by the Home Office on 13 February 2007, although evidence later demonstrated he had been there since 2001. He claimed to have entered the UK via clandestine means three days earlier. He claimed that he was at risk from the Taliban in Afghanistan. He was given discretionary leave to remain on 12 October 2011 and indefinite leave to remain in July 2018. He applied in November 2019 for entry clearance for his wife and children, which was unsuccessful due to his wife’s insufficient English.
In July 2018, police searches at the homes of D5 and D6 and their associated shops resulted in multiple arrests for immigration offences and drug possession, along with the seizure of substantial cash and mobile phones. An undercover police operation between February and November 2020 recorded
D6, with D5 present, discussing plans to smuggle people from Europe into the UK via lorries for £2,500 per person, acknowledging he was making "good money" from this activity.
Following these events, D5 and D6 departed for Kabul in November 2020, later returning to the UK by clandestine means. They were subsequently prosecuted for immigration offences stemming from the undercover operation. D6 was convicted of conspiracy to assist unlawful immigration, receiving an eight-year prison sentence, plus a consecutive two years for assisting D5's unlawful entry. D5 was sentenced to five years' imprisonment.
C9 was born in Albania and unlawfully entered the UK in December 1999, using assumed names and falsely claiming to be Kosovan when seeking asylum. Despite an initial refusal, he successfully appealed and was granted indefinite leave to remain in February 2002, subsequently becoming a naturalised British citizen in 2007. His true identity was later revealed in 2018 when his mother applied for a family visa. On 23 September 2020, while C9 was known to be outside the UK, the Secretary of State issued a notice of intent to deprive him of his British citizenship. C9 was assessed as being involved in arranging and facilitating organised immigration crime from mainland Europe to the UK using HGVs and small boats, personally controlling planned crossings. He was also implicated in money laundering, dealing, and brokering illegal drugs, potentially having access to firearms.
Decision:
The CoA dismissed the appeal of the appellants. However, the core conclusion of the judgement is that SIAC must adopt the same approach for all appeals against deprivation decisions based on "public good" grounds, regardless of whether the underlying reason is national security or, as in these cases, SOC. There is no statutory basis for differentiating between these facets of the public good when determining SIAC's appellate role. Consequently, SIAC's original dismissal of the appellants' appeals was deemed correct. Lady Justice Laing found "no basis in the statutory language for distinguishing between the different facets of the public good on which the Secretary of State may rely". The nature of the assessment (evaluating a risk to public good, whether from terrorism or SOC) is similar, and the institutional reasons for deference to the Secretary of State's judgement equally apply.
While Section 40(2) BNA gives the Secretary of State a wide discretion to deprive citizenship if "conducive to the public good" without explicitly defining its scope, it must be read with Section 40A(2). This latter section implicitly expands the "public interest" beyond national security and international relations to include a broader category. The Court found no warrant in the BNA's language to apply different principles to SIAC's review of deprivation decisions based on the specific "facet" of the public good, i.e., national security vs. SOC.
Implications:
The most critical implication of this case is that the CoA has firmly established that the SIAC must apply the same legal approach to all appeals against deprivation of citizenship decisions made on "conducive to the public good" grounds, regardless of whether the underlying reason is national security or SOC. This means the framework established in Begum and U3 for national security cases now explicitly extends to SOC cases.
For SOC cases, like national security cases, the Secretary of State's assessment is treated as an "evaluative judgement" or "assessment of risk" rather than a strict factual finding that must be proven on the balance of probabilities.
