The Special Immigration Appeals Commission (SIAC) has concluded that the guidance given by the Supreme Court in Begum v Special Immigration Appeals Commission & Anor [2021] UKSC 7 on how deprivation decisions should be made is not limited to cases involving national security, it also applies where a person has been involved in serious and organised crime. This was the decision reached in D5, D6 & D7 v Secretary of State for the Home Department [2023] UKSIAC 2.

The case concerned three nationals of Afghanistan who were said to be part of an organised criminal group engaged in trafficking for labour and sexual exploitation and money laundering. One of the appellants had been convicted of conspiring to assist unlawful immigration into the UK following an undercover operation by the National Crime Agency.

The Home Secretary decided to deprived two of the appellants of their British citizenship on the basis that this was conducive to the public good, having regard to their involvement in serious and organised crime. The third appellant was not a British citizen but was excluded from the UK for the same reason.

All three decisions came before SIAC because the Home Secretary relied on information which should not, on public interest grounds, be made public. SIAC issued an open judgment, which is publicly available, and a closed judgment, which isn’t.

SIAC’s role

The following was established by the Supreme Court in Begum v Special Immigration Appeals Commission & Anor [2021] UKSC 7 (our write up is here):

SIAC’s role on an appeal is to decide whether the Secretary of State acted in a way in which no reasonable decision-maker could have acted, or took account of an irrelevant matter, or failed to take account of a relevant matter, or erred in law. In other words, SIAC’s role is to carry out a public law review of the Secretary of State’s decision rather than to carry out a full merits-based appeal. [64]

This has since been followed by the Upper Tribunal in Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238 (IAC) (our write up of that one is here).

The appellants argued that Begum only applied to national security cases. Such cases involve an assessment of future risk to national security. The same is not true of decisions based on concerns that a person has been involved in serious and organised crime. This depends on past events rather than future risk. As such, the Home Secretary must prove, on the balance of probabilities, that the appellants were involved in serious organised crime in order to justify the decisions under challenge.  

SIAC rejected this argument. In both contexts the key issue is whether deprivation of citizenship (or exclusion from the UK) is conducive to the public good. This decision is entrusted to the Home Secretary, not SIAC. The legislation makes no distinction between decisions based on national security and decisions based on other public interest considerations. The limitations on the role of an appellate court is derived from the principles of democratic accountability and institutional capacity:

The principle of democratic accountability applies as much in the context of decisions made to address serious and organised crime as it does to decisions made in the interests of national security. Parliament has given the Secretary of State the relevant power to deprive a person of their citizenship, and she is accountable to Parliament, and ultimately the public, for the decisions she makes in the exercise of that power, whatever the underlying reasons for the decision. [67[7)]

In relation to institutional capacity:

The National Crime Agency exercises its functions on behalf of the Crown… Its staff have considerable experience and expertise in the assessment of intelligence relating to serious and organised crime, and identifying efficient and effective measures to combat serious and organised crime. [67(8)]

A National Crime Agency officer, with several years of experience, gave evidence to SIAC in both the open and closed proceedings. He was “a patently truthful and careful witness” (at [7]).

SIAC did not accept that national security cases were concerned with future risk whilst serious and organised crime cases were concerned with past events.

“In both cases, future risks are likely to be assessed in the light of information relating to past events. The nature of the risks is similar in both cases. The nature of the information is also similar in both cases, as is the process of the collection of the information and its assessment.” [67(9)]

As such, there was no justification for a different approach. The same approach applies, irrespective of the underlying reasons for the decision.

It is only permissible to review a decision on the merits – rather than on public law grounds – where human rights are engaged. In this case, all three of the appellants were outside the UK when the decisions were issued and only one had family in the UK. The appellant with family in the UK could apply for entry clearance. When deciding this application, the Entry Clearance Officer would be required to act compatibly with his human rights. This was the appropriate point for human rights to be considered.

Comment

This decision seems sensible. One can question why – if a decision can only be challenged on judicial review grounds – Parliament has provided for a right of appeal at all. The Upper Tribunal has grappled with this issue in the past with conflicting decisions issued on whether the decision can be reviewed on the merits. However, that conflict was resolved by the Supreme Court in Begum. It is difficult to see why that decision should be confined to the particular context of national security. In D5, D6 & D7 SIAC have confirmed it is not so confined. As such, appellants are stuck with the more restrictive approach which only allows deprivation decisions to be challenged on judicial review grounds rather than on the merits.