A Single Standard for “Conducive to the Public Good” Deprivation Appeals: The Court of Appeal in D5 & Ors v SSHD ([2025] EWCA Civ 957) Broadens the U3 Principle to Serious Organised Crime Cases

1. Introduction

These linked appeals (D5, D6, D7, and C9) presented the Court of Appeal with a novel question: does the analytical framework imposed by the Supreme Court in U3 v SSHD—originally devised for national-security deprivation orders—also govern appeals where the Secretary of State relies on serious organised crime (“SOC”) as the justification for depriving British citizens of their nationality or excluding them from the United Kingdom? Elisabeth Laing LJ, (Green LJ concurring) answered with a resounding “yes”.

In doing so, the Court has effectively unified the legal standard applicable to all deprivation decisions taken “because it is conducive to the public good” under s.40(2) of the British Nationality Act 1981 (“BNA”), regardless of the particular strand of the public good (national security, SOC, foreign relations, or other public-interest grounds) on which the Home Secretary relies.

2. Summary of the Judgment

• Core Holding — Special Immigration Appeals Commission (“SIAC”) must adopt exactly the same public-law, reasonableness-based review when considering appeals against citizenship-deprivation decisions grounded on SOC as it does in national-security cases (U3 and Begum). There is no textual or purposive basis in the BNA for treating different facets of “the public good” differently.
• Result — SIAC had therefore applied the correct test in each appeal; its dismissal of the challenges was lawful; all four Court of Appeal appeals were dismissed.
• Procedural Fairness — The appellants had no right to advance representations before the deprivation/exclusion decisions were taken. Fairness is secured by the statutory right of appeal to SIAC.
• Evidential Standard — Neither the Secretary of State nor SIAC is required to resolve disputed historical facts on the balance of probabilities in deciding whether deprivation is conducive to the public good. The task is an evaluative judgment about risk and public interest, reviewed on administrative-law principles.

3. Analysis

3.1 Precedents Cited and Their Influence

The judgment is anchored in a line of authorities defining SIAC’s role:

• Secretary of State v Rehman [2003] 1 AC 153 – first endorsed heightened deference to executive national-security assessments.
• R (Begum) v SIAC [2021] AC 765 – confirmed that SIAC’s task is to review, not remake, the Home Secretary’s evaluative national-security judgment.
• U3 v SSHD [2025] UKSC 19 – crystallised the principle that where the issue is an assessment of risk to national security, SIAC performs an administrative-law review, giving “very considerable weight” to the Secretary of State’s specialist assessment.
• Other references – Huang, A v SSH, Pham, N3, and SIAC cases (B4, U2, etc.) informed ancillary points (statelessness, procedure, proportionality).

Elisabeth Laing LJ held that none of these cases limited their reasoning to national-security per se; rather, they articulated general principles applicable whenever Parliament entrusts an evaluative “conducive to the public good” decision to the Secretary of State and channels any appeal through SIAC.

3.2 Legal Reasoning of the Court

a) Statutory Construction

Sections 40(2) and 40A(2) BNA confer a broad power on the Home Secretary to deprive citizenship where “satisfied that deprivation is conducive to the public good”, with SIAC appellate oversight where sensitive material is involved. Unlike the Immigration Act 1971, the BNA draws no sharp line among the various public-interest heads; Parliament deliberately used an allencompassing phrase and provided a single appellate structure.

b) Institutional-Competence and Deference

• The Secretary of State is politically accountable for immigration and related public-safety concerns, and for setting the National Crime Agency (“NCA”) strategic priorities.
• The NCA, like the Security Service in national-security matters, is the Government’s specialist assessment body for SOC intelligence.
• Courts lack the expertise (and democratically legitimate mandate) to second-guess risk assessments based on fragmentary intelligence.

c) Nature of the Decision Under Review

Whether an individual’s continued citizenship presents an unacceptable risk to the public good (because of SOC or national security) is an “evaluative judgment” rather than a binary factual finding. The material may be inconclusive or partially corroborated; what matters is whether there is a rational, evidence-supported basis, not proof of each allegation “on the balance of probabilities”.

d) Rejection of Proposed Distinctions

• SOC v. National Security – The Court found no statutory, logical, or practical basis for treating SOC differently; both involve risk to public safety, reliance on classified intelligence, and executive policy imperatives.
• Past Fact v. Future Risk – In practice the two are intertwined; assessments almost always rely on past conduct to predict future threat.

e) Procedural Fairness

Consistent with U3, the Court held that the statutory appeal to SIAC after the decision adequately safeguards fairness; there is no pre-decision right to make representations where the Secretary of State’s certificate engages s.40A(2). Alerting the subject in advance would frustrate the operational objective (e.g., ensuring the person remains outside the UK).

3.3 Likely Impact of the Decision

Short-Term Effects

• SIAC will henceforth apply a uniform administrative-law/reasonableness review in all deprivation appeals involving undisclosed evidence, regardless of whether the Home Secretary’s concerns are terrorism, espionage, organised crime, or other public-interest harms.
• Home Office policy teams can rely on the NCA’s closed intelligence in exactly the same way they rely on Security Service assessments.
• Litigants will find it harder to argue that criminal prosecution, civil orders (SCPOs, TPIMs, etc.) or less intrusive disruption measures must always be considered before resorting to deprivation.

Medium to Long Term

• Increased use of deprivation/exclusion powers against SOC facilitators, especially in people-smuggling and ‘county-lines’ drug trafficking contexts.
• Potential for future litigation to focus on public-law errors (misunderstood evidence, irrationality) rather than burden-of-proof arguments.
• Alignment with forthcoming National Crime Agency strategies: citizenship deprivation may become a standard “tool in the disruption toolbox” alongside asset-freezing, unexplained-wealth orders, and extradition.

4. Complex Concepts Simplified

Conducive to the Public Good

A broad statutory phrase empowering the Home Secretary to act when maintaining a person’s citizenship (or presence) would harm society’s interests. It is not limited to terrorism; it covers any sufficiently serious detriment, such as organised immigration crime.

Section 40(2) vs. 40(3) BNA

s.40(2) – discretionary, risk-based deprivation for the public good.
s.40(3) – mandatory deprivation where citizenship was obtained by fraud. Only s.40(3) expressly requires proved facts.

SIAC’s “Closed” and “Open” Material

Evidence deemed too sensitive to disclose is received in a closed session with “special advocates” representing the appellant’s interests. An open judgment summarises the gist. The appellate court may read the closed record to verify that no unfairness occurs.

Public-Law / Administrative-Law Review

The court checks that the decision is lawful, rational, and procedurally fair. It does not substitute its own view unless the Secretary of State’s decision is outside the range of reasonable responses.

Serious Crime Prevention Order (SCPO)

A civil order imposing restrictions (e.g., on finances, travel, contacts) on individuals involved in serious crime. The Court held that SCPOs are generally less effective than deprivation for keeping high-level SOC actors out of the UK and are not a mandatory alternative the Secretary of State must consider.

5. Conclusion

D5 & Ors v SSHD ushers in a pivotal clarification of UK citizenship-law: whenever the Home Secretary invokes s.40(2) BNA and relies on classified intelligence, SIAC’s appellate scrutiny is uniform—it reviews for administrative-law error, giving substantial deference to the executive assessment, regardless of whether the underlying threat is terrorism or serious organised crime.

By collapsing the distinction the appellants sought to draw, the Court reinforced Parliament’s intention that “conducive to the public good” is a single, multi-faceted concept entrusted to the executive, subject to a robust, but not merits-based, SIAC review. Practitioners should expect future appeals to turn less on proof of individual allegations and more on demonstrating irrationality or material error in the Home Secretary’s holistic evaluation.

The precedent now stands: one power, one appellate test, many potential applications.