Anonymized Summary of Court of Appeal (Civil Division) Judgment
Factual and Procedural Background
This is an appeal by the Appellant (Home Secretary at the material time) against a decision of the Upper Tribunal (Immigration and Asylum Chamber) which had allowed an appeal by the Respondent and quashed a deprivation-of-citizenship order made on 22 January 2021. The Upper Tribunal's reasoned decision was promulgated on 13 November 2023. The Court of Appeal judgment considered the Appellant's appeal from that Upper Tribunal decision.
The Respondent was naturalised as a British citizen on 5 February 2009 and is, or was, a dual national. The Respondent pleaded guilty on 27 February 2018 in the Crown Court to conspiracy to remove the proceeds of criminal conduct from England and Wales. The sentencing judge imposed a sentence of six years' imprisonment after a discount for the guilty plea; the sentencing judge described the Respondent as an organiser in a criminal operation involving multiple journeys and substantial sums (the judge's findings included that the Respondent had used a UK passport and had travelled to the Respondent's country of origin in the context of the offending). The criminal activity referred to in the materials was described as involving the removal and transport of a large quantity of cash to another country and an estimate of approximately £8m was recorded in the briefing material placed before the decision-maker.
A ministerial submission dated 13 May 2020 (prepared by an official) recommended that the deprivation power under section 40(2) of the British Nationality Act 1981 be used against persons guilty of serious organised crime, but limited to the most serious and high-profile cases. Further briefing and a submission dated 17 December 2020 containing annexes were placed before the Appellant recommending that the Respondent be deprived of citizenship. Annexes included (as described in the materials): a letter from Agency A dated 19 October 2020 recommending deprivation (Annex A); an Annex assessing statelessness (Annex B); an Annex considering Convention rights including Article 8 (Annex C); an Annex considering child welfare under the statutory duty in section 55 of the Borders, Citizenship and Immigration Act 2009 (Annex D); and a draft notice which became the formal Notice served on the Respondent (Annex E).
On 22 January 2021, the Notice required by section 40(5) was served on the Respondent in prison approximately half an hour before the formal Deprivation Order made under section 40(2) was served. The covering letter described the Respondent's status as "under review", though the material shows the decision had been made and the Deprivation Order was issued immediately after service of the Notice. Prior to the service of the Notice and Order, the Respondent had no opportunity to make representations to the Appellant. The annexed briefing materials were not provided to the Respondent at that time and were disclosed in stages in 2022 in advance of the First-tier Tribunal hearing.
The Respondent appealed the Deprivation Order to the First-tier Tribunal (Immigration and Asylum Chamber). The First-tier Tribunal dismissed that appeal by a reasoned decision promulgated on 5 May 2022. On further appeal the Upper Tribunal allowed the Respondent's appeal and quashed the Deprivation Order. The Appellant appealed the Upper Tribunal's decision to the Court of Appeal.
Legal Issues Presented
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Whether the Upper Tribunal erred in law in finding that the Appellant, when making the decision to deprive the Respondent of British citizenship, was unaware that she had a discretion to exercise and accordingly failed to take into account any of the matters relevant to the exercise of that discretion.
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On the Respondent's Respondent's Notice, whether the Deprivation Order should be upheld on the basis that it was procedurally unfair because the Respondent had no opportunity to make representations before the decision was made.
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On the Respondent's Respondent's Notice, whether the Deprivation Order was unlawful because it was made by the application of a policy that had not been published and was not available to the Respondent until disclosure in March 2022 (the policy being the 13 May 2020 ministerial submission and related material).
Arguments of the Parties
Appellant's Arguments (as recorded)
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The Appellant's principal ground (granted permission by the court below) was that the Upper Tribunal had erred in finding that the Appellant was unaware that she had a discretion to exercise when making the deprivation decision. The Appellant contended that the decision letter (the Notice) complied with the statutory duty under section 40(5)(b) because it set out the reasons for the decision and that there was no requirement for a detailed, step-by-step account of internal deliberation.
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It was submitted that the Notice should be read as a whole and in context, including the annexed briefing materials that were before the Appellant, and that those materials demonstrate awareness of the discretionary elements of the decision.
Respondent's Arguments (as recorded)
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The Respondent sought to uphold the Upper Tribunal's decision on two grounds. First, the Respondent argued that denial of any opportunity to make representations before the decision was procedurally unfair and unlawful.
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Second, the Respondent argued that the Deprivation Order had been made pursuant to an unpublished policy (the 13 May 2020 submission) which was not communicated to him until shortly before the First-tier Tribunal hearing, such that he had been unable to respond to or challenge the application of that policy.
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The Respondent's counsel also argued before the Court of Appeal that the Upper Tribunal was correct to conclude both that there had been a failure to exercise the discretion and that the reasons given were inadequate. The Respondent maintained that the distinction between the condition precedent ("conducive to the public good") and the exercise of discretion was not a strict separation in practice, and that the appellant's failure to address the discretionary stage rendered the decision legally defective.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Precedent A (previous authority cited on similar deprivation grounds) |
Demonstrates prior use of deprivation power in relation to serious and/or organised crime. |
The materials note that the Secretary of State had previously given notice relying on serious and/or organised crime in a prior case; this supports the observation that the May 2020 submission sought to extend the use of policy for serious organised crime. |
| Precedent B (Supreme Court decision on scope of appeal) |
Restricts the scope of an appeal against a section 40(2) deprivation decision in the First-tier Tribunal to review on public law grounds (i.e. limits the ability to introduce new merits-based material on appeal). |
The court relied on this to explain why the lack of an opportunity to make representations to the decision-maker left a gap that the statutory appeal could not fill, because the FTT's remit is limited following that decision. |
| Precedent C (Court of Appeal decision describing earlier practice) |
Describes a practice in which the section 40(5) notice was served containing the decision, followed by a delay before the deprivation order was made, allowing opportunity for representations and appeal before the order was finalised. |
The judgment contrasted that earlier practice with the "new practice" whereby the notice and order were served minutes apart to prevent renunciation and thereby avoid rendering the person stateless. |
| Precedent D (Court of Appeal authority on procedural fairness) |
Explains that, unless impracticable in the particular case, permitting representations only after a decision has been taken will usually be insufficient to satisfy common law procedural fairness; decision-makers' minds should not be "unduly fixed" before representations are received. |
The court applied this principle to conclude that the usual rule requires pre-decision representations unless impracticable, and that the Appellant's justification for departing from that rule required close examination. |
| Precedent E (Court of Appeal on relevance of future risk) |
Holds that a risk of future harm need not be established as a condition precedent for exercise of deprivation power, but risk assessments may be relevant to the discretionary stage. |
The court cited this to explain that although risk need not be proven before deciding "conducive to the public good", evidence about risk may nevertheless be a relevant discretionary consideration that the decision-maker should address. |
| Precedent F (House of Lords / Supreme Court authority on representations) |
Sets out that, before statutory powers are exercised, persons foreseeably and significantly affected should be given an opportunity to make representations unless statute provides otherwise or the circumstances make it impossible/impractical/pointless (with such arguments to be closely examined). |
The court quoted this authority directly and applied it to reject the Appellant's argument that it would have been impossible or impractical to give the Respondent an opportunity to make representations without risking renunciation. |
| Precedent G (earlier authority on consultation rights) |
Emphasises the value of consultation at the formative stage to avoid the decision-maker's mind becoming unduly fixed. |
The court referenced this principle when considering the value of pre-decision representations and the risk that a post-decision process would be insufficient to influence the outcome. |
| Precedent H (Upper Tribunal decision addressing failure to afford opportunity to comment) |
Holds that failure to afford an opportunity to comment on a proposed deprivation decision may be an error of law. |
The UT and the Court of Appeal treated this decision as relevant authority supporting the view that procedural fairness had been breached where no opportunity to make representations was given. |
| Precedent I (series of related deprivation decisions) |
Referenced as examples of similar form decisions taken in other cases; their treatment was noted but not determinative in the present case. |
The court observed that those cases did not advance the Appellant's position on the question of the exercise of discretion in this case and noted uncertainty about why certain points were not taken in those cases. |
| Precedent J (earlier authority on consultation and the decision-maker's mind) |
Illustrates the rationale for consultation before the decision-maker's mind becomes unduly fixed. |
The court invoked the passage to support the general rule favouring pre-decision consultation as part of common law procedural fairness. |
Court's Reasoning and Analysis
The court's reasoning, delivered principally by Judge Edis (with Judges Dingemans and Underhill agreeing), proceeded in two related strands: (A) whether the procedure adopted in this case was procedurally fair given that the Respondent had no opportunity to make representations before the deprivation decision was taken, and (B) whether the Upper Tribunal was correct to hold that the Appellant had not appreciated or exercised the discretion inherent in section 40(2).
A. Procedural fairness:
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The court began from established authorities that, before the exercise of statutory powers which will significantly and foreseeably affect a person, that person should generally be given an opportunity to make representations unless the statute provides otherwise or the circumstances make it impossible, impracticable or pointless to do so. The court emphasised that any argument that representations would be impracticable for reasons such as risk of renunciation must be closely examined.
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The court accepted that, in section 40(2) cases, it may be legitimate in principle to withhold notice of a decision until the decision is made (to prevent the risk that the person might renounce another nationality and thereby frustrate deprivation by creating statelessness). However, the court held that this justification did not automatically displace the usual requirement for pre-decision representations where the decision-maker has not adopted a compensating fair procedure.
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The court concluded that, where the appeal route to the First-tier Tribunal is limited to public law review (and will not permit consideration of new merits material), the Appellant should, if she proceeds to make a decision without prior representations because of renunciation risk, offer at the time of notification a clear willingness to review the decision on its merits in light of any representations or evidence the person might supply. Such an offer, the court said, would avoid tipping the person off while still providing a route for the decision-maker to consider merits material post-notice.
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Here, the Notice served on the Respondent contained no statement that the Appellant would review the decision on its merits in the light of representations. Further, the decision-making documents indicated an expectation that the Respondent would be given the opportunity to provide further information, but that expectation did not materialise. For those reasons, the court found the process implemented in this case to be procedurally unfair.
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Accordingly, the Deprivation Order was quashed on the ground of procedural unfairness.
B. Discretion decision (the Appellant's ground):
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The Upper Tribunal had concluded that the Appellant did not appreciate that she was exercising a discretion and had failed to exercise it; the consequence was legal error. The Court of Appeal considered whether that conclusion was correct.
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The Court of Appeal acknowledged that the Notice was not well drafted and that it would have been preferable for the exercise of discretion (and reasons for that exercise) to have been explicitly set out. Nevertheless, Judge Edis concluded that the materials placed before the Appellant (including the annexes which addressed Convention rights and section 55 duties) and the fact that the Notice addressed the welfare of the Respondent's children demonstrated that the Appellant was aware of and did take into account discretionary considerations. In short, there was evidence that the Appellant knew she had a discretion and that relevant matters were drawn to her attention.
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For that reason, Judge Edis considered that the Upper Tribunal had been wrong to say there was no evidence that the Appellant knew of or exercised a discretion. If the issue of failure to exercise discretion were determinative, he would have allowed the appeal on that ground. However, because the court concluded that procedural unfairness required quashing in any event, that outcome was dispositive of the appeal.
Both Judges Dingemans and Underhill agreed with the reasoning and outcome expressed by Judge Edis. Judge Underhill emphasised the principle that it is a matter of basic fairness for a person whom the Appellant proposes to deprive of British citizenship to have an opportunity to put forward reasons in opposition, particularly where the statutory appeal route is limited in scope.
Holding and Implications
Holding:
DISPOSED OF: The Appellant's appeal is unsuccessful. The Deprivation Order made on 22 January 2021 was quashed on the ground of procedural unfairness because the Respondent had no opportunity to make representations before the decision was taken and the Notice did not offer a fair post-decision review mechanism in the circumstances described.
Implications and direct consequences:
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The immediate practical consequence is that the Deprivation Order is quashed. The Appellant will be required to reconsider the matter and, if a further deprivation decision is to be made, to do so by a procedure that complies with the requirements of procedural fairness identified in the judgment.
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The Court of Appeal indicated that a lawful procedure in section 40(2) cases may, in appropriate circumstances, permit notification only after the decision is made (to avoid renunciation) but that in such a case the decision-maker should make clear a willingness to review the decision on the merits in light of any representations the affected person may provide. The court expressed concern that the "new practice" being followed by the Appellant had not been reduced to writing and had not been thought through for fairness.
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The Court did not decide the merits of whether the Respondent should be deprived of citizenship; it focused on the legal and procedural defects. The court also held that, while the Upper Tribunal was not correct to say there was no evidence that the Appellant knew she had a discretion, the procedural unfairness ground alone required quashing.
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The judgment emphasises that any argument that procedural fairness should be displaced because of a risk of renunciation will be closely examined; it is not a blanket justification for denying any opportunity to make representations or for failing to create a compensating review mechanism.
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The court's conclusions do not themselves create a novel rule of law beyond application of established procedural fairness principles, but they do underscore the need for the Appellant's decision-making practice in deprivation cases to be transparent, fair, and documented.
Note: This summary has been prepared exclusively from the text of the provided opinion and has been fully anonymized in accordance with the instructions supplied. Where the opinion did not present extended material on some points (for example, there was no detailed discussion of certain procedural alternatives), the summary has confined itself to the matters expressly addressed in the opinion.