D5 & Ors v Secretary of State for the Home Department

Factual and Procedural Background

These linked appeals arise following decisions by the Secretary of State to deprive appellants of their British citizenship or to exclude them from the United Kingdom on grounds that their presence or citizenship was conducive to the public good, primarily due to involvement in serious organised crime (SOC). The appeals engage the approach that the Special Immigration Appeals Commission (SIAC) must take when reviewing such decisions, particularly whether the reasoning established in national security cases applies equally to SOC cases.

The appellants include three individuals collectively referred to as "Ds" and a fourth appellant, "Appellant C9". Ds were subject to deprivation or exclusion orders based on allegations of involvement in organised immigration crime and other serious offences. C9 was similarly deprived of citizenship on grounds related to SOC.

SIAC heard evidence in both sets of cases, including witness testimony and submissions from the National Crime Agency (NCA). SIAC dismissed the appeals, upholding the Secretary of State's decisions. The appellants challenged legal principles underpinning SIAC's approach, including the standard of proof and procedural fairness. The court also noted procedural delays caused by the need to handle CLOSED material securely and the death of a court member.

Legal Issues Presented

1. Whether the legal approach established in national security cases (notably in R (Begum) v Special Immigration Appeals Commission and U3 v Secretary of State for the Home Department) applies equally to deprivation or exclusion decisions based on involvement in serious organised crime.
2. Whether SIAC must make findings of fact on the balance of probabilities regarding involvement in SOC before upholding deprivation decisions.
3. Whether appellants have a right to make representations prior to deprivation decisions under section 40(2) of the British Nationality Act 1981 when the Secretary of State certifies reliance on sensitive CLOSED material.
4. The extent to which principles of proportionality and intensity of review apply in SOC cases compared to national security cases.
5. Whether the Secretary of State is obliged to consider alternative measures such as serious crime prevention orders before depriving citizenship.

Arguments of the Parties

Appellants' Arguments

• The approach to appeals in national security cases should not automatically apply to SOC cases, as the latter involve different legal categories and institutional competence.
• SIAC should apply a higher intensity of review in SOC cases, including requiring findings of fact on the balance of probabilities regarding involvement in serious organised crime.
• The Secretary of State should not have deprived citizenship without giving appellants an opportunity to make representations beforehand.
• The Secretary of State failed to consider less intrusive measures, such as serious crime prevention orders, before depriving citizenship.
• The burden of proof should rest on the Secretary of State to establish the core allegations on the balance of probabilities.

Secretary of State's Arguments

• The same legal principles and approach established in national security deprivation cases apply equally to SOC cases, as all decisions are made on the broad ground of conduciveness to the public good.
• SIAC's role is to review the Secretary of State's evaluative judgment on public law grounds, not to make factual findings on the balance of probabilities in relation to risk assessments.
• There is no statutory or common law right to make representations prior to deprivation decisions certified under section 40(5) of the British Nationality Act 1981.
• Deprivation decisions are justified as proportionate and necessary given the public interest in preventing serious organised crime.
• The Secretary of State is entitled to rely on expert assessments by the NCA, analogous to the Security Service in national security cases.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by situating the appeals within the legislative and judicial framework governing deprivation of citizenship and exclusion on grounds conducive to the public good. It noted that the phrase "conducive to the public good" encompasses various grounds, including national security and serious organised crime, without statutory distinction in the Secretary of State's discretion or SIAC's appellate role.

The court accepted SIAC's reasoning that the approach established in U3 for national security cases applies equally to cases involving SOC. This conclusion was based on statutory interpretation, principles of democratic accountability, institutional competence, and the similarity of the nature of expert risk assessments by the NCA and the Security Service.

It rejected the appellants' arguments that different legal principles or a higher intensity of review should apply in SOC cases, emphasizing that the statutory scheme confers a wide discretion on the Secretary of State and that SIAC's role is to conduct a public law review rather than to re-decide facts on the balance of probabilities. The court also held that findings of fact on the balance of probabilities regarding involvement in SOC were not a prerequisite to upholding deprivation decisions.

Regarding procedural fairness, the court endorsed SIAC's view that there is no right to make representations before deprivation decisions certified under section 40(5), as procedural fairness is secured post-decision by the right of appeal to SIAC. It found no material distinction between national security and SOC cases in this respect.

The court dismissed arguments that less intrusive measures, such as serious crime prevention orders, should have been considered, noting that the Secretary of State's decision was rational and proportionate given the public interest and operational considerations.

Finally, the court found no error in SIAC's dismissal of the appeals, including in relation to the burden of proof and the sufficiency of the evidence supporting the Secretary of State's decisions.

Holding and Implications

The court DISMISSED all four appeals.

The holding establishes that the legal approach articulated in national security deprivation cases applies equally to cases involving serious organised crime when the Secretary of State deprives individuals of citizenship or excludes them from the UK on grounds conducive to the public good. SIAC's role remains a public law review with due deference to the Secretary of State's evaluative judgment, without a requirement for findings of fact on the balance of probabilities concerning involvement in SOC. Procedural fairness is ensured through statutory rights of appeal rather than pre-deprivation representations.

This decision confirms the coherence of the statutory scheme governing deprivation decisions and reinforces the broad discretion entrusted to the Secretary of State. It does not establish new precedent beyond applying existing principles to SOC cases but clarifies that distinctions based solely on the nature of the public good ground are not legally sustainable.