Secretary of State for the Home Department v Kolicaj

Factual and Procedural Background

The opinion concerns the regime for deprivation of British citizenship on the ground that it is conducive to the public good under section 40 of the British Nationality Act 1981. That regime involves: (i) a deprivation decision by the Secretary of State; (ii) notice of that decision; (iii) the making of a deprivation order; and (iv) a right of appeal to the First-tier Tribunal (“FTT”) under section 40A, or to the Special Immigration Appeals Commission (“SIAC”) under section 2B of the Special Immigration Appeals Commission Act 1997 where a national security certificate is issued.

The Respondent was born an Albanian national. He entered the United Kingdom on a fiancé visa in 2005, obtained leave to remain as a spouse, indefinite leave to remain in 2007, and became a naturalised British citizen in 2009. After the breakdown of his first marriage to a British citizen, he married an Albanian national in 2013; they have four children.

In February 2018 the Respondent pleaded guilty to conspiracy to remove the proceeds of criminal conduct from England, contrary to section 327 of the Proceeds of Crime Act 2002. The conspiracy, involving the Respondent and his brother, concerned sophisticated money-laundering of about £8 million in criminal cash transported from the UK to Albania via multiple commercial flights and couriers. Large sums were seized on three occasions. The sentencing judge placed the Respondent in the highest culpability bracket for money laundering and in harm category 2, with a starting point of eight and a half years’ imprisonment, reduced to six years after plea and mitigation.

The Secretary of State’s basic deprivation policy is contained in chapter 55 of the Home Office Nationality Instructions. Paragraph 55.4.4 states that “conduciveness to the public good” includes deprivation on grounds of involvement in terrorism, espionage, serious organised crime, war crimes or “unacceptable behaviours”. A ministerial submission of May 2020 recommended using section 40(2) against those guilty of serious organised crime but limiting use to the most serious and high-profile cases, focusing on “highest harm offences” such as organised crime involving violent, sexual and other high-harm conduct. The Secretary of State accepted that recommendation.

In October 2020 the National Crime Agency recommended that the Secretary of State consider using section 40(2) to deprive the Respondent of British citizenship and then deport him, assessing that he posed an ongoing risk on release. This was adopted in a December 2020 ministerial submission, which annexed the National Crime Agency’s assessment, a statelessness assessment (concluding the Respondent remained Albanian), a Human Rights Act 1998 and article 8 assessment, a section 55 children’s welfare assessment, and a draft notice of intention to deprive under section 40(5). The December 2020 submission explicitly applied the May 2020 “highest harm” approach and assessed the Respondent as meeting that threshold.

The Secretary of State accepted the December 2020 recommendation and issued a notice of intention to make a deprivation order (“the Notice”), stating that deprivation was conducive to the public good and characterising the Respondent’s offending as serious organised crime under paragraph 55.4.4. The Notice referred to the section 55 assessment and concluded that the public interest in deprivation clearly outweighed any interests of the Respondent’s children in his remaining a British citizen. It did not refer to the May 2020 submission.

On 22 January 2021 the Notice was served on the Respondent in prison, followed about 30 minutes later by the deprivation order (“the Order”). The short interval was a deliberate practice aimed at preventing recipients from renouncing their foreign citizenship before service of the order, which would render them stateless and preclude deprivation under section 40(4). The Respondent appealed to the FTT under section 40A. While that appeal was pending, he was served with staged decisions to make a deportation order and subsequently applied to revoke the deportation order and sought asylum; those proceedings remain outstanding.

During the FTT appeal the Secretary of State disclosed the December 2020 submission and, following a request, also disclosed the May 2020 submission. The Respondent lodged evidence on his private and family life and an initial probation risk assessment of March 2021 assessing his risk of reoffending as low. However, at the hearing in April 2022 his representative chose to proceed on submissions alone, without calling the Respondent or other evidence; the FTT was not invited to make findings of fact because no facts were disputed.

The parties in the FTT, and subsequently in the Upper Tribunal and the Court of Appeal, proceeded on a common but mistaken assumption that an appeal under section 40A is confined to public law review of the Secretary of State’s decision as at the date it was made, on the basis of the material then available. This approach was influenced by Upper Tribunal guidance and by a misunderstanding of Supreme Court authority. It led the FTT to treat the March 2021 risk assessment as inadmissible because it post-dated the decision.

The FTT dismissed the Respondent’s human rights challenge under article 8 and rejected public law arguments that: the Secretary of State had failed to investigate his propensity to reoffend (including under a Tameside-type duty of inquiry); the process was procedurally unfair for not allowing pre-decision representations; and the Secretary of State had misapplied or failed to follow her policy in the May 2020 submission. The FTT held that the National Crime Agency assessment addressed future risk, that there was no duty to seek other agencies’ views, that section 40(5) prescribed the relevant procedure and did not require pre-decision representations, and that the Respondent’s offending rationally met the seriousness threshold in the May 2020 submission.

The Respondent appealed to the Upper Tribunal, represented by new counsel. The parties and tribunal again assumed the appeal was confined to circumstances at the decision date. The Respondent argued, among other points, that: (i) the Secretary of State had not properly exercised her discretion distinct from the antecedent finding that deprivation was conducive to the public good; and (ii) the May 2020 submission was an undisclosed policy, rendering the decision unlawful under Lumba. The Secretary of State contended that the May 2020 document was not a separate policy and that adequate reasons were set out in the Notice.

The Upper Tribunal accepted that the May 2020 submission did not constitute a separate policy, but an explanation of the existing published policy in paragraph 55.4.4, and held that the Secretary of State was entitled to conclude the Respondent’s offending fell within that policy. It agreed that, following Pham (No 2), a finding that deprivation was conducive to the public good could be lawfully based on very serious offending alone, without a forward-looking risk assessment. On procedural unfairness, relying on a statement of principle in Bank Mellat as cited in Balajigari, the Upper Tribunal held that the risk that the Respondent might renounce Albanian citizenship justified not giving him an opportunity to make representations in advance. However, it allowed his appeal on one ground: it held the Secretary of State had not separately exercised her discretion under section 40(2) but had merely found the “conducive” precondition satisfied. It remitted the matter to the Secretary of State.

The Secretary of State appealed to the Court of Appeal, challenging that finding on discretion. The Respondent, by respondent’s notice, sought to uphold the Upper Tribunal’s result on additional grounds rejected below: that the process was procedurally unfair due to lack of opportunity for pre-decision representations, and that an unlawful secret policy (the May 2020 submission) had been applied. The Court of Appeal allowed the Secretary of State’s appeal on the discretion point, holding that the materials (especially the December 2020 submission and the Notice) showed a conscious exercise of discretion, including engagement with section 55 and article 8 factors.

However, the Court of Appeal dismissed the appeal overall by upholding the Respondent’s procedural fairness ground. Proceeding on the same mistaken assumption as the tribunals as to the scope of a section 40A appeal, it reasoned that the combination of (i) the Secretary of State’s practice of serving the order almost immediately after the notice, to avoid renunciation of foreign citizenship, and (ii) an appeal said to be limited to public law review on the original material, created a “fairness gap”. The Respondent had been deprived of his citizenship without ever having an effective opportunity to put forward reasons, including new evidence such as the March 2021 risk assessment or arguments under the May 2020 policy, to persuade the Secretary of State not to exercise the discretion to deprive. On that basis the Court of Appeal held the decision and order procedurally unfair and ordered that the Notice and Order be quashed.

The Secretary of State appealed to the present court, and the Respondent cross-appealed on further grounds, including the alleged absence of evidence of any real risk of renunciation, the application of an unpublished policy, and the alleged failure to exercise discretion.

Legal Issues Presented

1. Whether, assuming the Secretary of State was entitled to decide to deprive the Respondent of British citizenship without first inviting representations, principles of procedural fairness required her to offer to reconsider that decision on the merits in light of any subsequent representations, failing which the Notice and Order were procedurally unfair (Issue 1).
2. Whether, in any event, the Court of Appeal erred in quashing the Notice and Deprivation Order (Issue 2).
3. On the cross-appeal, whether, in the absence of evidence about Albanian law and the process for renunciation of Albanian citizenship, the Court of Appeal erred in accepting that it was legitimate for the Secretary of State to operate a system of deprivation without first giving the Respondent an opportunity to make representations (Issue 3).
4. On the cross-appeal, whether the making of the Deprivation Order was unfair because it was based on a policy in the May 2020 submission which was unpublished and not disclosed to the Respondent until after the Order was made (Issue 4).
5. On the cross-appeal, whether the Court of Appeal erred in rejecting the Upper Tribunal’s conclusion that the Secretary of State had failed to consider the separate exercise of her discretion under section 40(2) (Issue 5).

Arguments of the Parties

Appellant (Secretary of State)

• The statutory scheme in sections 40 and 40A (and, where applicable, section 2B) is designed so that procedural fairness is secured through the right of appeal, not through pre-decision representations. The focus on the “decision” and on notice after the decision supports that reading.
• Consistently with the decisions in Begum (No 1), N3 and U3, an appeal under section 40A or section 2B is a substantive appeal on the merits, not confined to public law review or to material before the Secretary of State at the time of the original decision. New evidence can be adduced and is considered.
• When new material emerges during the appeal, the deprivation decision is kept under review by the Secretary of State and, if maintained, it is that maintained decision which the tribunal considers. There is therefore no “fairness gap” that would justify imposing an extra-statutory obligation to invite representations or to offer reconsideration outside the appeal process.
• The statutory scheme, properly interpreted, impliedly excludes any requirement to invite pre-decision representations (applying limb (i) of the guidance in Bank Mellat). Introducing such a requirement would undermine the intended ability to act swiftly, particularly where renunciation of foreign citizenship could defeat the deprivation power.
• The May 2020 submission did not create a legally distinct, unpublished policy beyond the published Nationality Instructions; alternatively, even if it did, any initial unfairness was cured because the Respondent learned of it during the FTT proceedings and had a full opportunity to contest its application on appeal.
• The materials before the court, particularly the December 2020 submission and the Notice, show that the Secretary of State appreciated and exercised her discretion under section 40(2), weighing the public interest, the May 2020 criteria, section 55 considerations and human rights issues.
• Neither the FTT, the Upper Tribunal nor the Court of Appeal had power to “quash” the Notice and Order in the judicial review sense. On a statutory appeal the correct consequence of success is that the decision and consequential order are of no effect, and the tribunals have only such incidental powers as to “set aside” rather than quash.

Respondent (Cross-Appellant)

• The Respondent argued that depriving him of citizenship without giving him any opportunity, at any stage prior to the decision, to make representations or adduce evidence (including about his criminality, family life, risk of reoffending and the application of the May 2020 criteria) was procedurally unfair under the general principle in Bank Mellat. On the understanding that an appeal under section 40A was limited to public law review on existing material, the appeal could not remedy this unfairness.
• It was contended that the Secretary of State could only justify omitting pre-decision representations if there was a real, evidenced risk that the Respondent could and would renounce Albanian citizenship. No evidence was adduced about Albanian law on renunciation, so the Secretary of State had no sufficient basis for assuming such a risk.
• The May 2020 submission set out a narrower “highest harm” policy for using the section 40(2) power, which was not publicly available at the time of the decision. Relying on Lumba, the Respondent argued that taking a decision under an unpublished detrimental policy was unlawful.
• He further submitted that the Secretary of State had mischaracterised or failed properly to apply her own policy, since his offending did not reach the level of “most serious and high profile” cases envisaged by the May 2020 submission.
• The Respondent argued that the Secretary of State had not lawfully exercised the discretionary element of section 40(2), but had treated the satisfaction of the “conducive to the public good” precondition as determinative, without a distinct discretionary evaluative step.
• On the procedural consequence of the Court of Appeal’s judgment, the Respondent supported the view that the Notice and Order had been rendered unlawful and should be formally set aside or quashed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7; [2021] AC 765 (“Begum No 1”)	Explains the nature of appeals under section 2B; distinction between appellate and supervisory jurisdiction; variability of legal principles depending on the issue; role of the Secretary of State’s discretion under section 40(2); SIAC’s role on statelessness and on proportionality under the Human Rights Act.	Used to clarify that deprivation appeals are substantive appeals on the merits, not limited to judicial review grounds, and that different standards apply to different aspects of the decision. Also relied on for the approach to policy application and for indicating that new evidence can be considered on appeal.
R (N3) v Secretary of State for the Home Department [2025] UKSC 6; [2025] 2 WLR 386 (“N3”)	Clarifies SIAC’s role in making its own findings on statelessness and fraud; confirms that both SIAC and the FTT decide deprivation appeals on all the evidence before them, not just material before the Secretary of State; explains that appeals are not judicial review; explains the practical consequences of a successful appeal and the Secretary of State’s obligation to treat the decision as having no effect.	Relied on to establish that appeals under section 40A and section 2B are of the same fundamental character; to reject the “public law only” approach adopted by the tribunals and the Court of Appeal; and to explain that there is no fairness gap because new evidence can be presented and the decision is kept under review.
U3 v Secretary of State for the Home Department [2025] UKSC 19; [2025] 2 WLR 1041 (“U3”)	Confirms that statutory appeals under section 2B are appeals on the merits; allows new evidence, including post-decision material; explains that the Secretary of State keeps the decision under review during the appeal and that the maintained decision is what is under challenge; emphasises that different issues attract different legal principles.	Applied to show that the FTT should have admitted the March 2021 risk assessment and that the deprivation appeal is not confined to the original evidential picture. Supported the conclusion that fairness is secured through the appeal process and that no additional procedural layer is required.
Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238 (IAC)	Provided earlier Upper Tribunal guidance that appeals should focus on the lawfulness of the Secretary of State’s decision as at the date it was made and on public law error.	Identified as having influenced the mistaken common assumption in the FTT and Upper Tribunal that the appeal was confined to public law review of the original decision.
Chimi v Secretary of State for the Home Department (Deprivation appeals; scope and evidence) (Cameroon) [2023] UKUT 115 (IAC)	Upper Tribunal guidance, based on its reading of Begum No 1, about the scope of deprivation appeals and admissibility of new evidence.	Cited as part of the background demonstrating how the mistaken “time-of-decision only” approach had become common in deprivation appeals.
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 (“Tameside”)	Authority on the decision-maker’s duty to take reasonable steps to inform themselves of relevant matters before making a decision.	Relied on by the Respondent in arguing that the Secretary of State had a duty to investigate his propensity to reoffend, including obtaining views such as the March 2021 risk assessment. The court held that, given the nature of the deprivation decision and policy in Pham (No 2), no such inquiry duty was a precondition to deprivation.
Pham v Secretary of State for the Home Department [2018] EWCA Civ 2064; [2019] 1 WLR 2070 (“Pham No 2”)	States that, in the context of serious offending, the Secretary of State need not establish a propensity to reoffend before deciding that deprivation is conducive to the public good.	Used by both the FTT and Upper Tribunal, and endorsed in the analysis, to support the conclusion that the Secretary of State could lawfully decide to deprive on the basis of the seriousness of the Respondent’s established offending alone, even if the future risk of offending were low.
Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591	Explains that on statutory appeals, the principles applied depend on the subject matter and the extent to which the appellate body can reassess the decision-maker’s balance; different aspects of a decision may attract different standards.	Cited to reinforce that appeals under section 2B (and by analogy section 40A) are appellate in nature but may apply administrative law principles to particular issues, without converting the whole appeal into a judicial review.
R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245 (“Lumba”)	Holds that decisions taken under an unpublished policy which affects individuals detrimentally are unlawful; fairness requires publication of policies needed for meaningful representations.	Relied on by the Respondent to argue that the May 2020 submission was an unpublished policy. The court accepted that the May 2020 submission was indeed a narrower policy which ought to have been disclosed, but held that any unfairness was cured on appeal once the Respondent knew of it and had a full opportunity to contest its application.
Bank Mellat v HM Treasury (No 2) [2014] AC 700 (“Bank Mellat”)	Articulates a general principle of procedural fairness: a person foreseeably significantly affected by a statutory power should normally have an opportunity to make representations before its exercise, unless the statute excludes this or it would be impossible, impractical or pointless.	The Court of Appeal had applied this principle to find a fairness gap. The present court held that, properly interpreted, sections 40 and 40A fall within limb (i) of the Bank Mellat guidance: Parliament impliedly excluded a pre-decision representation requirement, because fairness is secured by the statutory appeal.
R (Balajigari) v Secretary of State for the Home Department [2019] EWCA Civ 673; [2019] 1 WLR 4647	Cited for its quotation of Lord Neuberger’s procedural fairness formulation in Bank Mellat.	Provided the wording adopted by the Upper Tribunal and the Court of Appeal when assessing whether the Respondent should have had an opportunity to make pre-decision representations.
R (Shvidler) v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30; [2025] 3 WLR 346	Reiterates that proportionality assessments under the Human Rights Act are made objectively by the court or tribunal, subject to any margin of appreciation.	Cited to illustrate that some issues in statutory appeals (such as proportionality) require independent assessment by the appellate body, contrasting with issues where deference to the Secretary of State is appropriate.
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560	Establishes the principle that decisions of a minister can be taken by officials in the minister’s name.	Relied on in explaining that, in practice, the Secretary of State’s deprivation decision is kept under review by officials during the appeal process, and that it is the maintained decision which the tribunal examines.
Al Jedda v Secretary of State for the Home Department (SIAC, Appeal No SC/66/2008, unreported, 7 April 2009)	Earlier SIAC decision that had treated its jurisdiction under section 2B as uniform and had mischaracterised its role.	Cited, via Begum No 1, as an example of error in treating the jurisdiction as uniform without regard to the nature of the decision and relevant statutory provisions.
Attorney General v Great Eastern Railway Company (1880) 5 App Cas 473	States that statutory bodies have, by implication, all powers fairly incidental to, or consequential upon, what the legislature has authorised, unless expressly prohibited.	Used to support the conclusion that the FTT and SIAC have incidental powers to set aside a deprivation decision, notice and order when allowing an appeal, even though the statutes do not expressly confer a power to “quash”.
Begum v Secretary of State for the Home Department [2024] EWCA Civ 152; [2024] 1 WLR 4269	Held that, in national security deprivation cases with appeals to SIAC, sections 40(5) and 2B constitute an exhaustive procedural framework, impliedly excluding any obligation to invite pre-decision representations; noted that this applies equally where the person is in the UK or the decision is not based on national security.	Relied on by analogy to support the conclusion that, in deprivation cases with appeals to the FTT under section 40A, Parliament likewise intended to exclude any duty to seek pre-decision representations; fairness is provided by the notice and right of appeal.

Court's Reasoning and Analysis

1. Nature of deprivation appeals and the alleged “fairness gap” (Issues 1 and 2)

The court began by analysing the statutory framework in sections 40 and 40A (and section 2B). It emphasised that the statute confers a right of appeal against the “decision” to make a deprivation order, not merely against the order itself, and that section 40(5) contemplates notice being given after the Secretary of State has decided to make an order, with reasons and information about the right of appeal. This structure indicates that Parliament intended procedural fairness to be satisfied through the appeal mechanism, rather than by requiring a pre-decision hearing.

Drawing on Begum No 1, N3 and U3, the court reaffirmed that appeals under section 2B, and by express extension under section 40A, are substantive appeals on the merits. They are not confined to public law review of the legality of the original decision as at the date it was taken. The appellate bodies can receive new evidence, including evidence that did not exist at the time of the original decision, and must decide the issues before them on the basis of all material in the appeal. The applicable legal principles vary depending on the particular issue (such as statelessness, fraud, proportionality or the Secretary of State’s evaluative judgment), but the scope of the appeal itself is broad.

In particular, U3 established that when new evidence arises during the appeal, the Secretary of State keeps the deprivation decision under review, and if she maintains the decision, it is that maintained decision that is effectively under challenge. The court stressed that SIAC and the FTT do not exercise a judicial review function: they determine whether the appeal succeeds on any ground, applying the appropriate standard for that ground. If the appeal is allowed, the Secretary of State is bound by the outcome.

On that basis, the court rejected the assumption, shared by the FTT, Upper Tribunal and Court of Appeal, that appeals under section 40A are limited to public law review of the original decision based only on material available at that time. That mistaken assumption explained why the March 2021 risk assessment had been treated as irrelevant and why the Court of Appeal perceived a “fairness gap”. Properly understood, there is no such gap: the Respondent had, and used, the opportunity on appeal to advance evidence and arguments (including about the seriousness of his offending, his risk of reoffending, and the policy criteria) to seek to persuade the Secretary of State to maintain or rescind the deprivation decision and to persuade the FTT to allow his appeal.

Accordingly, the court held that fairness did not require the Secretary of State to promise any separate reconsideration on the merits outside the appeal process, and the Court of Appeal was wrong to impose such an obligation. There was no procedural unfairness in the Secretary of State’s making and then maintaining the deprivation decision in the manner she did. Issue 1 was therefore resolved in favour of the Secretary of State. Given that conclusion, the Court of Appeal’s order quashing the Notice and Order (Issue 2) could not stand.

The court noted that, although the March 2021 risk assessment should have been admitted by the FTT under the correct understanding of the appeal’s scope, that omission was not raised as a ground of appeal and, in any event, was highly unlikely to have altered the outcome. The Secretary of State was entitled, under Pham (No 2), to treat the seriousness of the Respondent’s offending as sufficient to justify deprivation even if his risk of reoffending were low, and the Respondent’s refusal to give evidence limited the weight that could be accorded to the risk assessment.

2. Power to “quash” or set aside the deprivation decision and order (Issue 2)

Although rendered academic by the outcome on fairness, the court addressed the Court of Appeal’s formal order. It held that appeals under section 40A and section 2B are not judicial review proceedings, and therefore the terminology of “quashing” is not strictly accurate. However, consistent with general principles of statutory interpretation and the reasoning in Attorney General v Great Eastern Railway Company, the FTT and SIAC possess all powers reasonably incidental to their appellate jurisdiction. Where a deprivation appeal is allowed, those powers include setting aside the Secretary of State’s decision and the consequential notice and order.

The Court of Appeal, exercising the same powers as the lower tribunal, could likewise set aside (though not technically “quash”) the Notice and Order. The court endorsed the desirability, identified in N3, of making the legal position explicit through appropriate orders, even though the Secretary of State is in any event bound to treat an unsuccessful decision as having no effect.

3. No duty to invite pre-decision representations; renunciation risk (Issue 3)

Addressing the Respondent’s cross-appeal argument that the Secretary of State had to show a real, evidenced risk of renunciation of Albanian citizenship before omitting pre-decision representations, the court disagreed. Applying the guidance in Bank Mellat, it held that this is a case where limb (i) applies: the statutory provisions, properly interpreted, impliedly exclude any requirement for pre-decision representations. Sections 40(5) and 40A prescribe a detailed procedure in which the Secretary of State decides, then gives notice with reasons and a right of appeal. That scheme is “directed to enabling the individual in question to mount an appeal, not to allowing them to make representations before the decision is made.”

Requiring the Secretary of State to investigate foreign nationality law, assess the practicality of renunciation and decide whether to invite representations in each case would undermine the swift and decisive action that the deprivation regime is designed to permit, particularly given Parliament’s awareness that renunciation is possible in at least some cases. The court aligned its analysis with the Court of Appeal’s decision in subsequent proceedings involving Ms Begum, which had held that sections 40(5) and 2B constitute an exhaustive procedural framework excluding a pre-decision representation duty. The same inference applies where the appeal route is to the FTT under section 40A. It was therefore not necessary to consider whether the Secretary of State had evidence of a real risk of renunciation, and Issue 3 failed.

4. Unpublished policy in the May 2020 submission (Issue 4)

The court accepted that the May 2020 submission did more than merely restate the published Nationality Instructions. It recommended a narrower approach focusing on “the most serious and high profile cases” and “highest harm offences”, which the Secretary of State accepted and applied. This meant that the criteria for exercising discretion under section 40(2) were more restrictive than the published policy, and anyone unaware of the May 2020 criteria could not make fully informed representations about whether their case fell within them. Applying Lumba, such a policy should, in principle, have been published.

However, the court held that, on the facts of this case, the Respondent could not obtain relief on this ground. By the time of the FTT hearing he had been provided with the May 2020 submission and was able, through his representatives, to argue that his offending did not meet the “highest harm” threshold. The central requirement identified in Lumba—that affected persons know the policy in order to make meaningful representations—was satisfied at the stage that matters for the appeal, namely the consideration of the deprivation decision as maintained during the appellate process.

The court stressed that, under the statutory scheme, fairness is not assessed solely at the point of the original decision, but in light of the whole process including the appeal. Since the Respondent had a full and fair opportunity on appeal to challenge the policy and its application, no ongoing unfairness existed that could justify setting aside the deprivation decision. Issue 4 was therefore dismissed.

The court added that the Notice was defective in not disclosing that the May 2020 policy had been applied, which could have been unfair had the Respondent not appealed. In the event, he did appeal and obtained disclosure; thus no actual unfairness resulted in this case.

5. Exercise of discretion under section 40(2) (Issue 5)

Finally, the court addressed whether the Secretary of State had failed to exercise her discretion distinct from finding that deprivation was conducive to the public good. It held that the December 2020 submission and the Notice demonstrated that she had done so. Those documents dealt not only with the “conducive” precondition but also with discretionary elements: the seriousness of the Respondent’s organised crime in light of the May 2020 policy; the interests of his children under section 55; and compatibility with Convention rights, particularly article 8. These factors are relevant only to discretion, not to the existence of the power.

The Court of Appeal had correctly concluded that the Secretary of State appreciated the existence of a discretion and exercised it in deciding to make a deprivation order. The Upper Tribunal’s contrary conclusion was therefore wrong, and Issue 5 of the cross-appeal failed.

Holding and Implications

Holding: The court allowed the Secretary of State’s appeal and dismissed the Respondent’s cross-appeal. The deprivation decision and the associated Deprivation Order were held to be lawful. There was no requirement, as a matter of procedural fairness, for the Secretary of State to invite pre-decision representations or to offer ex post facto reconsideration outside the appeal process, and no continuing unfairness arose from the use of the unpublished May 2020 policy once it had been disclosed and could be challenged on appeal.

Implications: The decision confirms that:

• Appeals against deprivation of citizenship under section 40A (to the FTT) and section 2B (to SIAC) are substantive appeals on the merits, not limited to public law review of the Secretary of State’s original decision or to the material then available. New evidence, including post-decision evidence, may be considered.
• Procedural fairness in the deprivation regime is primarily secured through the statutory appeal, not through a requirement of pre-decision representations. Sections 40 and 40A impliedly exclude such a requirement.
• Where an unpublished policy narrowing the exercise of the deprivation power is later disclosed and can be fully contested on appeal, the earlier non-publication does not necessarily render the maintained decision unlawful on fairness grounds in that appeal.
• The Secretary of State may, consistently with earlier authority, treat the seriousness of established offending as sufficient to justify deprivation as conducive to the public good, even without a finding of propensity to reoffend.
• Tribunals hearing deprivation appeals have incidental powers to set aside the deprivation decision, notice and order where an appeal is allowed, and it is desirable for them to make clear orders to reflect the effect of their judgments.

The decision primarily clarifies the proper understanding of deprivation appeals and procedural fairness within the existing statutory framework, rather than establishing a new, freestanding procedural right.