UK: Applying Begum Principles To Non-National Security Deprivation Appeals

In its OPEN Judgment in D5, D6 & D7 v Secretary of State for the Home Department (Deprivation/exclusion – Substantive) SC/176/2020, SC/177/2020 & SC/178/2020, the Special Immigration Appeals Commission (SIAC), confirmed that the principles laid out in (Begum) v Special Immigration Appeals Commission [2021] UKSC 7 regarding deprivation appeals apply, not only to national security cases, but generally to cases where deprivation of citizenship has been deemed conducive to the public good.

Background

The linked cases involved the appeals against the decisions to deprive D5 and D6 of their British citizenship and a review against the direction of the exclusion of D7 from the UK. The decisions/direction were made on the basis that deprivation and exclusion, respectively, was assessed to be conducive to the public good having regard to their involvement in serious and organised crime. The Secretary of State certified that in making each of these decisions, she had taken account of information which, in her opinion, should not be made public in the public interest. In view of this, the appeals and review came under SIAC's jurisdiction, by way of sections 2B and 2C of the SIAC Act 1997, respectively.

The Legal Framework

Section 2C of the SIAC Act 1997 makes it clear that exclusion directions are subject to an application to SIAC to set aside the direction, in determining which, SIAC must apply the principles which would be applied in judicial review proceedings. Conversely, section 2B refers to appeals against deprivation decisions. Notwithstanding this, in Begum it was held that these are not full-merit appeals, but appeals where the Secretary of State's assessment ought to be considered by applying public law principles.

Applicability of Begum Principles

Counsel for the appellants submitted that the principles identified in Begum only applied in national security cases, which involved an assessment of future risk to national security. In contrast, D5 and D6's case concerned whether the appellants had been involved in serious and organised crime, i.e. past events, not future risk. It was, thus, argued that the Secretary of State had to prove the facts on which she relied for the deprivation decisions.

SIAC disagreed and held that the Begum principles applied to the case, even though it did not involve national security. This was because of: 1) the nature of the decision, 2) the statutory framework and 3) the principles of democratic accountability and institutional competence, namely the same reasons identified in Begum as relevant to the matter of which legal principles apply in deprivation appeals.

SIAC held that the decision under challenge in each case was whether deprivation of citizenship (or exclusion) was conducive to the public good. The statutory power (of section 40(2) of the British Nationality Act 1981) does not distinguish between cases where the decision is founded on the interests of national security, and those that are founded on other public interest considerations, such as addressing serious and organised crime. The statutory provisions for the allocation of such appeals to SIAC (s.40A(2) BNA 1981 and s.2B SIAC Act 1997) do not distinguish between cases where the material relied on should be withheld in the interests of national security or in the public interest.

Importantly, the question for the Secretary of State is whether deprivation is conducive to the public good, which involves an assessment to which overlapping concepts of national security and the broader public interest are relevant. It is a decision that Parliament entrusted to the Secretary of State and not SIAC.

The principle of democratic accountability applies in decisions made to address serious and organised crime, as the Secretary of State is accountable to Parliament and, ultimately, the public, and has statutory obligations to determine the strategic priorities for combating serious and organised crime. The principle of institutional capacity also applies, as 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 the Director General must keep the Secretary of State informed of any information obtained by the NCA which may be relevant to the exercise of the deprivation power.

SIAC held that both national security and cases of serious and organised crime, where the issue is whether deprivation is conducive to the public good, involve assessments on future risk. That risk is likely to be assessed in light of information relating to past events. The nature of the risks and of the information, as well as the process of the collection of the information and its assessment, is similar in both national security and serious and organised crime cases.

Finally, SIAC stated that the authorities support a consistent approach to deprivation appeals, irrespective of the underlying reasons for the decision.

In view of this, SIAC confirmed that the Begum principles apply to deprivation appeals that do not involve matters of national security, and that they should be decided in accordance with public law principles (other than where a breach of a Convention right is raised).

By way of postscript, SIAC stated that, after its decision had been prepared in draft but before it was handed down, the Court of Appeal gave judgment in U3 v Secretary of State for the Home Department [2023] EWCA Civ 811 (this is analysed here). After inviting and receiving written submissions from the parties as to the impact of U3, SIAC confirmed that the approach taken reflected the principles in U3, namely that SIAC can, where appropriate, make findings of fact on the balance of probabilities, as long as it does not use such findings as a platform for substituting its own view as to the risk to national security, or in this case, the risks from serious and organised crime. Other than adding the postscript and making a change to a paragraph that did not arise from the judgment in U3, SIAC considered it was not necessary to revise the draft decision further.

Commentary on the SIAC's Judgment

It does not appear surprising that SIAC did not distinguish Begum and considered that the principles set out by the Supreme Court were not limited to deprivation appeals concerned with national security, but deprivation appeals under section 40(2) BNA 1981 broadly, where the deprivation has been assessed by the Secretary of State as conducive to the public good. The reasoning provided in paragraph 67 (1-9) is detailed and sound.

Nonetheless, although in obiter (thus with little significance), it appears that SIAC may have gone too far in commenting, in paragraph 67 (10) that the "authorities support a consistent approach to deprivation appeals, irrespective of the underlying reasons for the decision (and irrespective of whether the deprivation decision is made on conducive grounds, or because the Secretary of State is satisfied that registration or naturalisation was obtained by fraud: section 40(3)(a) BNA)." Part of its reasoning for this comment was that, in Begum, the Supreme Court started its consideration of the principles by reference to section 40(3) cases, rather than cases concerned with national security and that the Court of Appeal refused an application for permission to appeal in Ciceri, where the Upper Tribunal applied Begum to a deprivation appeal in a fraud case.

However, the Court of Appeal, in paragraph 173 of U3, stated that in some cases, SIAC not only may, but must make findings of fact. In obiter, it refers to both cases where statelessness is an issue and cases which raise issues under section 40(3) BNA 1981 as examples where SIAC has a duty to make findings. Given that s.40(3) cases do not involve an assessment of future risk, as s.40(2) cases do, but considering whether citizenship was obtained by means of fraud, namely a past event (with a mixed question of fact and law regarding causation), the Court of Appeal's comment would not be inconsistent with Begum. After all, Begum was an appeal against SIAC's preliminary decisions in a national security deprivation case, and for that reason was not considered to be an exhaustive account of SIAC's functions in a deprivation appeal.

Whilst ultimately not relevant to its decision, perhaps paragraph 67 (10) of SIAC's OPEN Judgment ought to have been amended in light of U3, which seems to favour a different approach to that established by the Upper Tribunal in Ciceri and Chimi regarding deprivation appeals against s.40(3) decisions made on the basis that citizenship was obtained by fraud. The exercise of the Secretary of State's discretion to deprive can of course only be reviewed by applying public law principles, as Parliament entrusted that decision to the Secretary of State. However, the question whether the condition precedent is established, which is a question of fact (not an assessment of future risk), should be subject to a finding by SIAC of the First-tier Tribunal, having heard and considered evidence accordingly.

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