It is all about context, said the Upper Tribunal in Ahmed and Others (deprivation of citizenship) [2017] UKUT 00118 (IAC), in declining to find in that appeal that the Secretary of State owed a Section 55(1) proactive duty of enquiry in relation to the consideration of the welfare and best interests of the children.
The conjoined appeals in Ahmed had their origins in a series of decisions made by the Secretary of State proposing to deprive the Appellants of their British citizenship under section 40(2) of the British Nationality Act 1981. Within the course of the appeals however, the Upper Tribunal had to consider the content of the duty owed by the Secretary of State under section 55(1) of the 2009 Act in the Appellant’s cases.
SECTION 55 OF THE 2009 ACT
Section 55 of the Borders, Citizenship and Immigration Act 2009 provides, inter alia:
“(1) The Secretary of State must make arrangements for ensuring that—
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom; and
(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2) The functions referred to in subsection (1) are—
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer;
(c) any general customs function of the Secretary of State;
(d) any customs function conferred on a designated customs official.
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).”
WHAT WAS THE ISSUE?
On behalf of the Appellants the following was submitted, among other matters:
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The Secretary of State had committed the “primary and basic flaw” in confining her consideration to the immediate consequences of depriving the Appellants of British citizenship and disregarding the reasonably foreseeable consequences of this measure.
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The Secretary of State had failed in her duty to make enquiries concerning the Appellants children and to obtain relevant information, such as social services input, relating to, the affected children.
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It was put forward the no enquiries were made in the appeals: in light of the publicity, notoriety and nature of the crimes committed by the Appellants, it was submitted that there would plainly have been a grave impact upon the children- despite the obvious need for full and proper information with respect to the impact upon the children, the Secretary of State did not make any enquiries.
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The First Tier Tribunal(FTT), in failing to identify these legal defects in the Secretary of State’s decisions, had erred in law.
It was submitted in response, on behalf of the Secretary of State that:
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having regard to the context, upon which some emphasis was placed, the Secretary of State’s duty was limited to considering the extent to which the impugned decisions impacted upon the need to safeguard and promote the welfare of the affected children.
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the Tribunal was reminded of the terms in which the children’s interests were considered in the substituted decisions and also the manner in which these issues were explored by the FTT in its successive decisions.
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the Appellants’ cases under the aegis of this ground of appeal were really advanced in a vacuum: they neither laid before the Secretary of State or the FTT evidence bearing on the children’s’ best interests nor made relevant representations. Nor did they point to the existence of any such evidence at the Upper Tribunal
CANVASSED CASELAW
The Upper Tribunal made reference to leading decisions, which emanate from the Supreme Court and the Court of Appeal, which were reviewed by the Upper Tribunal in:
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JO and Others (Section 55 Duty) Nigeria [2014] UKUT 00517 (IAC),
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MK (Section 55 – Tribunal Options) Sierra Leone [2015] UKUT 00223,
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(IAC) and Kaur (Section 55/Public Interest Interface) [2017] UKUT 14 (IAC).
SS (Nigeria) v SSHD [2013] EWCA Civ 550:
The Upper Tribunal in Ahmed stated that as regards where the onus rests, Mann J in SS (Nigeria), stated at paragraph 62:
“In this appeal Counsel for the appellant placed considerable emphasis on the need for the Tribunal to satisfy itself as to the interests of the child in such a way as suggested an inquisitorial procedure. I agree with Laws LJ that the circumstances in which the Tribunal will require further enquiries to be made, or evidence to be
obtained, are likely to be extremely rare. In the vast majority of cases, the Tribunal will expect the relevant interests of the child to be drawn to the attention of the decision maker by the individual concerned. The decision maker would then make such additional enquiries as might appear to him or her to be appropriate. The scope
for the Tribunal to require, much less indulge in, further enquiries of its own seems to me to be extremely limited, almost to the extent that I find it hard to imagine when, or how, it could do so.”
And at paragraph 58:
“I would not wish for a moment to sideline the importance of s.55 of the 2009 Act or the guidance issued under it … or the statements of high authority to the effect that the child’s best interests must be properly gone into. But in the circumstances of this case it is in my judgment wholly unrealistic to suppose that any further evidence, let alone enquiries (whether of the child himself or anyone else) …. might offer the least possibility of establishing a case under Article 8 sufficiently strong to prevail over the extremely pressing public interest in the appellant’s deportation.”
JO and Others (Section 55 Duty) Nigeria [2014] UKUT 00517 (IAC):
The Upper Tribunal examined the issue in a little detail in JO Nigeria between paragraphs 10 to 13.
In JO Nigeria, the Upper Tribunal, having drawn attention to the twofold duties enshrined in section 55, stated at [13]:
“The question of whether the duties imposed by Section 55 have been duly performed in any given case will inevitably be an intensely fact sensitive and contextual one. In the real world of litigation, the tools available to the court or tribunal considering this question will frequently, as in the present case, be confined to the application or submission made to the Secretary of State and the ultimate letter of decision ….”
MK (Section 55 – Tribunal Options) Sierra Leone [2015] UKUT 00223:
It was noted that the Upper Tribunal held that where a breach of section 55(1) is canvassed, the onus rests on the Appellant to establish this on the balance of probabilities and there is no onus on the Secretary of State.
DUTY TO BE MEASURED BY REFERENCE TO THE CONTEXT
The Upper Tribunal reasoned and concluded as follows:
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The Upper Tribunal considered that the content of the duty owed by the Secretary of State under section 55(1) of the 2009 Act in the cases of the second to fourth Appellants must be measured by reference to the context. In this respect, the context to which the decisions underlying the conjoined appeals belonged had two basic ingredients, the first factual, and the second legal.
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It seemed to the Upper Tribunal that given the particular course and contours of the Secretary of State’s decision making processes in these appeals, considered in tandem with the full factual and legal context, the observation of Mann J above in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550 applied a fortiori in the instant context.
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It was noted in Ahmed, that while the possibility of a duty of proactive enquiry on the part of the Secretary of State in a given context was also canvassed in JO Nigeria, at paragraph 14, the Upper Tribunal in that case declined to determine this discrete issue on a hypothetical basis, though recognizing its potential to arise in a specific, concrete fact sensitive context.
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The context in which the decisions of the Supreme Court and the Court of Appeal noted in Kaur were made, was of some significance. These were all cases involving decisions having final, permanent or long term consequences, by which the individual was compelled to leave the United Kingdom with no further decision to follow. The context enveloping the Secretary of State’s decisions underlying the instant appeals in Ahmed was to be contrasted. Furthermore, issues of the kind canvassed under the banner of this ground of appeal are to be evaluated realistically and, where appropriate, robustly, as per paragraph 58 in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550: “I would not wish for a moment to sideline the importance of s.55 of the 2009 Act or the guidance issued under it … or the statements of high authority to the effect that the child’s best interests must be properly gone into. But in the circumstances of this case it is in my judgment wholly unrealistic to suppose that any further evidence, let alone enquiries (whether of the child himself or anyone else) …. might offer the least possibility of establishing a case under Article 8 sufficiently strong to prevail over the extremely pressing public interest in the appellant’s deportation.” The Upper Tribunal stated that notably, this was stated in the context of a decision having final character and long term consequences, namely deportation. The Upper Tribunal stated that this passage also reflected the Upper Tribunal’s assessment of the interaction between section 55 and Article 8 ECHR in JO (Nigeria), at paragraph 7.
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The Upper Tribunal stated that the question of whether in any given context the Secretary of State’s duty under section 55(1) has been discharged will also require consideration of the decision- making process adopted in the individual case. The effect of the decision-making process in the present cases was that the second to fourth Appellants had ample opportunity to make to the Secretary of State such representations and to provide such evidence bearing upon the children’s best interests as they wished.
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The Upper Tribunal considered that in this decision making context, the Secretary of State was entitled to expect the second to fourth Appellants and their representatives proactively to equip her with the representations and information necessary to enable an adequate best interests assessment to be carried out or to suggest other appropriate paths of enquiry. While this analysis will not invariably apply to every context, the Upper Tribunal considered it applicable in these cases.
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The Upper Tribunal found no evidential foundation to support the contention that in any of these cases the Secretary of State was under a duty of further proactive enquiry.
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The Upper Tribunal accepted the submission made on behalf of the Secretary of State that the Appellants’ argument to the contrary was made in a vacuum.
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Bearing in mind the features of the context, the Upper Tribunal was satisfied that the substituted decisions from the Secretary of State contained an adequate best interests assessment.
HOW THE APPELLANTS COULD REMEDY THE DEFICIENCIES IN FUTURE
While the Upper Tribunal found merit in the Secretary of State’s submission that the Appellants did not place any best interests material before the FTT, other than the witness statements provided and the oral evidence elicited in questioning, the Upper Tribunal stated that it was not disputed that the second to fourth Appellants would be at liberty to make such representations and provide such evidence bearing on their children’s best interests as they were desirous of providing at the future stages likely to be reached.
By virtue of section 55(1), overlaid by the public law principles highlighted in JO Nigeria, the Secretary of State would be under a duty to consider all material of this kind prior to making a removal or deportation decision consequential thereon. The Upper Tribunal also stated that the separate duty under section 55(3) would also bite.
Insofar as section 55 and Article 8 issues had not arisen forcefully at this stage of the broader landscape, any omission or gap in representations or evidence – for which the Upper Tribunal considered that the Appellants must be held responsible – could be remedied in the future, when further decision making contexts would have two particular features, one legal and the other factual.
The legal factor is that any future decision requiring an individual to leave the United Kingdom will have consequences quite different from the (mere) notice of intention decisions currently in existence and the Appellants would have a right to be heard. The Upper Tribunal stated that at that final stage such consequences would raise the spectre of long term or permanent exclusion of the second to fourth Appellants from the day to day lives of their families and prolonged separation. The ‘playing field’ would be quite different.
Furthermore, the Upper Tribunal considered that one would expect further representations and evidence to address the distinction between the impact on the affected children flowing from the harrowing events in their lives during recent years and any predicted further or different impact arising out of the deportation or removal of their respective fathers. This was considered to be an issue which the Appellants did not address in their representations to the Secretary of State: this was a paradigm illustration of a context where all the tools and cards were held by the Appellants and their families. The Upper Tribunal also considered that there might also , foreseeably, be other evidence – for example from schools, clubs, churches et alia – and any expert evidence they might see fit to commission.
It was considered that the stand out factual feature of future decision making processes was that further decisions would have to be based upon such updated representations and information as are assembled and advanced. The Upper Tribunal stated that drawing attention to the broader canvas in this way served to highlight that whilst section 55 and Article 8 issues arose at this stage, in the instant cases they had done so less forcefully than was likely in the predictable future.
SECTION 55(1) AND SECTION 55(3) DUTY
The Upper Tribunal referred to section 55(3) of the 2009 Act and stated that as emphasised in JO (Nigeria), this contains a discrete, free standing duty [12].
It was noted that no breach of section 55(3) was canvassed in the Appellants’ grounds of appeal, and this issue was not identified in the grant of permission to appeal: on the contrary, the grant of permission was specifically confined to the primary, substantive duty imposed by section 55(1).
Although Section 55(3) was noted not to be a live issue in the appeals, the Upper Tribunal nonetheless took the opportunity to observe that the duty imposed by section 55(3) is inextricably linked to that enshrined in section 55(1). The former duty is designed to facilitate and enhance the discharge of the latter. Context, as ever, would be all important.
The Upper Tribunal noted that in MK (Sierra Leone), the Upper Tribunal held that it is not necessary for the Secretary of State’s decision maker to make specific reference to the statutory guidance: see [19]. The Upper Tribunal had observed more than once that, based on its experience, the discrete statutory duty enshrined in section 55(3) appears to be honoured by the Secretary of State more in the breach than the observance. The Upper Tribunal in Ahmed considered that it was timely to reiterate this message.
The Upper Tribunal also observed that the section 55(3) impact in notice of intention decisions made under section 40(5) of the 1981 Act will invariably be calibrated according to the individual context and, further, will be assessed in the light of the Upper Tribunal’s evaluation of the reach and impact of the section 55(1) duty above. Beyond this however the Upper Tribunal in Ahmed stated that they did not venture in the present appeals, as this issue lay outwith the grant of permission to appeal and was not the subject of argument.