D5, D6 and D7 v Secretary of State for the Home Department

Hearing dates: 13 and 14 May 2025

Approved Judgment

This judgment was handed down remotely at 11.00 am on 24 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

These linked appeals are, I think, the fourth case to reach this court in the wake of R (Begum) v Special Immigration Appeals Commission [2021] UKCSC 7; [2021] AC 765 (‘ Begum’). In Begum the Secretary of State decided to deprive an appellant of her nationality under section 40 of the British Nationality Act 1981 (‘the BNA’). Begum addressed the approach which the Special Immigration Appeals Commission (‘SIAC’) must take to appeals under section 2B of the Special Immigration Appeals Commission Act 1997 (‘the Act’) against such a decision. The Supreme Court revisited that issue very recently in U3 v Secretary of State for the Home Department [2025] UKSC 19 (‘ U3’).

In Begum and in U3 the Secretary of State's decision was based on an assessment by the Security Service that the appellant posed a risk to national security. The legal issue in these four appeals is whether the approach described in U3 applies when the Secretary of State has decided to deprive appellants of their British citizenship or to exclude them from the United Kingdom solely or mainly on the basis of an assessment that they are involved in serious organised crime (‘SOC’), and in order to disrupt that activity.

Andrews LJ gave the appellants in the first appeal permission to appeal on two linked grounds. They concern, in broad terms, the approach which SIAC should take in cases like these. She gave C9 permission to rely on a similar argument, while recognising that, on the facts of that case, what the correct approach was might well make no difference. She also gave him permission to argue that he should have been given an opportunity to influence the decision in his case before it was made.

On these appeals, D5, D6 and D7 were represented by Mr Grieves KC, Ms Fitzsimons and Mr Ricca-Richardson. C9 was represented by Mr Southey KC. The Secretary of State was represented in all four appeals by Mr Blundell KC, Mr Hays and Ms Parsons. The Special Advocates for D5, D6 and D7 were Mr Goudie KC and Mr Lewis. The Special Advocates for C9 were Mr Goudie KC and Mr Jamieson. I thank all counsel for their written and oral submissions, which helped to clarify the issues. For convenience, I will refer to D5, D6 and D7 collectively, when that is appropriate, as ‘Ds’, and to all the appellants as ‘the appellants’.

Before the hearing, all the members of the court read the CLOSED material in order to decide whether or not a CLOSED hearing was needed. The court decided that no such hearing was necessary. It was nevertheless then necessary, because we had read the CLOSED material, for the factual parts of the draft OPEN judgment to be written on a CLOSED laptop and for it to be security-checked before it could be circulated to the OPEN representatives in draft. That factor (with its associated complications) has necessarily somewhat delayed the handing down of this judgment.

That factor also means that I have made this judgment as short as possible. I have not described the decision-making documents, or the relevant policies, in any detail, for three further reasons. First, they were explored during the hearing, and in post-hearing written submissions, for which I thank counsel. Second, in the light of my decision on the main legal issue, their details are not significant. A third linked reason is that it follows that SIAC's account of these matters, which I summarise, is sufficient for the purposes of this judgment.

After the hearing of these appeals, we were very sorry to be told that one of the members of the court which heard these appeals, William Davis LJ, had died suddenly on 7 June 2025. The Master of the Rolls then made a direction under section 43(2) of the Constitutional Reform Act 2005 that the court was duly constituted by the two surviving members of the constitution. This factor also led to some delay.

For reasons which I will describe, my conclusion on the issue I have described in paragraph 2, above, is that SIAC must take the same approach to all appeals to it against decisions to deprive an appellant of his British citizenship on the grounds that it is conducive to the public good, and in which the Secretary of State relies in whole or in part on material which cannot be disclosed in the public interest. There is no basis in the statutory language for distinguishing between the different facets of the public good on which the Secretary of State may rely in making such a decision. In other words, SIAC must take the same approach in cases in which appellants have been deprived of their citizenship on the ground that they have been involved in and/or are likely to continue to be involved in, SOC, as it must take in national security cases. The upshot is that SIAC did not err in law in dismissing the appellants' appeals for the reasons it gave. I would therefore dismiss all four appeals to this court.

The legal framework

The legislative history is described in paragraphs 11–33 of the judgment of Elisabeth Laing LJ in U3 v Secretary of State for the Home Department [2023] EWCA Civ 811; [2024] KB 433 (‘ U3 (CA)’). I do not repeat it here. A feature of the legislative history which is not mentioned in U3 (CA), because U3 (CA) was a national security case, is a theme relating to decisions taken on the grounds that they are conducive to aspects of the public good other than national security.

Part II of the 1971 Act is headed ‘Appeals’. Section 12 continued the appellate authorities which were set up under the Immigration Appeals Act 1969, that is to say, the Immigration Appeal Tribunal (‘the IAT’) and the adjudicators.

Section 13 dealt with various first instance appeals to both bodies against exclusion from the United Kingdom. Section 13(5) provided that a person could not appeal against a refusal of leave to enter, or a refusal of entry clearance, if the Secretary of State certified that directions had been given by him (and not by a person acting under his authority) for the appellant not to be given entry to the United Kingdom ‘on the ground that his exclusion is conducive to the public good…’.

Section 14 dealt with appeals against conditions. Section 14(3) barred an appeal if the Secretary of State certified that the appellant's departure from the United Kingdom would be ‘conducive to the public good as being in the interests of national security, or of the relations between the United Kingdom and any other country, or for other reasons of a political nature, or the decision questioned on the appeal was taken on that ground by the Secretary of State (and not by a person acting under his authority)’.

Section 15 dealt with appeals against a decision of the Secretary of State to make, or to refuse to revoke, a deportation order. Section 15(3) barred an appeal if the ground of the decision was that the appellant's deportation was ‘conducive to the public good as being in the interests of national security, or of the relations between the United Kingdom and any other country, or for other reasons of a political nature’. Section 15(5) barred an appeal against a refusal to revoke a deportation order if the Secretary of State certified that the appellant's exclusion from the United Kingdom was ‘conducive to the public good’ or if the revocation refused was on that ground ‘by the Secretary of State (and not by a person acting under his authority)’.

The British Nationality Act 1981

Part I of the BNA deals with the acquisition of British citizenship, Part II with the citizenship of British Overseas Territories, Part III with British Overseas citizenship, and Part IV with British subjects. Part V makes a range of miscellaneous and supplementary provision, including section 36 which enacts Schedule 2 about the reduction of statelessness.

Section 40 is headed ‘Deprivation of citizenship’. Section 40(1) defines ‘citizenship status’. The definition includes status as a ‘British citizen’.

Section 40(2) gives the Secretary of State a power by order to deprive a person of a citizenship status ‘if the Secretary of State is satisfied that deprivation is conducive to the public good’. That power is qualified by section 40(4), which bars its exercise if ‘the Secretary of State is satisfied that the order would make the person stateless’. Section 40(4) is itself qualified by section 40(4A). Its effect is that the Secretary of State may exercise the section 40(2) power if the Secretary of State...