Shabir Ahmed v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice McCloskey,Holmes |
| Judgment Date | 10 February 2017 |
| Neutral Citation | [2017] UKUT 118 (IAC) |
| Date | 10 February 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2017] UKUT 118 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The Hon. Mr Justice McCloskey, President
Deputy Upper Tribunal Judge Holmes
For the Appellants: Shabir Ahmed: Mr R Sharma, of counsel, instructed by Platt Halpern Solicitors (by written submission only)
Adil Khan, Qari Abdul Rauf and Abdul Aziz: Mr Z Jafferji, of Counsel Instructed by Burton & Burton Solicitors
For the Respondent: Ms C McGahey QC and Mr V Mandalia, of counsel, instructed by The Government Legal Department
Ahmed and Others (deprivation of citizenship)
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(i) While the two fold duties enshrined in section 55 of the Borders, Citizenship and Immigration Act 2009 are imposed on the Secretary of State, the onus of making representations and providing relevant evidence relating to a child's best interests rests on the appropriate parental figure.
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(ii) A failure to discharge this onus may well defeat any argument that there was a proactive duty of enquiry on the Secretary of State in a given context.
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(iii) In deprivation of citizenship cases, section 55 issues arise at two stages: at the deprivation of citizen stage and at the later stage of proposed removal or deportation.
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(iv) As the subject of national citizenship lies exclusively within the competence of Member States, EU law has no role to play in deprivation cases: G1 v SSHD [2012] EWCA Civ 867applied.
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(v) The Secretary of State's deprivation of citizenship policy confers a wide margin of appreciation on the decision maker.
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(vi) Part 5A of the Nationality, Immigration and Asylum Act 2002 does not apply to deprivation of citizenship decisions as such decisions are not made under the Immigration Acts.
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(vii) There would be a considerable saving of human and financial resources with consequential reduced delay if deprivation of citizenship and deportation or removal decisions were to be made jointly.
This is the decision of the panel to which both members have contributed.
All of the Appellants are of Pakistani nationality and have acquired British citizenship by naturalisation. Their conjoined appeals have their origins in a series of decisions made by the Secretary of State for the Home Department (the “ Secretary of State”) proposing to deprive the Appellants of their British citizenship under section 40(2) of the British Nationality Act 1981. The First-tier Tribunal (the “ FtT”) dismissed the Appellants' ensuing appeals. The Appellants appeal to the Upper Tribunal pursuant to my order granting permission to do so dated 05 August 2016.
As recorded in the permission order, these are four inter-related appeals in a case of some notoriety arising out of certain highly publicised prosecutions and ensuing convictions. The Appellants were convicted of various inter-related offences: the trafficking of children for sexual exploitation, rape, conspiracy to engage in sexual activity with children and sexual coercion. Their sentences ranged from 6 to 19 years imprisonment. The sentencing judge highlighted the scale and gravity of the offending, the protracted period involved (2008 – 2010), the ages of the victims – they were young teenagers – and the factors of callous, vicious and violent rape, humiliation and financial gain.
On 9 May 2012 HHJ Clifton sentenced the four Appellants, together with five others, following their conviction by a jury of very grave sexual offences, undertaken in the context of a conspiracy to commit them, between the spring of 2008 and the spring of 2010. That criminal behaviour can be summarised briefly as the grooming and sexual exploitation of a number of girls in their early teens, in the area of Rochdale and Oldham. As the sentencing Judge observed, this summary risks hiding the appalling character of their behaviour. The Appellants were all many years older than their victims. In some cases, girls were raped callously and viciously and in others they were forced to have sex with paying customers. The sentencing Judge noted that some of the Appellants acted to satiate their lust, others did so for financial gain and some had both motivations. All were condemned as having treated their victims as worthless and undeserving of basic respect and dignity. Their offences were shocking, brutal and repulsive.
Individually the Appellants were punished as follows:
There were other convicted offenders who are not involved in these appeals.
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(i) Shabir Ahmed was convicted of the rape of a girl of 15 on several occasions and of giving her to a young man that he referred to as his nephew who also raped her. There was a second rape conviction. He was described as the leader of the conspiracy. For the rape convictions he was sentenced to 19 and 22 years' imprisonment respectively. For the convictions for trafficking, conspiracy and sexual assault he was sentenced to two further terms of eight years and one of six months. All sentences were ordered to be served concurrently. He remains incarcerated.
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(ii) Adil Khan was convicted of conspiracy to engage in sexual activity with a child by penetrative sex, and of trafficking for sexual exploitation two 15 year old girls. He had sex with them both, and used violence towards one whom he coerced. For the conviction for trafficking he was sentenced to eight years' imprisonment with a further term of eight years to be served concurrently for the conspiracy conviction. He has been released on licence.
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(iii) Qari Abdul Rauf was convicted of conspiracy to engage in sexual activity with a child by penetrative sex and of trafficking for sexual exploitation a 15 year old girl. He had sex with that girl in his taxi, and he and others also had sex with her at a flat in Rochdale. For the convictions for trafficking he was sentenced to six years' imprisonment with a further term of six years to be served concurrently for the conspiracy conviction. He has been released on licence.
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(iv) Abdul Aziz was convicted of conspiracy to engage in sexual activity with a child by penetrative sex and of trafficking for sexual exploitation a 15 year old girl. He had taken over the running of the conspiracy from Shabir Ahmed and whilst he was not convicted of having sexual intercourse with a child himself, his further convictions were coercing girls into having sex with men who paid him, including the coercion of one girl into having anal sex when she was menstruating. For the trafficking convictions he was sentenced to nine years' imprisonment with a further term of nine years to be served concurrently for the conspiracy conviction. He has been released on licence.
Section 40 of the British Nationality Act (the “1981 Act”), under the rubric of “Deprivation of Citizenship”, provides:
“(1) In this section a reference to a person's “citizenship status” is a reference to his status as—
(a) a British citizen,
(b) a British overseas territories citizen,
(c) a British Overseas citizen,
(d) a British National (Overseas),
(e) a British protected person, or
(f) a British subject.
(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.
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(4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.
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(4A) But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if—
(a) the citizenship status results from the person's naturalisation,
(b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and
(c) the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.
(5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying –
(a) that the Secretary of State has decided to make an order,
(b) the reasons for the order, and
(c) the person's right of appeal under section 40A (1) or under section 2B of the Special Immigration Appeals Commission Act 1997.
(6) Where a person acquired a citizenship status by the operation of a law which applied to him because of his registration or naturalisation under an enactment having effect before commencement, the Secretary of State may by order deprive the person of the citizenship status if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—
(a) fraud,
(b) false representation, or
(c) concealment of a material fact.”
The Secretary of State's decisions were all made under section 40(2) and (5).
The Appellants' convictions were the sole impetus for the Secretary of State's decisions made under section 40. Decisions to that end were initially made on 31 July 2015. The Appellants exercised their right of appeal under section 40A of the 1981 Act. Unusually, in the events which occurred, the Secretary of State's decision- making process and the process of the FtT then merged to a certain extent. As this sounds on at least one of the grounds of appeal, it is necessary to outline what transpired between 31 July 2015 and the ultimate disposal of the appeals by the FtT. In short:
The FtT...
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