Amjad Ali Chaudhry v Secretary of State for the Home Department

Hearing date: 3 December 2024

Approved Judgment

This judgment was handed down remotely at 2pm on 17.1.25 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

This is an appeal about deprivation of citizenship. In particular this appeal raises the issue about the test to be applied by the First-tier Tribunal (Immigration and Asylum Chamber) (FTT) when hearing an appeal from a decision of the respondent Secretary of State for the Home Department, made pursuant to section 40(3) of the British Nationality Act 1981 (the BNA 1981), to deprive a person of British citizenship.

This appeal was heard by the same constitution of the Court of Appeal who heard the appeals of Daci v Secretary of State for the Home Department [2025] EWCA Civ 18 ( Daci) and Kolicaj v Secretary of State for the Home Department [2025] EWCA Civ 10 ( Kolicaj) in the weeks of 2 and 9 December 2024. Daci was another appeal following a decision of the Secretary of State made pursuant to section 40(3) of the BNA 1981 and the parties in this appeal and in Daci helpfully produced a joint bundle of authorities and co-ordinated submissions on matters of principle. Kolicaj was an appeal following a decision of the Secretary of State made pursuant to section 40(2) of the BNA 1981.

The issue about the test to be applied by the FTT when hearing an appeal from a decision of the Secretary of State made pursuant to section 40(3) of the BNA 1981 involves consideration of the judgment of the Supreme Court in R (Begum) v Special Immigration Appeals Commission [2021] AC 765 ( Begum (No.1)) and the judgments of Upper Tribunal (Immigration and Asylum Chamber) (UT) in Ciceri (deprivation of citizenship appeals: principles) v Secretary of State for the Home Department [2021] UKUT 238 (IAC); [2021] Imm AR 1909 ( Ciceri) and Chimi v Secretary of State for the Home Department (deprivation appeals; scope and evidence) [2023] UKUT 115 (IAC); [2023] Imm AR 1071 ( Chimi). It is apparent that the Secretary of State's case on the appropriate test to be applied by the FTT on an appeal from a decision made pursuant to section 40(3) of the BNA 1981 has changed during the course of the proceedings below and on the appeal to this court.

This appeal is from the decision of the Upper Tribunal (Immigration and Asylum Chamber) (UT) dated 2 November 2023 restoring the decision of the Secretary of State dated 23 December 2021 depriving the appellant Mr Amjad Ali Chaudhry, who is a national of Pakistan, of his British citizenship on the basis that he had fraudulently obtained a genuine British passport using the identifying particulars of a deceased child. The FTT had, by a decision dated 9 November 2022, allowed Mr Chaudhry's appeal from a decision of the Secretary of State. The decision of the FTT had been set aside by the UT in a decision dated 17 September 2023.

Factual background

Mr Chaudhry was born in 1963 in Pakistan. He arrived in the UK in 1990 on a single visit entry clearance for a six-month period on a Pakistani passport. Once in the UK, Mr Chaudhry claimed asylum using his name. That claim was unsuccessful, and an appeal was subsequently refused by the FTT.

On 12 August 2000 Mr Chaudhry was granted indefinite leave to remain in the UK. He then applied for naturalisation as a British citizen on two further occasions. These applications were unsuccessful because he had not lived in the UK for the required 5 year period without being in breach of immigration law.

Mr Chaudhry was naturalised as a British citizen on 9 December 2005 following a successful third application. This application was again made in his name. On the relevant form Mr Chaudhry had ticked “No” to the question: “Have you engaged in any other activities which might be relevant to the question of whether you are a person of good character?”

Information subsequently came to light which the Secretary of State alleges shows that in November 1998, at a time when his immigration status was uncertain, Mr Chaudhry had fraudulently obtained a British passport using details of a deceased child, Atiq Ur Rehman Akram, who had been born on 24 May 1967. The emergency contact details provided in the passport were of Mr Chaudhry's then (and now former) partner. The Secretary of State alleged that the photograph on the passport was a photograph of Mr Chaudhry, and that the handwriting was strikingly similar to Mr Chaudhry's writing on the forms he had submitted. Mr Chaudhry denied that he had any involvement with the obtaining of that false passport.

The passport in the name of Akram had been used to attempt to obtain a driving licence on 20 August 2010. The address given on the driving licence application was Mr Chaudhry's address.

Mr Chaudhry was interviewed under caution by HM Passport Office in July 2017. In interview Mr Chaudhry was asked about the name on the passport, and he had said that the name was that of his cousin, who had lived with him in either 1994 or 1995, and had left the UK a long time ago. When shown the passport photograph Mr Chaudhry confirmed that it showed his cousin, and that the emergency contact details on the passport were those of his former spouse. Later in the interview he suggested that “I know my cousin pays some money to get the passport that's it and I haven't seen the passport before”. Mr Chaudhry denied any involvement with the use of the passport to obtain a driving licence, and was unable to explain why his address had been used on the driving licence application. In later representations and evidence Mr Chaudhry suggested that his cousin left the UK in 2001 and is now deceased.

The Secretary of State then made a decision, by letter dated 23 December 2021, to make an order to deprive Mr Chaudhry of British citizenship. The Secretary of State said that Mr Chaudhry's answer of “no” to the question on the application form “have you engaged in any other activities which might indicate that you may not be considered a person of good character” meant that he had obtained his British citizenship by false representation, because he should have declared that he had obtained a British passport by using the particulars of a deceased child.

Mr Chaudhry's appeal to the FTT

Mr Chaudhry appealed to the FTT against the Secretary of State's decision to deprive him of British citizenship. Following a hearing on 9 November 2022 at which Mr Chaudhry gave evidence, the FTT allowed the appeal, in a decision on 4 January 2023. The FTT held that the correct approach to take was a public law review on Wednesbury principles as to whether the Secretary of State's discretionary decision to deprive an individual of British citizenship was exercised correctly. The FTT found that there was public law error: first, in the reliance on the view of the interviewing officer as to photographic similarity; secondly, in the reliance on the view of the interviewing officer's view of the handwriting; and finally in the failure to take account that Mr Chaudhry had used his true identity when making his applications to the Home Office.

In the course of its review of the evidence, the FTT found that some of Mr Chaudhry's evidence was not credible, but it was on the Secretary of State to discharge the burden of proof as to the allegations against Mr Chaudhry and the Respondent did not do so. The Secretary of State had failed to prove that it was more likely than not that it was Mr Chaudhry that applied for the British passport or the driving licence, and the appeal was therefore allowed. This meant that issues involving section 6 of the Human Rights Act 1998 (the 1998 Act) in the light of Mr Chaudhry's rights under article 8 of the European Convention on Human Rights (ECHR) did not arise.

The Secretary of State's appeal to the UT

The Secretary of State appealed to the UT from the FTT's decision on the basis that the FTT had wrongly taken for itself the decision which was for the Secretary of State to make, and also had made findings of fact which were unsustainable or irrational in paragraphs 63 and 68 of the FTT decision, when attaching significance to the finding that Mr Chaudhry had never used the driving licence or the passport to obtain British nationality.

The UT in this appeal, in its decision dated 17 September 2023, applied the approach to appeals to the FTT set out in Ciceri, and found that the FTT had failed to apply that approach when referring to the burden of proof being on the Secretary of State to prove to the FTT the fraud, false representation or concealment of material fact. The UT therefore set aside the decision of the FTT. The UT later remade the decision, applying the approach to appeals from the Secretary of State's decision made pursuant to section 40(2) of the BNA 1981, explained in Chimi, being a public law review of the Secretary of State's decision. The UT held that the Secretary of State's decision to find that Mr Chaudhry's citizenship was obtained by means of false representation was lawful. There was no infringement of Mr Chaudhry's rights under article 8 of the ECHR and so the decision was lawful under section 6...