Arusha and Demushi (Deprivation of Citizenship - Delay)
| Jurisdiction | UK Non-devolved |
| Judge | Waumsley,Waumsley UTJ,Latter UTJ,Latter |
| Judgment Date | 13 February 2012 |
| Neutral Citation | [2012] UKUT 80 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 13 February 2012 |
[2012] UKUT 80 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Upper Tribunal Judge Latter
Upper Tribunal Judge Waumsley
and
and
For the First Appellant and Second Respondent: Mr M Barnes, instructed by the Treasury Solicitor
For the First Respondent and Second Appellant: Mr C Jacobs instructed by Nova Legal Services
Arusha and Demushi (deprivation of citizenship — delay)
(i) The following rulings made by the First-tier Tribunal on the nature and scope of an appeal against the deprival of citizenship under s.40 of the British Nationality Act 1981 were not challenged by either party before the Upper Tribunal:
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(a) The Tribunal has a wide-ranging power to consider, by way of appeal not a review, what the decision in an appellant's case should have been. The Tribunal has to ask itself ‘does the evidence in the case establish that citizenship was obtained by fraud?’ If it does then it has to ask ‘do the other circumstances of the case point to discretionary deprival?’
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(b) In terms of the proof of fraud, the Tribunal will consider any evidence, whether or not available to the respondent at the time he made his decision, which is relevant to the determination of that question.
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(c) It is for the respondent to prove that the appellant's conduct comes within the scope of s.40 of the 1981 Act.
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(d) The appellant can raise general human rights grounds but they must be framed to deal with the breach alleged to be caused by the decision to deprive the appellant of his nationality, and giving effect to that decision, and not framed to deal with the fiction that the appellant would be removed.
(ii) To establish that a delay in the promulgation of a decision has led to an error of law it has to be shown that the decision was not safe and therefore unlawful. There must be a nexus between the delay and the safety of the decision: see Secretary of State v RK (Algeria) [2007] EWCA Civ 868.
There are two appeals before the Tribunal. The first is by the Secretary of State against the determination of the First-tier Tribunal (Senior Immigration Judge Perkins and Immigration Judge Kopieczek) allowing Altin Arusha's appeal against the decision made on 2 February 2009 depriving him of his British citizenship on the basis that it was obtained by fraud and the second by Ugeza Demushi against the decision of the Tribunal dismissing her appeal against the decision of the Entry Clearance Officer, Tirana to refuse her entry clearance as Mr Arusha's fiancée. In this determination we shall refer to the parties as they were before the First-tier Tribunal, Altin Arusha as the first appellant, Ugeza Demushi the second appellant, the Secretary of State the first respondent and the Entry Clearance Officer Tirana the second respondent.
The background to this appeal can briefly be summarised as follows. The first appellant was born on 22 June 1984. He arrived in the UK on 17 October 2000 and made an application for asylum relying on his claim that he was a Kosovan national born in Presevo, Kosovo. His application was refused and following a hearing on 21 March 2002 his appeal was dismissed by an Adjudicator on asylum grounds but allowed on human rights grounds. He was subsequently granted exceptional leave to remain and on 1 November 2006, indefinite leave to remain. He applied for and was granted British citizenship by naturalisation on 10 April 2008.
On 28 July 2008 the second appellant, an Albanian national born on 9 October 1985, applied for entry clearance as the first appellant's fiancée. The history given was that they had met in Albania in April 2007 when the first appellant was on holiday and become engaged on 1 August 2007 following a further visit by him. Inquiries were made as a result of this application which led the respondent to believe that the first appellant had not been born in Kosovo but in Albania and was an Albanian citizen.
On 2 November 2009 the first appellant was notified of the first respondent's decision to deprive him of his British citizenship under s.40 of the British Nationality Act 1981 because it had been obtained fraudulently. This was on the basis of information received from the Ministry of the Interior in Albania that he was named in the Albanian National Civil Register and it was therefore concluded that he was in fact a citizen of Albania. When he had claimed political asylum he had said that he was from Kosovo and it had been on this basis that his appeal had been allowed on human rights grounds leading to the later grant of indefinite leave to remain.
On 6 November 2009 the second appellant's application was refused as the second respondent was not satisfied that their relationship was genuine and, in the light of the decision to deprive the first appellant of his citizenship, that she was engaged to a person who could properly be regarded as present and settled in the UK.
Both appellants appealed against these decisions to the First-tier Tribunal and their appeals were heard together with the agreement of the parties on 26 and 27 April 2010.
At the hearing before the First-tier Tribunal there was a dispute between the parties on where the burden of proof lay in an appeal involving the deprival of citizenship and on whether the first appellant was entitled to raise human rights arguments in support of his appeal. The Tribunal also considered the general scope of the appeal in light of the fact that the provisions of s.84 and s.86 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) do not apply to appeals under s.40. There is no challenge before us to the decisions of the Tribunal on these issues.
The Tribunal heard oral evidence from the first appellant and had before it documentary evidence comprising firstly, the respondents' bundle of 288 pages with the following additional documents, a letter to the first appellant from the Home Office dated 18 March 2008, a document verification report, a letter from the Ministry of Interior in Albania dated 9 September 2009 with a translation and three pages of supporting documents and secondly the appellants' three bundles of 92, 123 and 202 pages respectively, a further bundle with tabs 1 to 20 and, finally, a BAE ticket dated 22 May 2007.
The Tribunal set out its findings and conclusions relating to the first appellant at paras 103–140 of its determination. It was not satisfied that the first respondent had discharged the onus of proving that he had obtained his citizenship by fraud. The findings in relation to the second appellant are set out in paras 141–154. It found that the second appellant had not established that she was seeking leave to enter the UK for the purpose of marriage or that the parties intended to live permanently with the other as spouses after any marriage. On this basis the first appellant's appeal was allowed and the second appellant's appeal dismissed. The written determination of the First-tier Tribunal was promulgated on 25 March 2011.
The provisions relating to deprivation of citizenship are set out in ss.40, 40A and 41 of the British Nationality Act 1981. It is provided by s.40(3) that:
“The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation 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.
A right of appeal is given by s.40A(1) as follows:
“A person who has been given notice under s.40(5) of a decision to make an order in respect of him under s.40 may appeal against the decision to [the First-tier Tribunal].”
As the First-tier Tribunal pointed out neither s.84 nor s.86 of the 2002 Act applies to appeals under s.40A. The right of appeal in s.40A is not an appeal under s.82(2) against an immigration decision and the grounds of appeal are not limited to or enhanced by those identified under s.84 and therefore the provisions of s.84(1)f giving the Tribunal power to allow an appeal on the ground that a discretion contained in the immigration rules should have been exercised differently do not apply. The Tribunal directed itself on the nature and scope of the appeal as follows:
“13. In our judgment the absence of prescribed grounds can only mean that the Tribunal is to have a wide ranging power to consider, by way of appeal not a review, what the decision in an appellant's case should have been. The Tribunal has to ask itself ‘does the evidence in the case establish that citizenship was obtained by fraud?’ If it does then it has to ask ‘do the other circumstances of the case point to discretionary deprival?’.
14. As this is an appeal not a review, the Tribunal will be concerned with the facts as it finds them and not with the Secretary of State's view of them. In terms of the proof of fraud, the Tribunal will consider any evidence, whether or not available to the Secretary of State at the time he made his decision, which is relevant to the determination of that question.”
At the hearing it was argued by each party that the burden of proof lay on the other. The Tribunal resolved this issue as follows:
“17. For all these reasons we are satisfied that it is for the first respondent to prove that the appellant's conduct comes within the scope of s.40 the [1981] Act.
18. It is for the second appellant to show that she satisfied the requirements of the Immigration Rules.
19. Human rights issues aside it is, in both cases, sufficient for the party bearing the burden of proof to establish a fact on the...
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