Chimi (Deprivation Appeals; Scope and Evidence) Cameroon

The Claimant was bom in Cameroon in 1977. She moved to France in 2000 and applied for French nationality in 2006. She submitted her Cameroonian birth certificate to the French authorities and was issued with a copy of a French birth certificate. She then received a French passport. In 2007 she moved to the United Kingdom and met her husband. The couple had two children. In 2016 she was naturalised as a British citizen. In 2019 she applied to renew her French passport. The French authorities decided that the original passport had been obtained fraudulently as the birth certificate provided when applying for the passport initially had been false. In the light of that information, the Secretary of State for the Home Department concluded that the Claimant's EEA residence permit and subsequent British citizenship had been obtained by fraud. Accordingly, in 2020, the Secretary of State issued a notice of deprivation of citizenship under section 40(3) of the British Nationality Act 1981 (‘the 1981 Act’). She also considered that the impact of the deprivation decision on the Claimant's Article 8 ECHR rights was proportionate and would not have a significant effect on the best interests of the children.

In January 2021, the First-tier Tribunal (‘FtT’) allowed the Claimant's appeal against the deprivation decision. The Secretary of State appealed. The Upper Tribunal (‘UT’) set aside the FtT's decision and decided to re-make the decision. The UT considered the nature of the appeal jurisdiction of the FtT, and the UT when called upon to re-make a decision, in an appeal from a deprivation decision made pursuant to sections 40(2) or 40(3) of the 1981 Act. In particular, it considered the Secretary of State's conclusion as to the condition precedent for deprivation, the Secretary of State's discretionary decision and the admissibility of evidence in the error of law jurisdiction.

Held, dismissing the appeal:

(1) The conditions precedent under sections 40(2) and 40(3) of the 1981 Act were, respectively, that the Secretary of State had to be satisfied that deprivation was conducive to the public good or that naturalisation had been obtained by means of fraud, false representation or concealment of a material fact. The Tribunal must review either conclusion using conventional public law tools, rather than by subjecting it to a full merits reconsideration. When considering an appeal under section 40A(1) of the 1981 Act, the Tribunal had to consider whether the conclusion that the condition precedent had been satisfied had been vitiated by an error of law: R (on the application of Begum) v Special Immigration Appeals Commission[2021] UKSC 7 and Ciceri (deprivation of citizenship appeals: principles)[2021] UKUT 238 (IAC) applied. In relation to the application of that approach in practice, Begum did not provide an exhaustive list of the potential types of public law error which it was open to the Tribunal to conclude had affected the decision on the condition precedent under consideration. Questions of fairness beyond procedural impropriety might be relevant, as might the jurisdiction arising from an error of established fact, or a failure to undertake sufficient enquiries. A public law error in the decision under challenge would be material unless it was established that the decision would inevitably have been the same without the error (paras 49 – 56).

(2) Deprivation was not the automatic consequence of deception in the acquisition of nationality, or even of the Secretary of State having concluded that deprivation was conducive to the public good. The Secretary of State might deprive the individual of his or her citizenship but she was not required by the 1981 Act to do so. It would only be necessary for the Tribunal to consider the discretion issue where it had resolved the condition precedent question in favour of the Secretary of State. If the Tribunal concluded that the Secretary of State's decision was vitiated by a material public law error, the appeal would be allowed and it would be for the Secretary of State to consider whether to make a fresh decision. The Tribunal had to consider whether the Secretary of State erred in law when deciding in the exercise of her discretion under section 40(2) or 40(3) of the 1981 Act to deprive the individual of his or her citizenship. It was not for the Tribunal to consider whether deprivation was the correct course on the merits: Begum applied. The Tribunal should consider that question before it assessed any submissions made by a claimant in reliance on Article 8 ECHR. The analysis of the decision under section 40(2) or 40(3) was confined to a public law review of that decision, whereas the Article 8 ECHR analysis must be on a broader canvas (paras 57 – 60).

(3) Admissible evidence in the error of law jurisdiction was not limited to that before the Secretary of State at the time when the decision was made. Any evidence must, however, be strictly relevant and admissible only because it directly pertained to an error of law which the claimant had specifically pleaded. The principles were identical to those which applied in judicial review. The question as to whether the lawfully determined deprivation decision under section 40(2) or 40(3) of the 1981 Act would give rise to a violation of the claimant's rights under the ECHR was one for the Tribunal to determine for itself, and in respect of which evidence would be admissible which might be different from that which was before the Secretary of State at the time of making the decision (paras 61 – 74).

(4) A Tribunal determining an appeal against a decision taken by the Secretary of State under section 40(2) or 40(3) of the 1981 Act should consider the following questions. Did the Secretary of State materially err in law when she decided that the condition precedent in those sections was satisfied? If so, the appeal would be allowed. If not, did the Secretary of State materially err in law when she decided to exercise her discretion to deprive the claimant of British citizenship? If so, the appeal would be allowed. If not, weighing the lawfully determined deprivation decision against the reasonably foreseeable consequences for the claimant, was the decision unlawful under section 6 of the Human Rights Act 1998? If so, the appeal would be allowed on human rights grounds. If not, the appeal would be dismissed. In considering the first two questions, the Tribunal must only consider evidence which was before the Secretary of State or which was otherwise relevant to establishing a pleaded error of law in the decision under challenge. Insofar as Berdica (Deprivation of citizenship: consideration)[2022] UKUT 276 (IAC) suggested otherwise, it should not be followed. In considering the third question, the Tribunal might consider evidence which was not before the Secretary of State but, in doing so, it might not revisit the conclusions it reached in respect of the first two questions (paras 67 and 75).

(5) The Secretary of State had not erred in deciding that the condition precedent under section 40(3) of the 1981 Act had been met. The French passport had been obtained by fraud. Thus, it was entirely reasonable for her to conclude that the subsequent decisions leading up to and including the grant of British citizenship were decisions which were infected by the fraud that had originally been used to obtain the French passport. Moreover, the Secretary of State had not separately erred in law in her consideration of the discretionary element of section 40(3). Finally, the factors in favour of the Claimant's family and private life did not outweigh the need to preserve a robust system of national law in relation to citizenship. Accordingly, the decision to deprive the Claimant of her British citizenship was not disproportionate under Article 8 ECHR (paras 76 – 90).