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Ciceri (Deprivation of Citizenship Appeals: Principles)

Immigration Appeal Reports Cited authorities 32 Cited in 85 Precedent Map Related
Vincent
JurisdictionUK Non-devolved
JudgeMr CMG Ockelton,Lane J
Judgment Date08 September 2021
Neutral Citation[2021] UKUT 238 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Ciceri (Deprivation of Citizenship Appeals: Principles)

[2021] UKUT 238 (IAC)

Lane J (President) and Mr CMG Ockelton (Vice President)

UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

Human rights — Article 8 of the ECHR — family life — proportionality — public interest — immigration — citizenship — deprivation — use of false identity — section 40(2) & (3) of the British Nationality Act 1981 — effect of Secretary of State's delayed decision making — legal principles regarding citizenship appeals

The Claimant, arrived in the United Kingdom in 1996, claiming to come from Kosovo, using a false name. In May 1999, he was granted refugee status based on the false details. He became a British Citizen in November 2003, using the false name and Kosovan identity. In 2005, he returned to Albania in order to marry an Albanian citizen who then applied for entry clearance to join the Claimant in the United Kingdom. In November 2005, the Claimant's wife was interviewed at the British Embassy in Tirana. She was subsequently given entry clearance to join the Claimant, who was still known by his false name. In 2007, the Claimant's wife was granted indefinite leave to remain. In support of his wife's application, the Claimant submitted his Albanian birth certificate, marriage certificate and Albanian family certificate, showing that he was an Albanian national. In July 2008, the Claimant changed his name by deed poll, from his false name to his real name. A passport was re-issued in his real name, though his place of birth was still recorded as Pristina, Kosovo.

In October 2008, the Claimant sponsored the entry clearance of his mother to the United Kingdom, using his British passport, with the place of birth recorded as Pristina, Kosovo. His mother, however, provided evidence in the form of an Albanian family certificate which showed the Claimant was born in Albania. At that point, the British Embassy in Tirana alerted the Secretary of State for the Home Department to the problematic state of affairs. In 2009, the Claimant's wife became a British citizen. The previous year, she had borne the Claimant a son, who was also a British citizen.

In March 2013, the Secretary of State issued the Claimant with a “nullity decision” on the grounds that he had falsified elements of his identity when he applied for British citizenship and therefore, based on the law at the time, the grant of citizenship was of no effect. In R (on the application of Hysaj and Others) v Secretary of State for the Home Department[2017] UKSC 82, the Supreme Court held that the scope of the “nullity” principle was narrower than the Secretary of State considered it to be. Accordingly, in February 2018, the Secretary of State notified the Claimant that she was considering depriving him of his British citizenship as a result of fraud, false representation, or concealment of a material fact. In September 2018, the Secretary of State deprived the Claimant of his British citizenship.

The Claimant appealed under section 40A(1) of the British Nationality Act 1981 (“the 1981 Act”) against the deprivation decision, pursuant to section 40(3) of the 1981 Act. The First-tier Tribunal (“FtT”) dismissed the Claimant's appeal in July 2019. Permission to appeal to the Upper Tribunal (“UT”) was refused by the FtT and by the UT. The UT's refusal of permission was, however, quashed, following a judicial review in the High Court. Permission to appeal to the Upper Tribunal was granted by the Vice President in March 2021.

Before the UT, the Claimant submitted that the Secretary of State had failed to act on the Claimant's fraud for almost eight years after first being put on notice of it in 2005, as a result of the entry clearance application of the Claimant's wife. That delay was said to reduce the public interest in deprivation, when considering if the decision to deprive would be a disproportionate interference with Article 8 ECHR. Had the FtT Judge approached the matter in that way, the Claimant's appeal could have been allowed on Article 8 grounds.

Held, dismissing the appeal:

(1) Following R (on the application of KV) v. Secretary of State for the Home Department[2018] EWCA Civ 2483, Aziz and Others v Secretary of State for the Home Department[2018] EWCA Civ 1884, Hysaj (Deprivation of Citizenship: Delay)[2020] UKUT 128 (IAC), R (on the application of Begum) v Special Immigration Appeasl Commission[2021] UKSC 7 and Laci v Secretary of State for the Home Department[2021] EWCA Civ 769, the legal principles regarding appeals under section 40A of the 1981 Act against decisions to deprive a person of British citizenship were as follows. First, the Tribunal must establish whether the relevant condition precedent specified in section 40(2) or (3) of the 1981 Act existed for the exercise of the discretion whether to deprive the claimant of British citizenship. In a section 40(3) case, that required the Tribunal to establish whether citizenship was obtained by one or more of the means specified in that subsection. In answering the condition precedent question, the Tribunal must adopt the approach set out in paragraph 71 of the judgment in Begum, namely to consider whether the Secretary of State had made findings of fact which were unsupported by any evidence or were based on a view of the evidence that could not reasonably be held. Secondly, if the relevant condition precedent was established, the Tribunal must determine whether the rights of the claimant or any other relevant person under the ECHR were engaged. If they were, the Tribunal must decide for itself whether depriving the claimant of British citizenship constituted a violation of those rights, contrary to the obligation under section 6 of the Human Rights Act 1998 (“the 1998 Act”) not to act in a way that was incompatible with the ECHR. Thirdly, in so doing, the Tribunal must determine the reasonably foreseeable consequences of deprivation; but it would not usually be necessary or appropriate for the Tribunal to conduct a proleptic assessment of the likelihood of the claimant being lawfully removed from the United Kingdom. Any relevant assessment of proportionality was for the Tribunal to make, on the evidence before it, which might not be the same as the evidence considered by the Secretary of State (para 30).

(2) Fourthly, in determining proportionality, the Tribunal must pay due regard to the inherent weight that normally lay on the Secretary of State's side of the scales in the Article 8 balancing exercise, given the importance of maintaining the integrity of British nationality law in the face of attempts by individuals to subvert it by fraudulent conduct. Fifthly, any delay by the Secretary of State in making a decision under section 40(2) or (3) might be relevant to the question of whether that decision constituted a disproportionate interference with Article 8, applying the judgment of Lord Bingham in EB (Kosovo) v Secretary of State for the Home Department[2008] UKHL 41. Any period during which the Secretary of State adopted the (mistaken) stance that the grant of citizenship to the claimant was a nullity would, however, not normally be relevant in assessing the effects of delay by reference to the second and third of Lord Bingham's points in paragraphs 13 to 16 of EB (Kosovo). Sixthly, if deprivation did not amount to a breach of section 6 of the 1998 Act, the Tribunal might allow the appeal only if it concluded that the Secretary of State had acted in a way in which no reasonable Secretary of State could have acted; had taken into account some irrelevant matter; had disregarded something which should have been given weight; had been guilty of some procedural impropriety; or had not complied with section 40(4), which prevented the Secretary of State from making an order to deprive if she was satisfied that the order would make a person stateless. In reaching its conclusions under the sixth point, the Tribunal must have regard to the nature of the discretionary power in section 40(2) or (3) and the Secretary of State's responsibility for deciding whether deprivation of citizenship was conducive to the public good (para 30).

(3) Applying those principles, the FtT Judge must have concluded that the delay in the instant case was not such as to diminish the weight to be given to factors weighing in the Secretary of State's favour for the purposes of Article 8(2) of the ECHR. That was a perfectly legitimate approach. The FtT judge was entitled to place no significant weight, in favour of the Claimant, upon the period between November 2005, when the Claimant's wife was interviewed by the British Embassy in Tirana, and 2013, when the Claimant was issued with the nullity decision. There was no indication that the British Embassy drew the Secretary of State's attention to anything untoward arising from the entry clearance interview with the Claimant's wife. Although in 2007 the Claimant submitted his Albanian birth certificate, in support of his wife's application for indefinite leave to remain, he was still operating under his false name. Furthermore, when the Claimant was re-issued with his British passport in 2008, his place of birth was still recorded as Kosovo, even though he had by then reverted to his real name. In short, during that period, the true facts were still materially obscured by the Claimant. The position could be said to have changed only in October 2008, when the Claimant sponsored his mother's application for entry clearance, which led the British Embassy to alert the Secretary of State. At most, some four years and five months elapsed between that alert and the Secretary of State's decision in March 2013 to issue the Claimant with a nullity decision. The FtT Judge was undoubtedly entitled to find that any delay on the part of the Secretary of State in the instant case did not have the effect of diminishing the Secretary of State's reliance upon the public interest; or in increasing the weight to be...

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