Deliallisi (British citizen: deprivation appeal: Scope)
| Jurisdiction | UK Non-devolved |
| Judge | Peter Lane,Kebede |
| Judgment Date | 09 July 2013 |
| Neutral Citation | [2013] UKUT 439 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 09 July 2013 |
[2013] UKUT 439 (IAC)
UPPER TRIBUNAL JUDGE Peter Lane
UPPER TRIBUNAL JUDGE Kebede
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Deliallisi (British citizen: deprivation appeal: Scope)
(1) An appeal under section 40A of the British Nationality Act 1981 against a decision to deprive a person of British citizenship requires the Tribunal to consider whether the Secretary of State's discretionary decision to deprive should be exercised differently. This will involve (but not be limited to) ECHR Article 8 issues, as well as the question whether deprivation would be a disproportionate interference with a person's EU rights.
(2) Although, unlike section 84(1)(g) of the Nationality, Immigration and Asylum Act 2002, section 40A of the 1981 Act does not involve any statutory hypothesis that the appellant will be removed from the United Kingdom in consequence of the deprivation decision, the Tribunal is required to determine the reasonably foreseeable consequences of deprivation, which may, depending on the facts, include removal.
(3) A person who, immediately before becoming a British citizen, had indefinite leave to remain in the United Kingdom, does not automatically become entitled to such leave, upon being deprived of such citizenship.
For the Appellant: Ms S Naik, Counsel, instructed by Duncan Lewis Solicitors
For the Respondent: Mr P Deller, a Senior Home Office Presenting Officer
At the end of the last Millennium, Kosovo was part of the territory of the state of Serbia, which itself had emerged as a separate entity, following the break-up of Yugoslavia. The majority of the population of Kosovo were and are ethnic Albanians. Many were in favour of achieving separation from Serbia. That led to an armed Serbian response and, in turn, large-scale conflict. In 1999, a NATO military force intervened, in a bid to restore order.
In 2000, the situation in Kosovo was still sufficiently grave for many of its inhabitants to seek protection in other countries, including the United Kingdom. In August 2000, the appellant, then aged 23, arrived in this country. Taking advantage of the crisis in Kosovo, he told the United Kingdom authorities that he was Kosovan. In truth, he was from Albania. That was where he had lived with his parents, although he told the respondent that they too were Kosovan.
On this false basis, the appellant in 2002 obtained refugee status and indefinite leave to remain in the United Kingdom. In 2005, he applied to be naturalised as a British citizen. On 15 May 2006 he was issued with a certificate of naturalisation. In his citizenship application, the appellant maintained that he was from Mitrovica in Kosovo.
In February 2007, the appellant's parents applied for entry clearance to the United Kingdom, as visitors. Their application, made in Tirana, indicated that the appellant was born in Durres in Albania on 17 July 1977 (not Kosovo, on 17 July 1975, as the appellant had claimed).
In response to a letter from the respondent, informing the appellant that she was considering depriving him of British citizenship, the appellant made a statement dated 11 August 2008, in which he admitted he was born in Durres, Albania on 17 July 1977. He said he had left Albania for a better life as the situation in that country was unstable and he was frightened of criminality there. The agent who had brought him to the United Kingdom instructed the appellant to tell the authorities that he was from Kosovo, since if he did so he would be granted asylum; were he to tell the truth, the appellant was told that he would be immediately returned.
In 2005, the appellant's fiancée had arrived from Albania, which was also her home, with entry clearance to join the appellant. They subsequently married and a son was born to them in 2007. A second son was born in 2010. The wife's initial application for naturalisation as a British citizen was refused by the respondent, who considered that she had used information concerning her husband, which she knew to be false. She was banned from making any further application for two years. That was in 2009. When she re-applied in 2011, her application was successful.
On 13 October 2009, the respondent gave the appellant notice of a decision to deprive him of his British citizenship under section 40 of the British Nationality Act 1981. The appellant was informed in the same document that he could appeal to the Asylum and Immigration Tribunal against that decision, pursuant to section 40A of the 1981 Act.
The present version of section 40 of the British Nationality Act 1981 was substituted for the original enactment by section 4 of the Nationality, Immigration and Asylum Act 2002. Section 40(2), however, was itself substituted by section 56 of the Immigration, Asylum and Nationality Act 2006. Section 40 reads as follows:-
“ 40. Deprivation of citizenship
(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.
(3) 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.
(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.
(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 present method of challenging a decision under section 40 is by way of appeal. Leaving aside appeals which lie to the Special Immigration Appeals Commission, relevant provisions are to be found in section 40A of the 1981 Act:-
“ 40A. Deprivation of citizenship: appeal
(1) A person who is given notice under section 40(5) of a decision to make an order in respect of him under section 40 may appeal against the decision to the First-tier Tribunal;
(2) ….
(3) The following provisions of the Nationality, Immigration and Asylum Act 2002 shall apply in relation to an appeal under this section as they apply in relation to an appeal under section 82, 83 or 83A of that Act –
(b) ….
(c) section 106 (rules),
(d) section 107 (practice directions) and
(e) section 108 (forged document: proceedings in private).
(6) ….
(7) ….
(8) ….”.
By the time the appellant's appeal came to be considered, the Asylum and Immigration Tribunal had been replaced by the Immigration and Asylum Chamber of the First-tier Tribunal. On 21 October 2011, Designated Immigration Judge Woodcraft and Immigration Judge Pullig made a ruling in respect of the appellant and five other appellants, in respect of whom the respondent had decided to make deprivation orders on the basis that they too had obtained British citizenship by making false claims. The ruling dealt with a number of matters, of which the following are relevant to the present proceedings.
At [19] to [23] of the ruling, the First-tier Tribunal decided that the scope of appeals under section 40A was as follows:-
“19. Section 40A(1) does not define the scope of the appeals. As we have said, a decision is not an ‘immigration decision’ under Section 82 of the 2002 Act so the grounds of appeal set out in Section 84 of that Act do not apply, in particular Section 84(1)(e) – that the decision is not in accordance with the law, and (f) – that the person taking the decision should have exercised differently a discretion conferred by the Immigration Rules.
20. Thus, altogether the power of the respondent to make the decision is simply that – the respondent ‘may’ do so – the Tribunal has no power to exercise discretion differently as such a decision is not an ‘immigration decision’.
21. Subject to what we say below with regard to human rights, we find that the scope of the appeal simply on the basis of the wording of Section 40A(1) is to examine the facts on which the respondent made the decision, examine the evidence and determine whether the basis upon which the decision was made is made out.
22. The essential fact of falsely asserting being Kosovan is not disputed by any of the appellants. It is in fact admitted by each of them. If this appeal were limited in scope as we have indicated then each one would fall to be dismissed for that reason.
23. That would be the case even if the respondent had not followed her own policy in the Nationality Instructions (Chapter 55) as a challenge to such would be upon...
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