Mohammed Said Sleiman v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Kopieczek |
| Judgment Date | 02 May 2017 |
| Neutral Citation | [2017] UKUT 367 (IAC) |
| Date | 02 May 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2017] UKUT 367 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Kopieczek
For the Appellant: Mr C Yeo, Counsel
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer
Sleiman (deprivation of citizenship; conduct)
In an appeal against a decision to deprive a person of a citizenship status, in assessing whether the appellant obtained registration or naturalisation “by means of” fraud, false representation, or concealment of a material fact, the impugned behaviour must be directly material to the decision to grant citizenship.
The appellant is a citizen of Lebanon, born on 5 May 1985. He claimed asylum in May 2004, using his correct name but with a date of birth of 9 March 1987. He was refused asylum but granted discretionary leave to remain (“DLR”), as an unaccompanied minor, until 8 March 2005.
Before the expiry of his DLR he made an application for further leave to remain. That application was outstanding for five years, according to the respondent's latest decision dated 1 December 2015, which also states that because the application was outstanding for that period he was granted indefinite leave to remain (“ILR”). That grant of ILR was on 4 May 2010, apparently under the ‘Legacy’ scheme. On 19 July 2011 he was granted British Citizenship.
Again, according to the respondent's decision of 1 December 2015, in 2013 the appellant travelled to Hong Kong where he was arrested on suspicion of money laundering and his British passport was surrendered. It is not necessary to recite further the circumstances surrounding those events. Suffice to say, according to the appellant's representatives at the time, the appellant then travelled to China and contacted the British embassy. He provided a copy of his Lebanese passport which had the different, and now claimed, date of birth of 1985. He obtained an emergency travel document and then came back to the UK.
It was during the course of those events that his correct, and the previous incorrect, date of birth was discovered, or as the appellant would say, volunteered by him.
The 1 December 2015 decision was a decision to deprive the appellant of his British Citizenship on the basis that it was obtained fraudulently, the appellant having relied on the incorrect date of birth at the time.
The appellant appealed against the decision and his appeal came before a First-tier Tribunal Judge (“the FtJ”) at a hearing on 23 September 2016, whereby the appeal was dismissed.
The appeal before the Upper Tribunal was originally listed to be heard on 23 March 2017 but was adjourned to allow for the appellant's representatives to amend the grounds of appeal to include reliance on a Home Office file note that referred to the appellant having given two dates of birth but stating that his age was irrelevant to the grant of ILR under the Legacy scheme. The further background to the appeal is best illustrated with reference to the FtJ's decision.
In terms of the applicable legal framework, the FtJ said that it was clear from the decision in Deliallisi (British Citizen: deprivation appeal: Scope) [2013] UKUT 439 (IAC) that the Tribunal must consider whether the discretion exercised by the respondent should have been exercised differently, including involving considerations relating to Article 8 of the ECHR. He stated that removal of the appellant is not an automatic consequence of deprivation of citizenship, but the reasonably foreseeable consequences of deprivation should be considered. He also stated that he took into account that even though the appellant previously had indefinite leave to remain, he would not automatically be entitled to that status again if his citizenship was revoked.
The FtJ also referred to the cases of Arusha and Demushi (deprivation of citizenship – delay) [2012] UKUT 80 (IAC) and Secretary of State for the Home Department v RK (Algeria) [2007] EWCA Civ 868, the latter decision dealing with the issue of delay in decision-making.
In his findings, he assessed the respondent's assertion that had the appellant not misled the respondent as to his age, there was likelihood that he would never have been granted British Citizenship. He noted at [34] that it was not in dispute but that the appellant provided a date of birth of 9 March 1987 and confirmed that date of birth at all material times. It was accepted by the parties that his correct date of birth is 5 May 1985.
He summarised the respondent's case as being that if the appellant had given his correct date of birth, that would have made him 22 months older and accordingly, he would not have been granted DLR in response to his asylum claim. He would have been subject to removal to Lebanon. The appellant had later re-confirmed his date of birth in his application for British Citizenship.
The FtJ found that the respondent was correct to conclude that if the appellant's real date of birth had been known when his asylum claim was refused, he would not have been granted DLR. That was because he was, in reality, not a child but an adult. The “clear reality” was that the appellant had been able to ‘upgrade’ his leave to ILR.
He further found that the appellant may or may not have been removed to Lebanon, but he would have been liable to removal to Lebanon as an adult who was a failed asylum seeker. The FtJ noted that it was not contended by either party that at the time of the refusal of asylum there was any policy in place whereby citizens of Lebanon were granted leave because of their nationality and the circumstances in Lebanon. He found that whether or not the appellant would have been removed was a matter of conjecture which was not relevant to his findings in that connection.
At [36] the FtJ referred to the appellant having said that he had had an intention to take action to correct his date of birth, but the reality was that he did not do so. He had had the opportunity to bring to the UK authorities' attention the fact of his incorrect date of birth at any time after he was initially granted status, but did not.
He said that he found it particularly significant and serious that in applying for British Citizenship the appellant took no action to correct the date of birth he had previously given, although at all stages he knew that he had given an incorrect date of birth. He noted section 1 of the application form for naturalisation, signed by the appellant and dated 28 April 2011, in which he once again stated his date of birth to be 9 March 1987. That incorrect date of birth, he said, perpetuated a significant incorrect detail in relation to the appellant.
The FtJ went on to conclude that in failing to bring to the respondent's attention the fact that he had previously given an incorrect date of birth, the appellant had continued to mislead the respondent. Having initially misrepresented his date of birth, which as an adult at the time he had no reason to do, it would appear that he had taken no action to correct the record when he was granted ILR. The key act of deception and fraud on the part of the appellant was when he made his initial claim. He did not accept that he picked that date of birth “at random”, particularly as to the year. He found that the appellant had deliberately sought to portray himself as a minor in the belief that that would have reduced the likelihood of his return to Lebanon if his asylum claim was unsuccessful.
At [38] he stated that he took into account the circumstances as they existed at the time of the hearing before him. He accepted that the appellant was in a relationship with a partner, from whom he heard evidence and whose evidence he found to be credible. He found that the appellant's partner is a British Citizen and they are a family unit.
He went on to state however; that there are no removal directions in place and accordingly it was not appropriate to consider Article 8 in terms of potential removal. He concluded that the foreseeable consequences of deprivation of citizenship would not make the decision disproportionate.
The FtJ referred at [39] to the respondent's Nationality Instructions (NI's) in particular at paragraph 55.7. He concluded that the false representations had had a direct bearing on the grant of citizenship, the appellant having portrayed himself as being younger than he was. He found that had the correct date of birth been provided on the citizenship application form the respondent would have been entitled to “take a view” on the decisions previously taken. He regarded it as “highly significant” that the appellant had been able to make his citizenship application because he had been obtained ILR. That status was a consequence, he said, of the original decision to grant the appellant DLR on the basis that at the date of the asylum decision he had been a minor.
The FtJ did not find therefore, that the respondent's discretion should have been exercised differently and there was no breach of the appellant's human rights.
The grounds of appeal in relation to the FtJ's decision, to summarise, contend that the appellant's deception was not material to the grant of ILR and therefore, the grant of citizenship. The appellant was granted ILR on the basis that his was a ‘Legacy’ case. The vast majority of migrants granted leave under the Legacy scheme are thought to have been without leave and to have been failed asylum seekers.
In addition, it is asserted that the FtJ erred at [38] of his decision in failing to consider the reasonably foreseeable consequences of the decision to deprive the appellant of his citizenship. Unlike in Deliallisi, no...
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