Mr Syed Tahseen Ahmed v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Lady Justice Elisabeth Laing,Lord Justice Moylan |
| Judgment Date | 28 September 2023 |
| Neutral Citation | [2023] EWCA Civ 1087 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001854 |
[2023] EWCA Civ 1087
Lord Justice Moylan
Lord Justice Dingemans
and
Lady Justice Elisabeth Laing
Case No: CA-2022-001854
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IAC)
Judge Blundell
DC/00135/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Zane Malik KC and Reuben Solomon (instructed by Woolfe & Co Solicitors) for the Appellant
Julia Smyth and Rajkiran Barhey (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 22 June 2023
Approved Judgment
This judgment was handed down remotely at 12 o'clock on 28 September 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This appeal raises issues about whether the Upper Tribunal (Immigration and Asylum Chamber) (UTIAC) made errors of law in a decision dated 24 January 2022 in finding that the Respondent, the Secretary of State for the Home Department (the Secretary of State), was entitled on 29 November 2019 to deprive the Appellant, Mr Syed Tahseen Ahmed (Mr Ahmed), of his British citizenship pursuant to the provisions of section 40(3) of the British Nationality Act (the 1981 Act). Mr Ahmed had obtained his British citizenship on 20 August 2018 following an application made on 30 July 2018.
In the argument before the Court, raised by a Respondent's Notice to affirm UTIAC's decision on different grounds, and a late application to amend the Appellant's Notice, issues were raised about the scope of an appeal to the First-tier Tribunal (Immigration and Asylum Chamber) (FTT) brought pursuant to the provisions of section 40A of the 1981 Act, against an order made under section 40(3) of the 1981 Act. This was in the light of the decision of the Supreme Court in R (Begum) v Special Immigration Appeal Commission [2021] UKSC 7; [2021] AC 765 ( R (Begum)) and subsequent decisions of UTIAC on the approach to such appeals.
Factual background
Mr Ahmed is a Pakistani national and was born on 6 January 1976. He married a Pakistani national, Ms Farhat Sbuhi (Ms Sbuhi), in Pakistan in 2001 and they had two children. Mr Ahmed came to the UK in March 2006 with leave to enter as a student. A third child was born to Mr Ahmed and Ms Sbuhi later in October 2006. It is relevant to note, given the later issues, that this child was conceived before Mr Ahmed left for the UK.
In December 2006 Mr Ahmed met a Polish national, Ms Weronika Lebkowska (Ms Lebkowska) and started a relationship with her.
In October 2008, Mr Ahmed received a document from Pakistan entitled Divorce Deed (“the divorce deed”). This divorce deed was signed by Ms Sbuhi and purported to end the marriage between Mr Ahmed and Ms Sbuhi irrevocably and to allow Mr Ahmed to remarry after a period of three months.
On 28 May 2009, Mr Ahmed made an application for a residence card as the extended family member of an EEA national, being Ms Lebkowska, based upon their durable relationship of two years' cohabitation. In the application form Mr Ahmed described Ms Lebkowska as his partner. It is common ground that the divorce deed was sent with this application. Mr Ahmed signed a declaration to the effect that the information that he had given was complete and true to the best of his knowledge.
On 16 September 2009 Mr Ahmed and Ms Lebkowska were married in an Islamic ceremony in September 2009. It is now common ground that this ceremony was not effective to create a lawful marriage in the UK. On 27 July 2010 Mr Ahmed was granted a residence card as Ms Lebkowska's extended family member.
On 27 July 2010 Mr Ahmed was granted residence in the UK based on his durable relationship with Ms Lebkowska as an unmarried partner.
In January 2011, Mr Ahmed travelled to Pakistan and stayed there for 34 days. At some stage during that visit Mr Ahmed had sexual relations with Ms Sbuhi. As a result Ms Sbuhi had a fourth child with Mr Ahmed who was born on 24 September 2011. Ms Sbuhi and the four children continued to reside in Pakistan.
On 21 July 2015 Mr Ahmed made an application (“the EEA application”) for permanent residence in the UK on the basis that he had resided in the UK in accordance with the EEA Regulations for five years with Ms Lebkowska. At paragraph 11.23 of that application Mr Ahmed answered that he had been married before his current relationship. At paragraph 11.24 he was asked to provide details “of all other current or previous marriages …” Details were to include “date and place of any marriages and divorce, annulment or dissolution, how long the relationship lasted … and any other relevant details”. Mr Ahmed gave Ms Sbuhi's name and said “Divorced 14.10.2008. Relationship lasted 7.5 years”. There was no mention of the birth of his fourth child with Ms Sbuhi or the circumstances which gave rise to that. Mr Ahmed signed a declaration to the effect that the information that he had given was complete and true to the best of his knowledge.
The EEA application was refused in December 2015 on the basis that Ms Lebkowska was not registered with the Worker Registration Scheme (‘WRS’). Mr Ahmed appealed to the FTT. In the meantime, in December 2016, Mr Ahmed moved out of accommodation which he shared with Ms Lebkowska and they separated.
Mr Ahmed's appeal was heard on 21 February 2017. The FTT judge was informed about the separation from Ms Lebkowska but considered it to be immaterial because the five-year qualification period had been completed in 2015, and the reason given by the Secretary of State for refusing the EEA application was wrong. This was because Ms Lebkowska had been a qualified person in the UK for over seven years and had registered her employment under the WRS. The appeal was allowed. The Secretary of State issued Mr Ahmed with a Permanent Residence Card on 12 July 2017.
On 25 August 2017, Mr Ahmed returned on a visit to Pakistan and is said to have reconciled with Ms Sbuhi. Mr Ahmed returned to the UK.
Mr Ahmed made an application for British citizenship on 30 July 2018. Mr Ahmed submitted a Form AN and in doing so, he confirmed that he had read and understood Guide AN, which states “you must tell us if you have practised deception in your dealing with the Home Office or other government departments (for example, by providing false information or fraudulent documents). This will be taken into account in considering whether you meet the good character requirement.” It also states “you may be deprived of British citizenship if it is found to have been obtained by fraud, false representation or the concealment of any material fact.”
Mr Ahmed was informed by letter dated 20 August 2018 that his application had been successful. On 29 August 2018 Mr Ahmed attended his ceremony and was issued with a certificate of naturalisation. He then applied for a British passport.
On 17 December 2018 Mr Ahmed applied for entry clearance for Ms Sbuhi and his four children to join him in the UK. This application was supported by a statutory declaration from Mr Ahmed. He stated that he wished to sponsor his wife and children to come to the UK. He gave details of his employment and means. He said “I confirm that my wife and I got married on 18 th March 2001 at Village Pangpiran Qala Syedan Distt Kotli AJK Pakistan. I lived with my wife for 5 years and then I moved to the UK. I have continuously remained in regular contact with my family via WhatsApp and telephone calls. I regularly visit my family.” He then gave details of visits in 2008, 2011, 2012, 2013, two visits in 2014, 2017 and 2018. Mr Ahmed enclosed details of his marriage certificate, wedding photographs, family photographs and WhatsApp and telephone records. Mr Ahmed made no reference to his relationship with Ms Lebkowska, or to the divorce deed sent to him by Ms Sbuhi.
On 12 April 2019 the Secretary of State sent a letter telling Mr Ahmed that there was information confirming that he had obtained his status in the UK as a result of a bigamous marriage. On 1 May 2019 solicitors acting for Mr Ahmed responded. They stated that Mr Ahmed and Ms Sbuhi were first cousins and their respective families lived close to each other in Village Pang Piran, Pakistan. They had not been in a subsisting relationship from 2006 until 2017, even though they had had a child during that time.
Mr Ahmed made a statement dated 29 April 2019. In that statement he set out how he had moved to the UK and how that move led to arguments with Ms Sbuhi who had left his house in Pakistan. Mr Ahmed decided to move on and he met Ms Lebkowska. He did stay in contact with his children, and visited Pakistan to see his children and sisters and brothers in Pakistan. Ms Sbuhi was angry with Mr Ahmed and in October 2008 Mr Ahmed received the divorce deed. Mr Ahmed said “this statement was not an actual divorce, but it clearly stated she had divorced me … I did not respond to that statement as I had moved on.” He related that during one visit in 2011 the children were staying with him. Ms Sbuhi had stayed with him for a couple of days as the youngest child was not well and they had sexual relations during that time. Mr Ahmed explained the break up of his relationship with Ms Lebkowska and his reconciliation with Ms Sbuhi. He denied any false representation or fraud, and said he had always been open, honest and truthful with the Home Office.
Ms Sbuhi made a statement dated 27 April 2019. Ms Sbuhi referred to Mr Ahmed's decision to move to the UK, their separation and her move back to her parents' house, and her discovery of Mr Ahmed's relationship with Ms Lebkowska. That had been upsetting so she sent a formal statement advising him of her intention to divorce, but had been advised that “it did not constitute formal...
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