R Arnold Saad v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Anthony Elleray |
| Judgment Date | 09 April 2019 |
| Neutral Citation | [2019] EWHC 2000 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 April 2019 |
| Docket Number | No. CO/4179/2018 |
[2019] EWHC 2000 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Anthony Elleray QC
(Sitting as a Deputy Judge of the High Court)
No. CO/4179/2018
Ms C. Record (instructed by Direct Access) appeared on behalf of the Claimant.
Mr C. Thomann (instructed by the Government Legal Department) appeared on behalf of the Defendant.
THE JUDGE:
In this case Deputy High Court Judge Jeremy Johnson QC ordered on 15 January 2019 that the claimant (“Mr Saad”) had permission to amend his grounds of claim to include a challenge that his acquisition of British citizenship was invalid and/or the defendant (“the SSHD”) was not allowed to take it into account when applying Art.10 of the British Protectorate, Protected States and Protected Persons Order 1982 (“Art.10”).
As will appear, the Article deals with the loss of status of a British Protected Person (“BPP”) by virtue of connection with a former protectorate. A registered BPP (under Art.7 of the Order) shall cease to be such if at any time he becomes a British citizen. Mr Saad is said to have become a British citizen on 3 February 2015 and so as to have lost his previous BPP status. The claim form had challenged the vires of the 1982 order and/or the failure of the SSHD to inform Mr Saad that he would lose his right to BPP status on becoming a full British citizen.
On 11 December 2018 Nicholas Vineall QC refused permission to seek judicial review on those grounds. On 15 January 2019 Mr Johnson QC refused permission to claim judicial review on those grounds on a renewed oral application for permission to seek judicial review. He did, however, order that there be a rolled-up hearing to consider permission in respect of the amended grounds with a time estimate of two hours. The amended grounds were duly filed on 28 January 2019. Whilst they continued arguments supportive of the grounds which have not obtained, they do set out the amended grounds which Mr Johnson QC permitted to make.
This is the rolled up hearing directed by Mr Johnson QC. By “rolled-up” I am hearing the issue as to whether there should be permission to seek judicial review, as I have sought to emphasise, in relation simply to the amended grounds and, if I give permission, the substantive hearing of the application for judicial review. Ms Record appears before me for Mr Saad. Mr Thomann appears for the SSHD.
The background
Mr Saad was born on 6 June 1974 in Lebanon to parents from Sierra Leone which had been under British colonial rule. Sierra Leone became independent in 1961. Mr Saad was granted a BPP passport in 2003. On his application for it he declared a Lebanese passport number 109480. His BPP passport was issued 1 November 2003. It was renewed on 21 April 2008. On 2 January 2013 Mr Saad applied for registration as a British citizen under s.4B of the British Nationality Act 1981. The heading of s.4B is “Acquisition by registration: certain persons without other citizenship”. Section 4B(1)(c) refers to a BPP. Section 4B(2) provides:
“A person to whom this section applies shall be entitled to be registered as a British citizen if—
…
(b) the Secretary of State is satisfied that the person does not have, apart from the status mentioned in subsection (1), any citizenship or nationality.”
In making his application for registration, Mr Saad sent in letters, purportedly from Sierra Leone and Lebanese authorities, stating that he did not have citizenship of either of those countries. On 3 February 2015 Mr Saad was granted full British citizenship status under s.4B and a certificate of registration as such was issued that day. Equally, on that same day Mr Saad applied for a British passport and, as Ms Record emphasises to me, none has since been issued to him.
On 9 July 2015 the Status Review Unit (“SRU”) of the SSHD wrote to state that it was considering depriving Mr Saad of his citizenship because it had received information that he was in fact Lebanese when he was registered as a British citizen. On 10 August 2015 confirmation was received by the SSHD from the Foreign and Commonwealth Office that Mr Saad had continued to be registered as a Lebanese national and that the Mukhtar (Mayor) statement he had relied upon to prove non-entitlement to Lebanese citizenship was not a document with legal effect.
On 3 March 2016 Mr Saad issued judicial review proceedings for a failure to grant his application for a passport. He obtained permission to seek that judicial review on 31 March 2016. On 20 October 2016 the SSHD notified Mr Saad that Mr Saad had in fact obtained his British citizenship fraudulently (saying that he did not have Lebanese citizenship and submitting documents to evidence lack of relevant status). For a number of reasons, the SSHD concluded on the balance of probabilities that Mr Saad had been aware that he was a Lebanese citizen prior to making his application for British citizenship and did intentionally withhold information in order to meet requirements necessary to register his British citizenship under s.4B.
Section 40(2) of the 1981 Act provides that:
“[The SSHD] 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.”
Section 40 (3) provides:
“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.”
Section 40(4) provides:
“The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.”
There have been subsequent amendments to that section, with which I am not concerned.. Section 40(5) provides:
“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.”
Section 40(A) provides that a person who is issued with a notice of deprivation has a right of appeal to the First-tier Tribunal. Mr Saad appealed the decision on 26 October 2016 which was to deprive him of his citizenship under s.40(3).
On 20 February 2017 FTT Judge Cohen dismissed his appeal. His reasoning included that Mr Saad had in the past held at least two Lebanese passports. When Mr Saad had applied for British citizenship he had sought to hide the fact that he had lived in Lebanon for...
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