Shyti v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing,Lord Justice Dingemans,Lord Justice Moylan |
| Judgment Date | 04 July 2023 |
| Neutral Citation | [2023] EWCA Civ 770 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-000948 |
[2023] EWCA Civ 770
Lord Justice Moylan
Lord Justice Dingemans
and
Lady Justice Elisabeth Laing
Case No: CA-2022-000948
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL IMMIGRATION
AND ASYLUM CHAMBER
Upper Tribunal Judge Kamara
and First Tier Tribunal Judge A K Sharma
DC/00038/2020
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Southey KC and Alasdair Mackenzie (instructed by TRP) for the Appellant
Julia Smyth and Rajkiran Barhey (instructed by The Treasury Solicitor) for the Respondent
Hearing dates: 20 and 21 June 2023
Approved Judgment
This judgment was handed down remotely at 11.00am on 4 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
On 4 March 2020, the Secretary of State notified the Appellant (‘A’) of her decision to deprive him of his British Nationality in a fully reasoned letter (‘the Decision’). A appealed against the Decision to the First-tier Tribunal (Immigration and Asylum Chamber) (‘the F-tT’). The F-tT allowed his appeal. The Secretary of State then appealed to the Upper Tribunal (Immigration and Asylum) Chamber (‘the UT’). The UT allowed the appeal of the Secretary of State. The UT held that there was an error of law in the F-tT's determination and remitted the appeal to the F-tT for it to be re-heard. A now appeals against the determination of the UT.
A was deprived of his nationality on the ground, in short, that he had obtained his citizenship by fraud. He admits lying in his application for citizenship. It is also uncontroversial that he lied in other earlier applications he made to the Secretary of State. He did not disclose any of those other lies in his application for citizenship, despite being given an opportunity to do so.
The grounds of appeal raise two issues. At the F-tT, the Secretary of State was represented by a presenting officer (‘HOPO’). The HOPO did not, in his limited oral submissions, rely on the full reasoning in the Decision, but it is accepted, as the UT found, that he did not concede that any part of the Decision was withdrawn. The first issue is whether it was open to the UT to find that the F-tT erred in law by failing, in this case, to consider the reasoning in the Decision in full (‘ground 1’). A second potential issue concerns the correct legal approach to appeals in cases such as this. A contends that they are still governed by the reasoning in paragraph 6 of KV (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 2483; [2018] 4 WLR 166 (‘ground 2’). The Secretary of State argues that the reasoning in R (Begum) v Secretary of State for the Home Department [2021] UKSC 7; [2021] AC 765 (‘ Begum’) now applies to such appeals, as the UT has held in Ciceri (deprivation of citizenship appeals; principles) [2021] UKUT 00238 (IAC) (‘ Ciceri’) and, more recently, in Chimi (deprivation appeals: scope and evidence) Cameroon [3023] UKUT 00115 (IAC), a decision of a Presidential Panel.
In this judgment I will summarise some of the documents in A's case which were annexed to the Decision, and the reasoning of the F-tT and of the UT. I will then summarise the legal framework. Against that background, I will then summarise the submissions and give the reasons for my conclusions.
For the reasons given in this judgment, I have decided that the UT did not err in law in holding that the F-tT did err in law in not considering the main strands of the reasoning in the Decision, despite the lack of help from the HOPO. I have also decided that, notwithstanding the force of Mr Southey KC's argument on ground 2 (although I have one reservation about it: see the last two sentences of paragraph 91, below) we should not decide the second issue, as, on any view, anything we might say about it would be obiter.
A was represented by Mr Southey KC and Mr Mackenzie. The Secretary of State was represented by Ms Smyth and Ms Barhey. The Secretary of State's skeleton argument was drafted by Ms Smyth and Ms Wakeman. I thank counsel for their written and oral submissions. Paragraph references are to the determinations of the F-tT or of the UT, as the case may be, or to whichever other document or authority I am referring to in the relevant passage of this judgment.
The facts
The key facts are summarised in the Decision (see paragraphs 14–24, below). I will now describe some of the annexes to the Decision in order to supplement that summary in some relevant respects. All those annexes were in the Secretary of State's bundle of documents for the F-tT hearing. Both the parties also relied on the Secretary of State's internal case record, known as the ‘GCID notes’, and it is convenient also briefly to refer to that material in this part of the judgment.
A is an Albanian citizen. He arrived in the United Kingdom in 1999. He claimed asylum by falsely claiming to be a Kosovan national. The name he used was very similar to his true name, and he gave his true date of birth. His asylum claim was refused, and his appeal was dismissed. He stayed in the United Kingdom. He made and maintained this false claim to be a Kosovan national in five different communications/applications with or to the Home Office, two of which concerned his asylum claim. On four occasions he signed declarations that he was telling the truth, and acknowledging various consequences if he was not doing so. I will now say a little more about his applications under what has been called ‘the Legacy Programme’, his application for a travel document, and his application for naturalisation as a British citizen.
The grant of indefinite leave to remain
One of those communications was a ‘Case Resolution Questionnaire’ which A submitted on 7 September 2009 under what has been referred to as ‘the Legacy Programme’. He falsely claimed (for the third time) to be a Kosovan national, again using his false name. The parties disagreed whether his lies were material to the grant, on 2 July 2010, of indefinite leave to remain (‘ILR’) under the Legacy Programme. A submitted that ILR was expressly granted because of the length of time which A had spent in the United Kingdom and his ties with the United Kingdom. His nationality was not relevant to that grant: many people who made false asylum claims must have been granted ILR under the Legacy Programme. The Secretary of State submitted that it was clear from the later decision in R (Gjon Matusha) v Secretary of State for the Home Department [2012] UKUT 0175 (IAC) (a decision of a Presidential Panel of the UT) that, on the contrary, good character was relevant to the grant of ILR, because paragraph 395C of the Immigration Rules (HC 395 as amended) (‘the Rules’) applied to a decision under the Legacy Programme. Both the parties referred to the GCID notes recording the Secretary of State's internal consideration of the decision to grant ILR. The GCID notes show that the Secretary of State took into account both A's length of residence in the United Kingdom, and whether or not he was considered to be of good character (by reference to paragraph 395C). At that stage, it is also clear that the Secretary of State concluded that A was of good character.
A's application for a travel document
A made an application for a travel document dated 3 August 2010. In that application he claimed, in three different places, to be a Kosovan national. He also claimed that he had been born in Kosovo. He again used his false name.
The application for naturalisation
Guide AN
The application form which A filled in tells applicants, at the start, to read ‘Guide AN’. Section 2 of Guide AN, as it applied when A made his application, advised applicants to ‘Make sure that all the information is correct before you submit the application. It is a criminal offence to give false information knowingly or recklessly’. Section 3 is headed ‘Good character’. Under paragraph 3.17 is the following text: ‘You must tell us if you have practised deception in your dealings with the Home Office…(eg by providing false information…). This will be taken into account in considering whether you meet the good character requirement. If your application is refused, and there is clear evidence of deception, any future application made within 10 years is unlikely to be successful.’
A's application form
In the application form, A used his false name. He claimed to be a Kosovan national and that he was born in Kosovo. He said that both his parents were born there, and gave their claimed names. Section 3 of the form is headed ‘Good Character Requirement’. Various specific questions are asked, for example, about criminal convictions, civil judgments and civil penalties, entries on the ‘sex offenders register’ and outstanding criminal charges. Question 3.16 asked, ‘Have you ever been engaged in any other conduct which might indicate that you may not be considered a person of good character?’. Paragraph 3.17 asked for further details to be provided in a text box, or on a separate sheet, if the applicant had answered ‘Yes’ to, among others, question 3.16. A replied ‘No’. At the foot of section 3, the form continued, ‘For the purpose of answering questions 3.10–3.16, please refer to the Booklet AN which provides guidance on actions which may constitute war crimes, crimes against humanity, genocide or terrorist activities.’
Section 6 was headed ‘Declaration by applicant’. It was headed by a warning that it is a criminal offence knowingly or recklessly to give false information on the application form. In this section, A again gave his false name, twice. He declared, in short, that the information on the form was correct. He confirmed that he understood the risk of prosecution. He also...
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