The Secretary of State for the Home Department v Abdul Waheed Pirzada

JurisdictionUK Non-devolved
JudgeMr C M G Ockelton,Martin,CMG Ockelton,Martin UTJ
Judgment Date20 April 2017
Neutral Citation[2017] UKUT 196 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Date20 April 2017
Between
The Secretary of State for the Home Department
Appellant
and
Abdul Waheed Pirzada
Respondent

[2017] UKUT 196 (IAC)

Before

Mr C M G Ockelton, VICE PRESIDENT

UPPER TRIBUNAL JUDGE Martin

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Pirzada (Deprivation of citizenship: general principles)

  • (i) The Secretary of State has two separate powers of deprivation, exercisable on different grounds, as set out in sub-ss (2) and (3) of s 40 of the British Nationality Act 1981.

  • (ii) The power under s 40(2) arises only if the Secretary of State is satisfied that deprivation is conducive to the public good.

  • (iii) The power under sub-s (3) arises only if the Secretary of State is satisfied that registration or naturalisation was obtained by fraud, false representation or concealment of a material fact. The deception referred to must have motivated the grant of (in the present case) citizenship, and therefore necessarily preceded that grant.

  • (iv) The separation of sub-ss (2) and (3) makes it clear that obtaining naturalisation by one of the means of deception set out in sub-s (3) cannot of itself amount to a reason enabling the Secretary of State to be satisfied that deprivation is conducive to the public good for the purposes of sub-s (2); but, in an appropriate case, there would appear to be no reason why the Secretary of State should not be satisfied that the conditions under both subsections exist.

  • (v) The restrictions on the rights of appeal imposed by s 84 of the 2002 Act do not apply to appeals against a s 40 decision: therefore, any proper ground of appeal is available to an applicant. The grounds of appeal are, however, limited by the formulation of s 40 and must be directed to whether the Secretary of State's decision was in fact empowered by that section. There is no suggestion that a Tribunal has the power to consider whether it is satisfied of any of the matters set out in sub-ss (2) or (3); nor is there any suggestion that the Tribunal can itself exercise the Secretary of State's discretion.

Representation:

For the Appellant: Mr C Bates, Senior Home Office Presenting Officer.

For the Respondent: Ms Kullar, Solicitor, instructed by S H Solicitors.

DETERMINATION AND REASONS
1

This is the Secretary of State's appeal against a decision of Judge R R Hopkins in the First-tier Tribunal. The decision primarily in question was made by the Secretary of State on 8 October 2015 and is a decision that the claimant should be deprived of his British citizenship.

2

The facts are as follows. The applicant was born in 1962. He is or was a national of Afghanistan. He arrived in the United Kingdom in June 2001 and claimed asylum. His claim was refused because the Secretary of State did not think that he had given a truthful account of his immigration history. Nevertheless, he was granted leave to remain, and it appears that he had such leave until 23 March 2006. Just before the expiry of that leave he applied for indefinite leave to remain, and that was granted. On 7 February 2008 he applied for naturalisation as a British citizen. The application was granted and a certificate of naturalisation was issued on 14 May 2008. Since that date, therefore, he has been a British citizen.

3

The applicant's history before he arrived in this country is far from clear. He evidently spent some time in Russia, apparently studying medicine. He has a diploma indicating his graduation with a medical degree from St Petersburg University in 2000, which is thought to be genuine. Certainly, in other proceedings which we shall shortly mention, he has relied upon it. He has apparently worked at some stage in Pakistan. The fact that he was in St Petersburg, presumably for a considerable period of time ending in 2000, incidentally demonstrates that the account he gave of his history when claiming asylum was not the truth. He has no qualification entitling him to practice medicine at any level in the United Kingdom.

4

From 2004 onwards he was working in the United Kingdom in various medical contexts. In that year he obtained a job at the PAK Medical Centre in Birmingham as a part-time practice nurse. That employment continued at least until 2011. In 2011 he obtained further employment as a physician's assistant at the Al-Shafa Medical Centre in Birmingham. In addition, for a short period in 2010 he worked as a locum at the Oakwood Surgery, also in Birmingham.

5

Those activities and some others form some basis of criminal charges brought against him in the autumn of 2011. On 26 April 2012 he pleaded guilty to charges 1, 3 and 4 on an indictment, those charges relating to the activities we have set out above. As we understand it, the charges were on the basis of obtaining the employment and the relevant salary by fraud: these were not charges of pretending to be a registered practitioner under the Medical Act 1983 or similar legislation. The claimant was sentenced to a total of 17 months imprisonment for the three offences to which he had pleaded guilty.

6

After making enquiries of the claimant, the Secretary of State made a decision to deprive him of his British nationality on 3 April 2014. The claimant appealed against that decision and the appeal was allowed by Judge Andrew in the First-tier Tribunal on the ground that the decision was not in accordance with the law and thus could not stand. That decision was dated 27 July 2015. The Secretary of State made a new decision on 8 October 2015. It was against that decision that Judge Hopkins determined the appeal. We shall examine the Secretary of State's decisions and the judges' decisions in due course, but it is convenient first to set out the relevant legislation.

7

The provisions enabling the Secretary of State to deprive a person of citizenship are in s 40 of the British Nationality Act 1981. At the dates of the decisions and appeals under examination, the relevant provisions were as follows:

  • “40. Deprivation of citizenship

  • (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.

  • (4A) [This sub-section came into force on 28 July 2014]. But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if –

    • (a) the citizenship status results from the person's naturalisation,

    • (b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and

    • (c) the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.”

8

Section 40(5) requires the Secretary of State to give a notice in writing of her intention to make an order under s 40, and s 40A confers a right of appeal to the First-tier Tribunal upon a person who is given such a notice. Section 40A(3) provides that certain sections of the Nationality, Immigration and Asylum Act 2002 shall apply to such an appeal as they apply in relation to an appeal under s 82 (or ss 83 and 83A before their appeal) of the 2002 Act. We do not need to set that provision out, save to say that s 84, which both before and after amendment by the 2014 Act, sets out the possible grounds of appeal, is not a section that is made applicable to appeals against deprivation of citizenship.

9

We draw the following conclusions from the statutory provisions.

  • A. The Secretary of State has two separate powers of deprivation, exercisable on different grounds, as set out in sub-ss (2) and (3) of s 40.

  • B. The power under s 40(2) arises only if the Secretary of State is satisfied that deprivation is conducive to the public good.

  • C. The power under sub-s (3) arises only if the Secretary of State is satisfied that registration or naturalisation was obtained by fraud, false representation or concealment of a material fact. The deception referred to must have motivated the grant of (in the present case) citizenship, and therefore necessarily preceded that grant.

  • D. The separation of sub-ss (2) and (3) makes it clear that obtaining naturalisation by one of the means of deception set out in sub-s (3) cannot of itself amount to a reason enabling the Secretary of State to be satisfied that deprivation is conducive to the public good; but, in an appropriate case, there would appear to be no reason why the Secretary of State should not be satisfied that the conditions under both subsections exist.

  • E. The restrictions on the rights of appeal imposed by s 84 of the 2002 Act do not apply to appeals against a s 40 decision: therefore, any proper ground of appeal is available to an applicant. The grounds of appeal are, however, limited by the formulation of s 40 and must be directed to whether the Secretary of State's decision was in fact empowered by that section. There is no suggestion that a Tribunal has the power to consider whether it is satisfied of any of the matters set out in sub-ss ( 2) or (3); nor is there any suggestion that the Tribunal can itself exercise the Secretary of State's discretion.

10

We may take the...

To continue reading

Request your trial
25 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT