Upper Tribunal (Immigration and asylum chamber), 2024-03-11, UI-2023-004223
| Appeal Number | UI-2023-004223 |
| Hearing Date | 26 February 2024 |
| Date | 11 March 2024 |
| Published date | 26 March 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Case No: UI-2023-004223
First-tier Tribunal No: DC/50237/2022
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-004223 First-tier Tribunal No: DC/50237/2022
|
|
|
Heard at Field House on 26 February 2024 Promulgated on …..11 March 2024 |
THE IMMIGRATION ACTS
Before
THE HON. MR JUSTICE DOVE, PRESIDENT
DEPUTY UPPER TRIBUNAL JUDGE HOLMES
Between
ABDUL REDA RKAIN
NO ANONYMITY ORDER MADE
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms Record, Counsel
For the Respondent: Mr Clarke, Senior Home Office Presenting Officer
DECISION AND REASONS
-
The Appellant applied for a passport as a British Overseas Citizen on 28 September 1998, as he was entitled to do. In doing so he supplied with his application the Lebanese passport that had been issued to him by the Lebanese authorities in Beirut in 1997, as part of the supporting evidence required to establish his identity. In due course a British Overseas Citizen passport was issued to him by the United Kingdon passport office.
-
On 25 January 2004 the Appellant applied to the Respondent for registration as a British citizen, pursuant to section 4B of the British Nationality Act. To qualify as such the Appellant had to hold no other citizenship beyond his British Overseas Citizenship, and so the application form required a declaration from the Appellant that this was indeed the case. The application form also required of him a declaration that the contents of his application were true, and warned him that to give false information knowingly, or indeed recklessly, was a criminal offence. The Appellant completed the application form to declare that he held no other citizenship beyond that of his British Overseas Citizenship, and had never done so [Section 8].
-
Accordingly the Appellant made no reference to the Lebanese passport in the application for registration, and he denied that he held, or indeed had ever held, Lebanese citizenship. He subsequently provided in support of his application a letter from the Embassy of the Lebanon in Kinshasa dated 24 November 2004 attesting that he did not have the right to citizenship of the Lebanon. The application for registration as a British citizen was granted on 6 January 2005.
-
On 25 August 2022 the Respondent gave written notice to the Appellant that he had reason to believe that the Appellant had obtained fraudulently his British citizen status. As a result of a wider ranging investigation into abuse of the registration process by British Overseas Citizens, the Respondent had been alerted to the fact that the Appellant had submitted the Lebanese passport issued to him in 1997, in support of his 1998 application for a British Overseas Citizen passport. Thus, the Respondent was in possession of information that suggested the Appellant had held Lebanese citizenship in 1997, and that he may therefore have continued to hold another nationality when he had applied for registration as a British citizen in 2004, and if so, he had concealed both facts when doing so.
-
The Appellant was informed that the Respondent was considering depriving him of that British citizen status under s40(3) of the British Nationality Act 1981. In order to reach a decision on the matter the Respondent required the Appellant to provide documents, information and answers to fifteen questions that concerned inter alia his birth registration, the Lebanese civil registration records that related to him, and, details of the members of his immediate family. Question 6 raised a specific enquiry, as to why, given his circumstances, he claimed he was not entitled to Lebanese nationality at the date of application; “Please explain why, according to the Lebanese Embassy of Kinshasa you were not entitled to Lebanese nationality.” Correspondingly, Question 7 focused upon whether, having been entitled to Lebanese nationality, he claimed that he no longer held it at the date of application; “Please state whether you have ever renounced or lost Lebanese nationality.”
-
The Appellant responded on 20 September 2022 providing both documents, and answers. He declared that since his father was not born in Lebanon, he could not acquire Lebanese citizenship by descent. He claimed to have enclosed copies of all the passports he had ever held, but he omitted in making that response to provide a copy of, or make any reference to, the Lebanese passport issued to him in 1997, and which he had supplied in support of his application for a British Overseas Citizen passport. He declared that he had never renounced or lost Lebanese citizenship.
-
That response prompted the Respondent to raise further queries of him by email, concerning the length of his residence in the Lebanon, and, whether he had ever been issued with a Lebanese passport, but the Appellant chose to give no response to them. (Decision letter [14] – we also note that Ms Record accepted that no dispute had ever been raised by the Appellant over whether these emails were received by him, or left unanswered as alleged by the Respondent in his reasons for the decision under appeal.)
-
On 1 November 2022 the Respondent issued a written decision to the Appellant of his conclusion that the Appellant had obtained his British citizenship fraudulently, and, his decision that the Appellant should therefore be deprived of that citizenship, together with his reasons for those decisions.
-
The Appellant lodged an appeal against that decision under s40A of the 1981 Act, which was heard, and allowed, by First-tier Tribunal Judge Brannan in a decision promulgated on 14 July 2023.
-
The Judge recognised that it was not in dispute that the Appellant had provided a Lebanese passport in support of his September 1998 application for a British Overseas Citizen passport, and that he had at best made no reference to its existence in the course of his registration application of 25 January 2004. The Judge was not persuaded that it was irrational for the Respondent to have concluded that the Appellant held Lebanese citizenship in 1998, and that he continued to hold it in January 2004, at the date that he had applied for registration as a British citizen. Nevertheless, the Judge’s reasoning appears to have led him to the conclusion that the process followed by the Respondent in making his enquiries prior to reaching his decision to deprive was so unfair that it necessarily, and of itself, rendered the decision of 1 November 2022 an unlawful one.
-
The Respondent sought permission to appeal that decision to the Upper Tribunal and a limited grant of permission was given on 26 September 2023. Before us, there was no dispute that the scope of the permitted challenge by the Respondent is the alleged failure of the Judge to properly take into account the full content of the Respondent’s notice of 25 August 2022, and thus the range and focus of the enquiries that were raised of the Appellant. In short, the Respondent argues that whatever common law fairness did require of the Respondent in the circumstances of this case, the process that was adopted met that required standard. Moreover, as the Judge should have identified, in reality it was the Appellant who had failed to properly engage with the opportunity that had been offered to him, to explain himself.
Due process in the course of the decision making
-
It is not suggested that this is one of those cases concerning the threat to society arising either on national security grounds, or, through involvement in serious organised crime, that could have lead the Respondent to consider the use of his powers under s40(2). Accordingly, there was no prospect of the Appellant being able to take advantage of a forewarning of the Respondent’s concerns in order to be able to frustrate the process of deprivation of citizenship, by taking steps to rid themselves of any alternative citizenship they held. It is clear that on many occasions when the Respondent is considering his powers under s40(2) that will be a matter that will require his consideration. Recent examples arising in both the national security setting, and the serious organised crime setting, can be found in both Begum v SSHD [2024] EWCA Civ 152, and, Kolicaj (Deprivation: procedure and discretion) Albania [2023] UKUT 294.
We turn then to those occasions when the Respondent is considering the use of his powers under s 40(3) as a result of a suspicion that there was a resort to deceit in the course of the application for naturalisation, or for registration, as this was. We anticipate that there will be many cases referred to the Respondent’s Status Review Unit for investigation, and, to allow for a proper consideration of the exercise of the discretion, in which the individual has an explanation to offer for their conduct, or, matters that they should draw to the Respondent’s attention as potentially weighing against the exercise of his discretion in favour of the deprivation of their British citizenship. Some may be able to establish unequivocally that their impugned conduct was innocent. Some may be...
To continue reading
Request your trial