Upper Tribunal (Immigration and asylum chamber), 2024-04-16, [2024] UKUT 00144 (IAC) (Onuzi (good character requirement: Sleiman considered))

UT Neutral Citation Number: [2024] UKUT 00144 (IAC)

Onuzi (good character requirement: Sleiman considered)

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Heard at Field House


THE IMMIGRATION ACTS


Heard on 08 August 2023
and 07 February 2024
Promulgated on 29 November 2023
and 16 April 2024


Before

UPPER TRIBUNAL JUDGE CANAVAN
DEPUTY UPPER TRIBUNAL JUDGE SYMES


Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

BETIM ONUZI
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms S. Cunha, Senior Home Office Presenting Officer
For the Respondent: Mr T. Bahja, instructed by OTS Solicitors


1. Each case is fact sensitive. In the absence of a statutory definition of ‘good character’, the starting point is for the Secretary of State to decide, subject to general principles of administrative law, whether a person is of good character for the purpose of granting citizenship under section 6(1) and Schedule 1 of the British Nationality Act 1981 (‘BNA 1981’).

2. Any negative behaviour that might cast doubt on whether a person is of good character is likely to be directly material to the assessment of the statutory requirement, whether it played a role in the application for naturalisation itself or took place before the application.

3. In the majority of cases where negative behaviour that might cast doubt on whether a person is of good character has been dishonestly concealed from the Secretary of State, the fact that the negative behaviour might not have been directly relevant to an earlier grant of leave is unlikely to make any material difference to the assessment under section 40(3) BNA 1981. It is for the Secretary of State to decide, subject to general principles of administrative law, whether the negative behaviour might have made a material difference to the assessment of good character under section 6(1) BNA 1981 had the information been known at the time.

4. The omission of a fact that might have cast doubt on whether a person is of good character when they applied for naturalisation is likely to be material to the question of whether a person ‘obtained’ citizenship by the dishonest concealment of a material fact for the purpose of section 40(3) BNA 1981.

5. The concept of a chain of causation being broken is only likely to be relevant in cases where there was full disclosure and the Secretary of State exercised discretion to grant leave to remain or naturalisation while in full possession of the facts.

6. The decision in Sleiman was based on limited argument and should be read in the full context of the statutory scheme and other relevant case law.

DECISION AND REASONS

1. This decision considers the relevance of the ‘good character’ requirement contained in section 6 and Schedule 1 of the British Nationality Act 1981 (‘BNA 1981’), which must be considered before a person can be naturalised as a British citizen, in the context of an appeal brought under section 40(A) against a decision to deprive a person of citizenship status with reference to section 40(3) (fraud, false representation, or concealment of a material fact).
Background
2. For the sake of continuity, we will refer to the parties as they were before the First-tier Tribunal although technically the Secretary of State is the appellant in the appeal before the Upper Tribunal.
3. The original appellant entered the UK illegally on 28 November 1999 and claimed asylum. He claimed to be Betim Jonuzi, born on 22 February 1976, from Kosovo. In fact, he is Betim Onuzi, born on 23 February 1976, and he is from Albania. The appellant put forward a false asylum application claiming to be at risk of persecution from the Yugoslav authorities in Kosovo as an ethnic Albanian.
4. The respondent refused the asylum claim in a decision dated 16 August 2000. The exact course of the subsequent events is somewhat unclear from the partial evidence contained in the Home Office bundle and a separate copy of the respondent’s notes from the GCID system. A letter from the Home Office dated 13 February 2001, to an unknown recipient (addressed to ‘Dear Sir or Madam), indicated that the appellant was informed by social services in September 2000 that he had been granted Exceptional Leave to Remain (ELR) until 18 August 2004. The Home Office clarified that this incorrect record was transmitted to social services in error. Notes from the respondent’s GCID system indicate that there was no evidence of a grant of ELR on the file. Although a field in the GCID system was checked to show that he had been refused asylum and granted ELR, there appears to be no other evidence to show that the appellant was ever notified of a decision to grant ELR by the Home Office (the relevant authority with power to make the decision) or was issued with papers actually granting him ELR.
5. The assertion that this was likely to be an administrative error is consistent with the respondent’s policy at the time, which was on the cusp of change when the appellant arrived in the UK. During the conflict in Kosovo, the respondent recognised Kosovar Albanians as refugees or granted them temporary protection. The policy changed following the ceasefire in Kosovo on 10 June 1999. The respondent continued to grant ELR to Kosovans who claimed asylum before 24 March 1999. By 13 September 1999 the respondent returned to the usual policy of considering claims on their merits: see summary in R (Matusha) v SSHD (revocation of ILR policy) [2021] UKUT 175 at [7]. In light of this, it seems likely that the respondent was correct to state in the letter dated 13 February 2001 that the appellant was informed that he had been granted ELR in error. He claimed asylum after the change in policy.
6. What happened next is even less clear. A GCID note dated 10 March 2006, prepared while considering an application made by the appellant for leave to remain, summarised events in 2001 as follows:
‘CID shows that Mr J was granted ELR but it appears to be an error as his Asylum claim was refused and there is no evidence on file of any grant. Unfortunately Slough Social Services were told in writing (copy on file) that Mr J had been granted ELR for 4 years up to 16/08/04. Mr J’s representative sought clarification from an Adjudicator as a preliminary issue. The Determination was Promulgated (sic) on 24/05/01. The Adjudicator stated “and the Adjudicator finds that the respondent is now estopped from denying its authenticity, indeed manifestly less so where the cause is action rather than inaction.” (sic) The Presenting Officer… asked for, and was granted, an adjournment for legal advice.’
7. The respondent’s bundle contains a ‘Decision on a Preliminary Issue’ dated 24 May 2001 made by an adjudicator. The decision states:
‘1. The question has been raised as a preliminary issue in this case whether I have jurisdiction to hear the matter of an alleged legitimate expectation.
2. I find that I do have jurisdiction.
3. The phrase “legitimate expectation” has been somewhat bandied about, and has also gained a portmanteau meaning, partly because of the variety of contexts in which it has been said to arise.
4. The higher courts alone, certainly, can address such issues of a general kind (but in the context of immigration) as, “Is there a legitimate expectation that such and such is the case?” or “Is there a legitimate expectation that this or that will be done?” But it happens from time to time that what is described as a matter of legitimate expectation contains no more by way of expectation than that the respondent will stand by something he has said to the appellant and will not renege on it. The expression “legitimate expectation” is scarcely appropriate, and the matter is really one of estoppel. That is so here.
5. It seems to me that it is no more outside the jurisdiction of an Adjudicator to deal with such matters of estoppel than with the situation where the respondent has over a long period failed to authenticate or otherwise for example an arrest warrant, and the Adjudicator finds that the respondent is now estopped from denying its authenticity, indeed manifestly less so where the cause is action rather than inaction.’
8. It is unclear on what basis this case came before the special adjudicator. At the time, the only right of appeal that the appellant was likely to have was against the decision to refuse asylum dated 16 August 2000. At that date, the appeal is likely to have been brought under section 8 of the Asylum and Immigration Appeals Act 1993. The available grounds were that removal in consequence of the refusal of leave to enter, variation of leave, or refusal to vary leave, would be contrary to the United Kingdom’s obligations under the Refugee Convention. The adjudicator did not explain why he considered that he had jurisdiction to make a preliminary decision regarding an erroneous statement made to the appellant by social services, but not by the respondent, about a grant of ELR (a matter than did not engage the Refugee Convention). Nor did he explain what his decision was.
9. The GCID note dated 10 March 2006 went on to say:
‘LAB were subsequently contacted and in an e-mail reply they thought that the case should not be automatically conceded but suggested arguments that we could put forward. Nothing else appears to have been done on the case until 03-04 when the file was returned to the PO. He thought that there would have been another appeal hearing but this was not the case. The appeal was finally heard on 27 January 2004. He then suggested that we withdraw the decision, grant Mr J leave until 16/08/04 and reconsider the case. There is a Notice Of Withdrawal Of Decision (sic) dated 30 January ’04 on file. We did not grant Mr J any leave and the case has been passed from department to department. There are a number of complaint letters on file.’
10. There is no evidence to show that any appeal was determined by the tribunal and there is only vague evidence to suggest that the underlying...