Upper Tribunal (Immigration and asylum chamber), 2024-05-24, UI-2022-006624 & UI-2022-006625

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-006624;
UI-2022-006625


First-tier Tribunal No: DC/50027/2020;
DC50032/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 24th of May 2024

Before

UPPER TRIBUNAL JUDGE SMITH

Between

(1) artur tahiri
(2) blerina syjaja
[no anonymity direction made]
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms H Foot, Counsel instructed by Oliver and Hasani Solicitors
For the Respondent: Ms E Blackburn, Senior Home Office Presenting Officer

Heard at Field House on Friday 12 April 2024


DECISION AND REASONS
BACKGROUND
1. By a decision promulgated on 4 December 2023, the Tribunal (myself sitting with Deputy Upper Tribunal Judge Grimes) found an error in the decision of First-tier Tribunal Judge S Taylor dated 11 September 2022 allowing the Appellants’ appeals against the Respondent’s decisions dated 20 October 2022 and 28 October 2022 respectively giving the Appellants notice to deprive them of their British citizenship pursuant to section 40(3) British Nationality Act 1981. The Tribunal’s error of law decision is appended hereto for ease of reference.
2. The error of law found was limited to the Judge’s assessment of Article 8 ECHR. We therefore set aside only paragraphs [16] to [18] of Judge Taylor’s decision.
3. The effect of the error of law decision is that the following findings made by Judge Taylor are preserved:
“15. I am satisfied that the appellants gave false information in their applications for citizenship, and that the applications would have been refused if the deception was known, even though the fraud of the second appellant was less material. Applying the above mentioned paragraphs of the Guidance, I am satisfied that the first tests in the case of Ciceri are met and that the appellants are liable to be deprived of his [sic] British citizenship. However, I accept the submission made that the respondent should have been aware of the true position since May 2006, when the second appellant made her application for entry clearance as a spouse and submitted her marriage certificate which indicates that the first appellant was a national of Albania. In addition, the first appellant sponsored a visit visa application for his parents in early 2007, which included his Albanian birth certificate. Even though there may be a lack of internal communication between a local entry clearance officer and the Home Office in the UK, I consider that it is entirely reasonable for the appellants to conclude that the respondent was aware of the first appellant’s true nationality since 2006. I am satisfied that the respondent has been on notice of the first appellant’s true nationality since 2006 and that this compounded the delay in starting measures to deprive the appellants of citizenship, which I will discuss in the proportionality assessment.”
4. The reference to the guidance given is to the case of Ciceri (deprivation of citizenship appeals: principles) Albania [2021] UKUT 238 (“Ciceri”) the headnote to which reads as follows:
“Following KV (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 2483, Aziz v Secretary of State for the Home Department [2018] EWCA Civ 1884, Hysaj (deprivation of citizenship: delay) [2020] UKUT 128 (IAC), R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7 and Laci v Secretary of State for the Home Department [2021] EWCA Civ 769 the legal principles regarding appeals under section 40A of the British Nationality Act 1981 against decisions to deprive a person of British citizenship are as follows:
(1) The Tribunal must first establish whether the relevant condition precedent specified in section 40(2) or (3) of the British Nationality Act 1981 exists for the exercise of the discretion whether to deprive the appellant of British citizenship. In a section 40(3) case, this requires the Tribunal to establish whether citizenship was obtained by one or more of the means specified in that subsection. In answering the condition precedent question, the Tribunal must adopt the approach set out in paragraph 71 of the judgment in Begum, which is to consider whether the Secretary of State has made findings of fact which are unsupported by any evidence or are based on a view of the evidence that could not reasonably be held.
(2) If the relevant condition precedent is established, the Tribunal must determine whether the rights of the appellant or any other relevant person under the ECHR are engaged (usually ECHR Article 8). If they are, the Tribunal must decide for itself whether depriving the appellant of British citizenship would constitute a violation of those rights, contrary to the obligation under section 6 of the Human Rights Act 1998 not to act in a way that is incompatible with the ECHR.
(3) In so doing:
(a) the Tribunal must determine the reasonably foreseeable consequences of deprivation; but it will not be necessary or appropriate for the Tribunal (at least in the usual case) to conduct a proleptic assessment of the likelihood of the appellant being lawfully removed from the United Kingdom; and
(b) any relevant assessment of proportionality is for the Tribunal to make, on the evidence before it (which may not be the same as the evidence considered by the Secretary of State).
(4) In determining proportionality, the Tribunal must pay due regard to the inherent weight that will normally lie on the Secretary of State’s side of the scales in the Article 8 balancing exercise, given the importance of maintaining the integrity of British nationality law in the face of attempts by individuals to subvert it by fraudulent conduct.
(5) Any delay by the Secretary of State in making a decision under section 40(2) or (3) may be relevant to the question of whether that decision constitutes a disproportionate interference with Article 8, applying the judgment of Lord Bingham in EB (Kosovo) v Secretary of State for the Home Department [2009] AC 1159. Any period during which the Secretary of State was adopting the (mistaken) stance that the grant of citizenship to the appellant was a nullity will, however, not normally be relevant in assessing the effects of delay by reference to the second and third of Lord Bingham’s points in paragraphs 13 to 16 of EB (Kosovo).
(6) If deprivation would not amount to a breach of section 6 of the 1998 Act, the Tribunal may allow the appeal only if it concludes that the Secretary of State has acted in a way in which no reasonable Secretary of State could have acted; has taken into account some irrelevant matter; has disregarded something which should have been given weight; has been guilty of some procedural impropriety; or has not complied with section 40(4) (which prevents the Secretary of State from making an order to deprive if she is satisfied that the order would make a person stateless).
(7) In reaching its conclusions under (6) above, the Tribunal must have regard to the nature of the discretionary power in section 40(2) or (3) and the Secretary of State’s responsibility for deciding whether deprivation of citizenship is conducive to the public good.”
5. The effect of the preserved findings is therefore that the fact of the Appellants having exercised deception/fraud is made out. It is also accepted that the deception/fraud was material to the grant of citizenship to both Appellants. The Respondent’s decisions were therefore lawful adopting public law principles.
6. The only issue which remains to be determined is whether the decisions breach the Appellants’ human rights. That issue involves consideration of the extent of the interference with their family and private lives caused by the deprivation of citizenship (and not at this stage with that which would be caused by removal). Delay in taking action to deprive the Appellants of their citizenship is also a live issue having regard to Judge Taylor’s finding that the Respondent was on notice and should have known of the First Appellant’s deception as to his nationality from 2006.
7. In addition to the guidance in Ciceri, I was also referred to the following cases: Hysaj (Deprivation of Citizenship; Delay) [2020] UKUT 128 (IAC) (“Hysaj”), Laci v Secretary of State for the Home Department [2021] EWCA Civ 769 (“Laci”) and Chimi v The Secretary of State for the Home Department (deprivation appeals; scope and evidence) Cameroon [2023] UKUT 115. The principles to be derived from those cases were not in dispute. I deal with the application of those principles to these cases in the discussion which follows so far as necessary.
EVIDENCE AND FINDINGS
8. I had before me a consolidated bundle lodged by the Respondent running to 955 pages to which I refer below as [B/xx]). That bundle contains the core documents relating to the appeal before me and the Appellants’ bundle before the First-tier Tribunal as well as the Respondent’s bundle before the First-tier Tribunal in relation to Mr Tahiri. Ms Foot pointed out that the Respondent’s bundle before the First-tier Tribunal in relation to Ms Syjaja was not in the consolidated bundle but I was able to access that. I refer to that as [RB/xx]. I also had a supplementary bundle of evidence filed by the Appellants running to 141 pages to which I refer as [SB/xx]. I heard oral evidence from both Appellants, and they were cross-examined. I refer only to the oral and documentary evidence which is relevant to the issues I have to decide, but I have taken into account all the evidence in what follows.
9. Mr Tahiri has provided two witness statements. The first is dated 5 October 2021 ([B/48-52]) and the second 4 January 2024 ([SB/10-15]).
10. In the first statement, Mr Tahiri sets out the background to his deception. He readily admits to it. He also there explains that he met Ms Syjaja in Albania in April 2005. They married on 11 May 2006. The marriage certificate (at [RB/7]) shows that Mr Tahiri’s nationality was stated to be Albanian. Ms Syjaja applied for entry...