Upper Tribunal (Immigration and asylum chamber), 2024-09-25, UI-2023-005327

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-005327
First-tier Tribunal No: DC/50103/2022
LD/00047/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 25 September 2024

Before

UPPER TRIBUNAL JUDGE BLUNDELL
UPPER TRIBUNAL JUDGE PINDER

Between

SINAN RRUSHKU
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Theo Lester, instructed by A J Jones Solicitors
For the Respondent: Steve Walker, Senior Presenting Officer

Heard at Field House on 19 September 2024


DECISION AND REASONS

1. The appellant appeals with the permission of Deputy Upper Tribunal Judge Metzer KC against the decision of First-tier Tribunal Judge Wilson. By his decision of 2 October 2023, Judge Wilson (“the judge”) dismissed the appellant’s appeal against the respondent’s decision to deprive him of his British citizenship under section 40(3) of the British Nationality Act 1981.

Background

2. The full history was set out by the First-tier Tribunal and need not be rehearsed in our decision. The following suffices for the purposes of this appeal.

3. The appellant is an Albanian national who was born on 14 April 1986. When he arrived in the United Kingdom and claimed asylum in March 2004, however, he held himself out to be a national of Macedonia who was born on 14 April 1987. He used that nationality and date of birth throughout his dealings with the respondent up to and including his application for naturalisation. He secured limited and then indefinite leave to remain before being naturalised in that identity on 22 November 2011.

4. The respondent subsequently learned of the appellant’s true identity and notified him of her intention to deprive him of his British citizenship. Having received representations from the appellant against that course of action, the respondent made the decision to deprive on 6 May 2022. She concluded that the applicant had obtained British citizenship by means of fraud, false representation or concealment of material facts and that deprivation action under section 40(3) was warranted, and that it was lawful under section 6 of the Human Rights Act 1998.

5. The appellant appealed to the First-tier Tribunal. He was represented at his appeal hearing by Ms Harvey of counsel. The respondent was represented by a Presenting Officer. The judge heard oral evidence from the appellant and his wife and submissions from the advocates before reserving his decision.

The Decision of the First-tier Tribunal Judge

6. In his reserved decision, at [11]-[14], the judge directed himself in accordance with a range of authority including R (Begum) v SSHD [2021] UKSC 7, [2021] AC 765, Chimi (deprivation appeals; scope and evidence) [2023] UKUT 115 (IAC), [2023] Imm AR 1071 and Muslija (deprivation; reasonably foreseeable consequences) Albania [2022] UKUT 337 (IAC).

7. At [17]-[32], under the sub-heading “The precedent facts”, the judge set out what he described as “the history of the appellant’s deception” before evaluating the appellant’s submission that the deception was not material to the naturalisation decision. The judge rejected that submission. He held that the appellant had been granted discretionary leave because he was a minor, whereas he would not have been granted leave if he had been an adult: [25]. In the same paragraph, the judge concluded that “the deception which secured the appellant’s initial leave as an unaccompanied minor is material to the grant of citizenship.” He concluded, applying R (Hakemi) v SSHD [2012] EWHC 1967 (Admin), that the deception would also have been material to the grant of ILR under the Legacy programme, which had required “a holistic approach in which positive and negative factors were balanced when making a decision pursuant to the legacy scheme”. The judge concluded that “deception was a relevant consideration” in the exercise and that it could not be said to be immaterial: [26].

8. The judge concluded that the focus of the appeal must in any event be “upon the declarations that were made in the application for naturalisation … [including] declarations concerning statutory good character requirements”: [28]. He recalled the statutory good character requirement in s6(1) of the 1981 Act and concluded that “instances of dishonesty necessarily go to the question of good character”: [29]-[31]. At [32], the judge reached the following conclusion:

“In this appeal the Appellant established his good character, a precondition to the grant of naturalisation, by failing to disclose his true identity and the deception that he had undertaken for a period of over 14 years whilst an adult and during numerous interactions with the Home Office. Accordingly, on this alternative analysis I again find that the Respondent's decision that citizenship was by one or more of the means specified in section 40(3) is lawful. The Respondent has reached conclusions about the precedent facts that are supported by evidence and are based upon a view of the evidence that could reasonably be held by her. The Respondent was entitled to assess the deception as material and in this case determinative of the condition precent having been met. In coming to this...