Upper Tribunal (Immigration and asylum chamber), 2016-09-28, [2016] UKUT 451 (IAC) (AB (British citizenship: deprivation; Deliallisi considered))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge P R Lane |
| Status | Reported |
| Date | 28 September 2016 |
| Published date | 13 October 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | British citizenship: deprivation; Deliallisi considered |
| Hearing Date | 08 June 2016 |
| Appeal Number | [2016] UKUT 451 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
AB (British citizenship: deprivation; Deliallisi considered) Nigeria [2016] UKUT 00451 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 16 July 2015 (Error of Law) and 29 April 2016 |
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Final Submissions: 8 June 2016 |
………………………………… |
Before
UPPER TRIBUNAL JUDGE PETER LANE
Between
AB
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms S. Naik and Ms B. Smith, Counsel, instructed by Islington Law Centre
For the Respondent: Mr I. Jarvis, Senior Home Office Presenting Officer
(1) As held in Deliallisi (British citizen: deprivation appeal: scope) [2013] UKUT 00439 (IAC), in an appeal under section 40A of the British Nationality Act 1981 the Tribunal is required to determine the reasonably foreseeable consequences of deprivation.
(2) Whilst the Tribunal considering a section 40A appeal cannot pre-judge the outcome of any future legal challenge that the appellant might bring against a decision to remove, following deprivation, the Tribunal must nevertheless take a view as to whether, from its present vantage point, there is likely to be force in any future challenge: cf section 94 of the Nationality, Immigration and Asylum Act 2002 and paragraph 353 of the immigration rules. The stronger the potential case, the less likely it will be that the reasonably foreseeable consequences of deprivation will include removal.
(3) A person who had indefinite leave to remain in the United Kingdom, immediately before acquiring British citizenship, does not thereby become entitled to indefinite leave to remain, upon being deprived of such citizenship under section 40 of the 1981 Act. Leave to remain is effectively extinguished by becoming a British citizen, since the system of controls under the Immigration Act 1971 does not apply to British citizens.
(4) In a section 40A appeal, an appellant may rely on the ground that deprivation would have a disproportionate effect, as regards the rights flowing from citizenship of the EU, only if, on the facts, there is a “cross-border” element. The finding to the contrary in Deliallisi was reached per incuriam in the judgment of the Court of Appeal in G1 v Secretary of State for the Home Department [2012] EWCA Civ 867.
DECISION AND REASONS
A. The appellant’s history
1. The appellant was born in Nigeria in 1961. She says her parents were killed in the Biafran war, in which she also suffered, being raped by a soldier and later by her brother-in-law. Each time she became pregnant, her babies were taken from her at birth. She was subsequently raped at a police station.
2. The appellant arrived in the United Kingdom late 1987, carrying class A drugs. She was detected, charged and convicted for drug trafficking. The appellant claims she was unaware that the package she had contained drugs. No one concerned in the present proceedings has seen any sentencing remarks; but the appellant was sentenced to seven years’ imprisonment.
3. The appellant was sent to an open prison, but she absconded. After this she survived by begging and sleeping rough, before meeting an Ivorian national, with whom (and whose children) the appellant lived for three years. After the Ivorian national disappeared, the appellant was left looking after his children.
4. In 1991, the appellant claimed asylum in the United Kingdom, naming the Ivorian national and his children as her dependants. She claimed to be Ivorian. The appellant says that this was because she was frightened of returning to prison and then being deported to Nigeria.
5. Around the same time, it seems, the appellant learned from someone at her church that the appellant’s niece SA, and nephew, H, had arrived in the United Kingdom in 1991. The appellant took in SA and H. SA gave birth to a son, S, when she was 15. S has learning difficulties, which make living on his own a challenge, despite the fact that he is now an adult. SA later moved out of the appellant’s home, followed by H. SA took S with her. In 1996, the Ivorian national reappeared and took his children away from the appellant. Meanwhile, SA became involved with drugs and S was taken into care.
6. Although the appellant’s asylum claim had been unsuccessful, she was granted indefinite leave to remain by the respondent in 2003 in her false identity. The appellant enrolled for a nursing diploma and also worked. The appellant had previously suffered bouts of depression, whilst in the United Kingdom, and in 2003 she received antidepressant medication besides making twice-weekly visits to a psychiatrist for one year. The appellant was, at this time, said to be suicidal.
7. Around this time, SA (who was now taking heroin) became pregnant, giving birth to a daughter, Z, in February 2009. SA was not allowed to have the baby with her, so Z lived with the appellant.
8. In September 2009, SA, in revenge for losing Z to the appellant, informed the police about the appellant’s background, including her escape from prison. The appellant was sentenced to eight months’ imprisonment for the escape. The sentencing judge noted that, in the intervening twenty years, the appellant had “very much redeemed yourself”. He noted that she had taken another identity, qualified as a nurse and looked after two children.
9. Whilst in prison, the appellant self-harmed and took an overdose. She was said to have been kept on suicide watch on a regular basis. During her imprisonment, S and Z were taken into foster care. Upon her release, the appellant (having nowhere else to go) lived with H in his studio flat for around a year. In March 2011 she was moved to her own accommodation and S came back to live with her until November 2012. S then moved into independent supported accommodation, but continued to see the appellant on a regular basis. The same was true of H.
10. The appellant conducted lengthy court proceedings in a bid to be allowed to foster Z but this was unsuccessful and Z was adopted in 2012. So too was another daughter of SA, whom the appellant had also attempted, by legal proceedings, to foster.
11. The appellant reported herself to the nursing authorities who suspended her from practising as a nurse for five years (until 2017).
B. Deprivation of citizenship: decisions and proceedings
12. In 2010, the respondent informed the appellant of her liability to deportation as a result of the drug trafficking offence. The subsequent deportation proceedings have, however, been terminated. In March 2013, the respondent wrote to the appellant to state that the appellant was to be deprived of her British citizenship as a result of the deception employed by the appellant in its acquisition. Shortly afterwards, the appellant was accommodated at the Maytree Sanctuary for those said to be “in suicidal crisis”. She was later admitted to hospital for a “non-significant” overdose with “suicidal intent”.
(a) 2013 appeal decision
13. The appellant appealed to the First-tier Tribunal under section 40A of the British Nationality Act 1981 against the respondent’s decision to deprive her of British citizenship. Following a hearing at Taylor House on 16 December 2013 before Judge Beg, the appellant’s appeal was dismissed. Judge Beg heard oral evidence from H. She found that H (who is the appellant’s nephew) and S (who is H’s nephew) had a close relationship with the appellant. She accepted that the appellant had been a mother figure to both, although they were now adults.
14. Judge Beg also considered a report by Lucy Kralj, a psychotherapist and nurse. Miss Kralj was of the opinion that separating the appellant from her loved ones and a professional support network system would be highly detrimental to her mental health and safety. Judge Beg accepted that the appellant had been diagnosed as suffering from “complex PTSD”. The judge concluded that deprivation would not, however, in the circumstances amount to a breach of Article 8 of the ECHR.
(b) 2014 appeal decision
15. In March 2014, the Upper Tribunal set aside the decision of Judge Beg, following the finding of an error of law, and remitted the matter to the First-tier Tribunal for a fresh decision to be made by a panel chaired by a Designated Judge. By a decision dated 2 October 2014, the First-tier Tribunal (Designated Judge Appleyard and Judge Talbot) dismissed the appellant’s appeal.
16. For reasons that will become apparent, it is necessary to spend some time on the findings of the panel. At paragraph 26, the panel rejected the contention that the appellant had been the victim of trafficking into the United Kingdom. They were also concerned about the...
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