Upper Tribunal (Immigration and asylum chamber), 2020-03-19, DC/00035/2018
| Jurisdiction | UK Non-devolved |
| Date | 19 March 2020 |
| Published date | 02 April 2020 |
| Hearing Date | 07 January 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DC/00035/2018 |
Appeal Number: DA/00035/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DC/00035/2018
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 28-29 November 2019, 7 January 2020 |
On 19 March 2020 |
Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE O’CALLAGHAN
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
Between
DINJAN HYSAJ
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the Appellant: Sonali Naik QC, Helen Foot, Counsel, instructed by Oliver & Hasani Solicitors
For the Respondent: Robert Palmer QC, Julia Smyth, Counsel, instructed by Government Legal Department
DECISION AND REASONS
Introduction
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This is an appeal against the decision of Judge of the First-tier Tribunal Griffith (‘the Judge’), issued on 26 October 2018, by which the appellant’s appeal against the decision of the respondent to deprive him of British citizenship under section 40(3) of the British Nationality Act 1981 (‘the 1981 Act’) was refused.
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By way of a decision dated 19 November 2018 Judge of the First-tier Tribunal Lambert granted the appellant permission to appeal to this Tribunal on all grounds.
Facts
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The appellant was born in 1977 and is a citizen of Albania. He entered this country in 1998 and claimed asylum. He provided the United Kingdom authorities with his correct name, but falsely claimed to be a citizen of the Federal Republic of Yugoslavia and to have been born and resided in the autonomous province of Kosovo, which at the time he entered this country was subject to armed conflict. He falsely claimed to have been born in 1981 and presented to the British authorities as an unaccompanied minor escaping the conflict. He was accepted to be a refugee and granted indefinite leave to remain (‘ILR’) in 1999. In 2004 he applied for and was granted naturalisation as a British citizen, using the same personal details he had provided in his application for international protection. It is common ground between the parties that the appellant obtained his British citizenship by fraud. He was issued with a British passport in 2004.
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The appellant travelled to Albania and married his wife, a citizen of Albania, on 18 July 2007. Eight days later his wife submitted an application to the British Embassy in Tirana for entry clearance as the spouse of a British citizen. She was interviewed on 14 September 2007 and disclosed the appellant’s true date of birth and that he was born in Shkoder, Albania.
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On 27 August 2008, the respondent wrote to the appellant and notified him that she was considering depriving him of his British citizenship. The appellant admitted his deception by means of a letter sent to the respondent by his solicitors on 15 September 2008. Correspondence flowed between the appellant’s solicitors and the respondent, with the appellant being informed that a decision as to deprivation was likely to be made by the end of March 2010.
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In June 2010 the appellant fell into a disagreement over a spilt pint with another man in a public house in Hemel Hempstead. Staff sent him out of the building into the beer garden to calm down. Having smoked a cigarette, he re-entered the building and, with a pint glass in his hand, tapped the shoulder of his victim, who turned around to receive the pint glass in his face, which shattered on impact. The victim sustained several cuts, including one that went all the way through his cheek and cut the back of his tongue. He required over forty stitches and was left with a degree of scarring. The appellant was convicted by a jury at St Albans’ Crown Court and on 20 May 2011 HHJ Catterson sentenced to him to five years’ imprisonment for wounding with intent to do grievous bodily harm and 12 months’ imprisonment for assault occasioning actual bodily harm, concurrent.
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On 7 July 2012, whilst a serving prisoner, the appellant reached the 14-year mark of his residence in this country. The respondent wrote to the appellant on 13 February 2013 informing him that his grant of nationality was a nullity as he had used false particulars when making his application. On 8 April 2013 the respondent served notice of her intention to deport the appellant and on 9 April 2013 the application of the appellant’s wife for entry clearance was refused. The appellant was released from custody on 18 November 2013. His wife entered this country clandestinely in 2014, with their eldest child who is a British citizen by descent. Upon their arrival they resided with the appellant. Two further children were born in this country and all three children continue to possess British citizenship.
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The appellant challenged the decision to declare the grant of his British citizenship a nullity and was ultimately successful before the Supreme Court: R (Hysaj) v. Secretary of State for the Home Department [2017] UKSC 82; [2018] 1 W.L.R. 221.
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The respondent withdrew her decision to treat the appellant’s British citizenship as a nullity on 10 February 2018 and subsequently issued a decision on 3 July 2018 to deprive the appellant of his British citizenship under section 40(3) of the 1981 Act. The respondent detailed that the appellant would not have been recognised as a refugee and granted ILR on the ground of possessing a well-founded fear of persecution as a Kosovan if his Albanian nationality had been known. Further, the appellant was only able to apply for citizenship on the basis that he possessed settled status arising from fraud. Consequently, the respondent decided that the exercise of deception was material to the grant of citizenship. The decision detailed, inter alia;
‘At the time your client’s deception had been discovered in 2007, your client had not been present in the UK for more than 14 years. Furthermore, it is noted that your client was sentenced to 5 years in prison on 20/05/2011. At that time, given he had less than 14 years residence, applying the principle of discounting periods of imprisonment from the residence calculation for long residence, your client would not have been considered to have accrued 14 years residence until significantly later than 2014 when the 14 year concession in the nationality guidance was withdrawn. As such, the assertion that your client should now benefit from this concession is not accepted.’
…
‘Your client fraudulently obtained his leave to remain and British citizenship and maintained this deception until the fraud was revealed in 2007. It is also noted that he also received a sentence of 5 years imprisonment for grievous bodily harm and assault occasioning actual bodily harm in 2011. It is not accepted that your client should now be considered to be of good character simply on the basis of the time that has passed.’
…
‘For the reasons given above it is not accepted that there is a plausible, innocent explanation for the misleading information which led to the decision to grant citizenship. Rather, on the balance of probabilities, it is considered that your client provided information with the intention of obtaining a grant of status and/or citizenship in circumstances where his application would have been unsuccessful if your client had told the truth. It is therefore considered that the fraud was deliberate and material to the acquisition of British citizenship.’
The appellant’s appeal to the First-tier Tribunal
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The appellant appealed to the First-tier Tribunal. Following a hearing in October 2018, the Judge refused the appeal. As to the issue of delay, the Judge decided at [73]:
‘On 13 February 2013, the appellant was informed that those appeals had not yet been determined. It appears, therefore, that the respondent in order to make a decision examined the case law and, on the basis of the law as it then stood, decided to annul his citizenship. The appellant exercised his right of judicial review and in December 2017 it was determined that the decisions in the Court of Appeal were wrong. Albeit, therefore, the decision of February 2013 was unlawful, the respondent acted in accordance with the law at the time. Although this case has been ongoing for ten years, I am not satisfied that there has been any unreasonable or unaccountable delay on the part of the respondent that falls within the type contemplated in EB (Kosovo) [2008] UKHL 41.’
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The Judge considered the reasonably foreseeable consequences of the deprivation of the appellant’s British citizenship and found at [69]-[71]:
‘I consider it reasonably foreseeable that the respondent would not take action to remove or deport the appellant but would grant him leave taking into account his family circumstances. He was granted ILR in the past and, whilst he would not automatically become entitled to such leave on deprivation, there are factors in his favour which make it less likely that he would be removed. These include the fact that his wife has very recently been granted limited leave to remain in the UK and is entitled to work (but has chosen not to do so) and that he has three British citizen children who are entitled to the benefits of such citizenship. It is recognised that it is in the best interests of children to be brought up by...
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