Upper Tribunal (Immigration and asylum chamber), 2020-03-19, [2020] UKUT 128 (IAC) (Hysaj (Deprivation of Citizenship:Delay))

CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeThe Hon. Mr Justice Lane, President, Upper Tribunal Judge O'Callaghan, Upper Tribunal Judge Norton-Taylor
Publication Date17 April 2020
StatusReported
Appeal Number[2020] UKUT 128 (IAC)
SubjectDeprivation of Citizenship:Delay



Upper Tribunal

(Immigration and Asylum Chamber)

Hysaj (Deprivation of Citizenship: Delay) [2020] UKUT 00128 (IAC)


THE IMMIGRATION ACTS

Heard at Field House Decision & Reasons Promulgated

On 28-29 November 2019, 7 January 2020 On



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


1. The starting point in any consideration undertaken by the Secretary of State (“the respondent”) as to whether to deprive a person of British citizenship must be made by reference to the rules and policy in force at the time the decision is made. Rule of law values indicate that the respondent is entitled to take advice and act in light of the state of law and the circumstances known to her. The benefit of hindsight, post the Supreme Court judgment in R (Hysaj) v. Secretary of State for the Home Department [2017] UKSC 82, does not lessen the significant public interest in the deprivation of British citizenship acquired through fraud or deception.

2. No legitimate expectation arises that consideration as to whether or not to deprive citizenship is to be undertaken by the application of a historic policy that was in place prior to the judgment of the Supreme Court in Hysaj.

3. No historic injustice is capable of arising in circumstances where the respondent erroneously declared British citizenship to be a nullity, rather than seek to deprive under section 40(3) of the British Nationality Act 1981, as no prejudice arises because it is not possible to establish that a decision to deprive should have been taken under a specific policy within a specific period of time.

4. The respondent's 14-year policy under her deprivation of citizenship policy, which was withdrawn on 20 August 2014, applied a continuous residence requirement that was broken by the imposition of a custodial sentence.

5. A refugee is to meet the requirement of article 1A(2) of the 1951 UN Refugee Convention and a person cannot have enjoyed Convention status if recognition was consequent to an entirely false presentation as to a well-founded fear of persecution.

6. Upon deprivation of British citizenship, there is no automatic revival of previously held indefinite leave to remain status.

7. There is a heavy weight to be placed upon the public interest in maintaining the integrity of the system by which foreign nationals are naturalised and permitted to enjoy the benefits of British citizenship. Any effect on day-to-day life that may result from a person being deprived of British citizenship is a consequence of the that person’s fraud or deception and, without more, cannot tip the proportionality balance, so as to compel the respondent to grant a period of leave, whether short or otherwise.

DECISION AND REASONS

Introduction


  1. 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.


  1. 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


  1. 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.


  1. 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.


  1. 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.


  1. 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.


  1. 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.

  2. 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.


  1. 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...

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