Upper Tribunal (Immigration and asylum chamber), 2020-10-07, DC/00098/2019
| Jurisdiction | UK Non-devolved |
| Date | 07 October 2020 |
| Published date | 21 October 2020 |
| Hearing Date | 15 September 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DC/00098/2019 |
Appeal Number: DC/00098/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DC/00098/2019
THE IMMIGRATION ACTS
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Heard at Field House (via Skype) |
Decision & Reasons Promulgated |
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On 15 September 2020 |
On 07 October 2020 |
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Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
klodian naski
(AKA klajdi nakdi)
(ANONYMITY DIRECTION not made)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms Foot, instructed by Oliver & Hasani Solicitors
For the Respondent: Mr Clarke, Senior Presenting Officer
DECISION AND REASONS
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The appellant is an Albanian national who was born on 15 March 1985. He appeals, with permission granted by First-tier Tribunal Judge Grant-Hutchison, against a decision which was issued by First-tier Tribunal Judge Louveaux on 13 November 2019. By that decision, Judge Louveaux (“the judge”) dismissed the appellant’s appeal against the respondent’s decision to deprive him of British citizenship under s40 of the British Nationality Act 1981.
Background
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There is a lengthy history to this case and it is necessary to set it out in some detail.
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The appellant arrived in the UK as an Unaccompanied Asylum-Seeking Child (“UASC”) on 14 May 1999. He claimed asylum, stating that he was a Kosovan who had been born in Decan in the west of that country. He gave his correct date of birth but a false name: Klajdi Nakdi. He said that he was in fear of the Serbs and that he and his father had been beaten by the Serbian police on many occasions.
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On 23 February 2001, the appellant was refused asylum because the respondent concluded that there was no longer a risk to ethnic Albanians in Kosovo. The appellant was nevertheless granted Exceptional Leave to Enter (“ELE”), due to his status as a UASC, until 15 March 2003, that being the date on which he was due to attain his majority.
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The appellant seemingly applied for further leave before the expiry of his ELE. On 16 February 2008, whilst that application was still pending, he applied for a Home Office Travel Document because he wished to visit his mother, who was said to be very ill, and because he was said to be concerned that the Serbian authorities might take a year to issue him with a passport. He gave his name as Klajdi Nakdi once more, and stated that he was a Kosovan who had been born in Decan. The Travel Document was granted on 17 July 2008, and was valid until 16 July 2009
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On 26 March 2008, the respondent granted the appellant Indefinite Leave to Remain in the Nakdi identity. It is common ground that the appellant made no application prior to this decision. ILR was granted under the Legacy programme, as considered in cases such as R (Hakemi) v SSHD [2012] EWHC 1967 (Admin) and R (Geraldo) v SSHD [2014] Imm AR 400, and the letter stated that leave was being granted ‘exceptionally, outside the Immigration Rules.’
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On 22 May 2009, the applicant applied for naturalisation as a British citizen under s6(1) of the British Nationality Act 1981 (“the 1981 Act”). The application was approved and, on 20 August 2009, the appellant attended a naturalisation ceremony. In the application form and at the ceremony, he gave his name as Klajdi Nakdi. He became a British citizen in that identity.
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In 2017, the respondent undertook checks with the Albanian authorities which revealed that the applicant’s real identity was Klodian Naski, an Albanian national who was born in Tirana on 15 March 1985. Copies of the appellant’s birth certificate and family certificate were provided to the respondent by the Albanian authorities in September 2017.
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On 28 March 2019, the respondent wrote to the appellant, notifying him of the results of the enquiries I have detailed above and stating that she believed he had obtained his British citizenship as a result of fraud. She was considering whether to deprive him of his British citizenship under s40(3) of the 1981 Act. She sought a response within 21 days.
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On 16 April 2019, the appellant’s then solicitors (Malik & Malik of London NW10) responded. It was submitted, with reference to Upper Tribunal authorities (Ahmed [2017] UKUT 118 (IAC), Pirzada [2017] UKUT 196 (IAC) and Sleiman [2017] UKUT 367 (IAC)) and Chapter 55 of the Nationality Instructions, that the deception had been immaterial to the grant of citizenship and that it would be unreasonable and disproportionate to take deprivation action. It was further submitted that the appellant had been suffering from severe depression and anxiety between 2008 and 2014; that he had been a minor who was acting on the advice of others when he first claimed to be Kosovan; that he was remorseful for his actions; and that he had settled in the UK with his wife and children. Evidence in support of these assertions was provided by way of 36 enclosures.
The Respondent’s Decision
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On 13 September 2019, the respondent made a decision to deprive the appellant of his British citizenship, under s40(3) of the 1981 Act, because it had been obtained fraudulently. The respondent referred to parts of chapter 55 of the Nationality Instructions (“NIs”) and recalled that the standard of proof was the civil standard. She rehearsed the history I have described above. She noted, amongst other matters, that the appellant had confirmed that he was Kladji Nakdi, born in Decan, Kosovo, in his asylum application, his Travel Document application, his application for naturalisation and at his naturalisation ceremony. Having set out the basis upon which the respondent had concluded that the appellant’s name and nationality were not as stated, and having noted what had been said by his representatives in mitigation, the respondent concluded as follows:
“[17] It is noted that you became an adult on 15 March 2003 and yet continued the deception claiming to be a Kosovo national. You submitted further representations and obtained travel document, ILR and British citizenship as an adult. You maintained this deception throughout your time in the United Kingdom up until the point you were challenged about your identity by the Home Office. At the time you obtained ILR it was not known to the Home Office you were using a false identity or that your years of residence partly accrued through the fact that the Home Office was not aware you were an Albanian national. It is reasonable to assume that you would have continued with the fraud if it had not been put to you. Good character requirement, Section 9 of the nationality staff instructions in use on the date of your naturalisation that deals with deception and dishonesty (Annex N, Page 25-26, Section 9, 9.1.-9.2).
[18] It is apparent that you set out to deceive the Secretary of State so you could remain in the United Kingdom. You persisted with the material fraud and deception for over 20 years. Chapter 55 states “If the facts, had they been known at the time of the application for citizenship was considered, would have affected the decision to grant citizenship via naturalisation or registration the case worker should consider deprivation.” (Annex O, 55.7.1-55.7.2).
[19] For the reasons given above it is not accepted 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 consider that you provided information with the intention of obtaining a grant of status and/or citizenship in circumstances where your application(s) would have been unsuccessful if you had told the truth. It is therefore consider that the fraud was deliberate and material to the acquisition of British citizenship.
[20] It is acknowledged that the decision to deprive on the grounds of fraud is at the Secretary of State’s discretion. In making the decision to deprive you of citizenship, the Secretary of State has taken into account the following factors, which include the representations made by your legal representative in their letter dated 16 April 2019 and concluded that deprivation would be both reasonable and proportionate.”
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The letter then turned to Article 8 ECHR, s55 of the Borders, Citizenship and Immigration Act 2009 and to statelessness. She considered that deprivation was proportionate under Article 8 ECHR; that it was in line with her statutory duty under s55; and that even if the appellant was rendered stateless by the decision, that consequence was reasonable, given the seriousness of the fraud and the public interest in preserving the legitimacy of nationality. The letter concluded with reference to the appellant’s right of appeal under s40A(1) of the 1981 Act.
The Appeal to the FtT
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The appellant gave notice of his appeal on 25 September 2019. The detailed grounds rehearsed much of the same territory as the representations made in the original response to the respondent’s ‘minded to deprive’ letter. The heads of challenge were set out at the end of the grounds, however, in 10 separate sections. It was submitted, in summary, that the deception had not been material to the grant of citizenship and that the decision was not a reasonable or proportionate use of the respondent’s discretion.
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