Upper Tribunal (Immigration and asylum chamber), 2021-05-10, DC/00061/2018
| Jurisdiction | UK Non-devolved |
| Date | 10 May 2021 |
| Published date | 24 May 2021 |
| Hearing Date | 21 April 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DC/00061/2018 |
Appeal Number: DC/00061/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DC/00061/2018
THE IMMIGRATION ACTS
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Heard at Bradford (via Skype) |
Decision & Reasons Promulgated |
|
on 21 April 2021 |
On 10 May 2021 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
LIRIM KOVACI
(Anonymity direction not made)
Respondent
Representation:
For the Appellant: Mrs Pettersen, Senior Home Office Presenting Officer.
For the Respondent: Mr Hodgetts instructed by Paragon Law Solicitors.
DECISION AND REASONS
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The Secretary of State appeals with permission a decision of First-tier Tribunal Judge Flynn promulgated on 1 July 2019 in which the Judge allowed Mr Kovaci’s appeal against the Secretary of State’s decision of 12 October 2018 to deprive him of his British citizenship pursuant to section 40 British Nationality Act 1981 on the basis the decision was not in accordance with the law.
Background
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Mr Kovaci arrived in the United Kingdom on 25 June 1999 and claimed asylum stating he was a citizen of Kosovo who had fled persecution from the Serbian authorities. That claim was refused but Mr Kovaci was granted four years Exceptional leave to remain on 28 April 2001.
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On 10 September 2005, Mr Kovaci was granted Indefinite Leave to Remain (ILR), and on 29 November 2006 was issued with a Certificate of Naturalisation as a British citizen.
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On 11 June 2009 Mr Kovaci’s wife submitted an application for entry clearance. The date of their marriage was 3 March 1999, and they have a daughter born on 4 December 2004.
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As a result of the application the British Embassy in Tirana advised the Home Office that it had in its possession an Albanian marriage certificate clearly showing Mr Kovaci to be a citizen of Albania.
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As a result, the Secretary of State wrote to Mr Kovaci on 30 September 2009 stating he had reason to believe that he obtained his status as a British citizen as a result of fraud.
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By letter dated 15 October 2019 Mr Kovaci’s legal representatives, Duncan Lewis, submitted a statement in which Mr Kovaci denied making any false representations and claiming that in his asylum claim he gave his correct details.
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On 22 January 2013 Tuckers Solicitors wrote to the respondent advising that Mr Kovaci had admitted he was born in Albania but expressing regret for providing incorrect details and arguing any deprivation of citizenship would be disproportionate as Mr Kovaci had lived in the United Kingdom for almost 14 years and was integrated.
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By letter dated 21 March 2013 the Secretary of State stated the grant of citizenship was null and void as it was based on false information, and on 23 October 2013 a decision was made to revoke Mr Kovaci‘s ILR.
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Following the decision of the Supreme Court in Hysaj [2017] UKSC 82 the Secretary of State accepted Mr Kovaci was a British citizen and that the nullity decision was wrong in law.
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The decision under challenge before the Judge is the later decision of the 12 October 2018 in which it was said by the Secretary of State that having exercised discretion it was decided to deprive Mr Kovaci of his British citizenship on the grounds of fraud, even having taken into account the period of time that had elapsed since Mr Kovaci had been first contacted about his citizenship status of nearly 10 years and the fact the Secretary State awaited clarification of the law before taking the correct decision. The Judge noted the Secretary of State’s reasoning including it being stated that had she known that Mr Kovaci had obtained his ILR to remain fraudulently as a direct result of maintaining false representations he would have failed the “Good Character” requirement for naturalisation.
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Having considered the documentary and oral evidence and have heard submissions from the advocates the Judge sets out the core findings between [40 – 48] of the decision under challenge which are in the following terms:
“40. I listened carefully to the appellant’s evidence, but I do not find him to be a credible or reliable witness. In his oral evidence, he continued to maintain that he had not intended to make false statements and either did understand what he was signing; or that he did so only because he was following advice from more knowledgeable people. I do not accept that any of his explanation is credible. In particular, I do not find it credible that he told his lawyer in October 2009 that he had lied about his country of origin when he claimed asylum, but that she prepared a statement denying this, which he signed without reading. I find his avoidance of any responsibility for the fact that he continued his deception for over 13 years casts significant doubt on his general credibility. Nevertheless, the appellant’s credibility has limited relevance to his appeal.
41. Mr Hodgetts submitted that the appellant met the respondent’s current guidance because of his long residence and the fact that he would have qualified under the guidance applicable after his appeal was allowed in May 2014, the respondent having conceded that the decision of March 2013 was defective.
42. The respondents Nationality Instructions, Chapter 55 sets out the guidance in place between 19 October 2012 and 27 July 2017 [A244-260]:
“55.7.2.5. In general the Secretary of State or not to deprive of British citizenship in the following circumstances
…
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If a person has been resident in the United Kingdom for more than 14 years. We will not normally deprive of citizenship”.
43. I appreciate that, had the respondent taken account of this guidance in making the decision of 21 March 2013, it would not have availed the appellant, who had resided in the UK since 25 June 1999, less than 14 years at that time. However, the respondent conceded at the appeal hearing on 29 April 2014 [A175-176] that the March 2013 decision was defective [6] and undertook to make a fresh decision [8]. The decision of the First-tier Tribunal Judge was promulgated on 19 May 2014 [A174]. By that time, the appellant had accrued over 14 years residence.
44. Chapter 55 set out aggravating factors, none of which was applicable in the appellant’s case. Although they are expressly stated not to be exhaustive, I consider it significant that the appellant did not make any false representations at any point, except in respect of his claimed country of origin; and has no criminal record.
45. Mr Ojo submitted that the current version of Chapter 55 [A209-23] is the appropriate guidance to follow. It provides only three reasons for not depriving someone of citizenship, none of which applies to the appellant; and it states expressly:
“55.7.6 length of residence in the UK alone will not normally be a reason not to deprive a person of their citizenship.”
46. I agree with Mr Hodgetts that the appellant is entitled to rely on the respondent’s failure to make a lawful decision, taking account of the appropriate guidance, in a timely manner. The failure to make a decision until October 2018, more than four years after withdrawing his March 2013 decision, is a relevant matter, but the respondent did not take account of the guidance applicable during the long period of delay. I also agree with Mr Hodgetts that this is a historic injustice that should have been considered as an additional reason for concluding that the appellant should not be deprived of his citizenship, in addition to the long period of residence.
47. I have considered Mr Ojo’s submissions regarding the appellant’s lack of good character, but I do not consider that this is a material issue in the circumstances because the guidance is devised specifically for people who have gained some form of status through misrepresentation or fraud. I distinguish this appeal from Deliallisi because the guidance did not apply in that case.
48. I therefore conclude that the respondent’s decision was not in accordance with the law. I note that it was for this reason that the respondent withdrew the deprivation decisions in two appeals linked with Deliallisi, which fortifies my conclusion.”
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The Secretary of State sought permission to appeal, which was granted by Upper Tribunal Judge Martin, sitting as a judge for the First-tier Tribunal, on 23 July 2019. The operative part of the grant being in the following terms:
“3. It is arguable, as set out in detail in the grounds, that the Judge has erred in applying a policy that was withdrawn in 2014; in conflating the earlier decision that the citizenship was a nullity (withdrawn after the Supreme Court’s decision in Hysaj [2018] UKSC 82, and the decision under appeal, to deprive him of that citizenship; in finding a historic injustice when none was applicable in this case and in erroneously finding that the Secretary of State had delayed in making the decision under appeal when the Secretary of State has acted properly after the SC had ruled in Hysaj.”
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The Secretary of State relied upon four grounds of appeal together with additional written submissions. Mr Hodgetts filed a skeleton argument which included his Rule 24 reply which was perfected by further pleadings received shortly before the error of law hearing. Both advocates made their oral submissions in support of...
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