Upper Tribunal (Immigration and asylum chamber), 2021-09-08, [2021] UKUT 238 (IAC) (Ciceri (deprivation of citizenship appeals: principles))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Mr C M G Ockelton, Vice President |
| Status | Reported |
| Date | 08 September 2021 |
| Published date | 16 September 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | deprivation of citizenship appeals: principles |
| Hearing Date | 30 June 2021 |
| Appeal Number | [2021] UKUT 238 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 00238 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 30 June 2021 |
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………………………………… |
Before
THE HON. MR JUSTICE LANE, PRESIDENT
MR C M G OCKELTON, VICE PRESIDENT
Between
GURI CICERI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Ms Helen Foot, instructed by BHT Sussex
For the respondent: Mr Steven Walker, Senior Home Office Presenting Officer
Following KV (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 2483, Aziz v Secretary of State for the Home Department [2018] EWCA Civ 1884, Hysaj (deprivation of citizenship: delay) [2020] UKUT 00128 (IAC), R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7 and Laci v Secretary of State for the Home Department [2021] EWCA Civ 769 the legal principles regarding appeals under section 40A of the British Nationality Act 1981 against decisions to deprive a person of British citizenship are as follows:
(1) The Tribunal must first establish whether the relevant condition precedent specified in section 40(2) or (3) of the British Nationality Act 1981 exists for the exercise of the discretion whether to deprive the appellant of British citizenship. In a section 40(3) case, this requires the Tribunal to establish whether citizenship was obtained by one or more of the means specified in that subsection. In answering the condition precedent question, the Tribunal must adopt the approach set out in paragraph 71 of the judgment in Begum, which is to consider whether the Secretary of State has made findings of fact which are unsupported by any evidence or are based on a view of the evidence that could not reasonably be held.
(2) If the relevant condition precedent is established, the Tribunal must determine whether the rights of the appellant or any other relevant person under the ECHR are engaged (usually ECHR Article 8). If they are, the Tribunal must decide for itself whether depriving the appellant of British citizenship would constitute a violation of those rights, contrary to the obligation under section 6 of the Human Rights Act 1998 not to act in a way that is incompatible with the ECHR.
(3) In so doing:
(a) the Tribunal must determine the reasonably foreseeable consequences of deprivation; but it will not be necessary or appropriate for the Tribunal (at least in the usual case) to conduct a proleptic assessment of the likelihood of the appellant being lawfully removed from the United Kingdom; and
(b) any relevant assessment of proportionality is for the Tribunal to make, on the evidence before it (which may not be the same as the evidence considered by the Secretary of State).
(4) In determining proportionality, the Tribunal must pay due regard to the inherent weight that will normally lie on the Secretary of State’s side of the scales in the Article 8 balancing exercise, given the importance of maintaining the integrity of British nationality law in the face of attempts by individuals to subvert it by fraudulent conduct.
(5) Any delay by the Secretary of State in making a decision under section 40(2) or (3) may be relevant to the question of whether that decision constitutes a disproportionate interference with Article 8, applying the judgment of Lord Bingham in EB (Kosovo) v Secretary of State for the Home Department [2009] AC 1159. Any period during which the Secretary of State was adopting the (mistaken) stance that the grant of citizenship to the appellant was a nullity will, however, not normally be relevant in assessing the effects of delay by reference to the second and third of Lord Bingham’s points in paragraphs 13 to 16 of EB (Kosovo)1.
(6) If deprivation would not amount to a breach of section 6 of the 1998 Act, the Tribunal may allow the appeal only if it concludes that the Secretary of State has acted in a way in which no reasonable Secretary of State could have acted; has taken into account some irrelevant matter; has disregarded something which should have been given weight; has been guilty of some procedural impropriety; or has not complied with section 40(4) (which prevents the Secretary of State from making an order to deprive if she is satisfied that the order would make a person stateless).
(7) In reaching its conclusions under (6) above, the Tribunal must have regard to the nature of the discretionary power in section 40(2) or (3) and the Secretary of State’s responsibility for deciding whether deprivation of citizenship is conducive to the public good.
DECISION AND REASONS
A. INTRODUCTION
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The appellant appeals under section 40A(1) of the British Nationality Act 1981 against the respondent’s decision of 6 September 2018 to deprive him of his British citizenship, pursuant to section 40(3) of that Act. The appellant arrived in the United Kingdom in 1996, claiming to come from Kosovo, using a false name. In May 1999, the appellant was granted refugee status on those false details. On 4 November 2003, he became a British citizen, in the false name and Kosovan identity.
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In 2005, the appellant returned to Albania in order to marry an Albanian citizen, who subsequently applied for entry clearance to join the appellant in the United Kingdom. In November 2005, the appellant’s wife was interviewed at the British Embassy in Tirana, subsequently being given entry clearance to join the appellant, who was still known by his false name.
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In 2007, the appellant’s wife was granted indefinite leave to remain. In order to support his wife’s application for such leave, the appellant submitted to the respondent his Albanian birth certificate, marriage certificate and Albanian family certificate, showing that he was an Albanian national.
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In July 2008, the appellant changed his name by deed poll from his false name to his real name and a passport was re-issued in his real name, though the appellant’s place of birth was still recorded as Pristina, Kosovo.
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In October 2008, the appellant sponsored the entry clearance of his mother to the United Kingdom, using the 2008 British passport, with the place of birth recorded as Pristina, Kosovo. His mother, however, provided evidence in the form of an Albanian family certificate, showing that the appellant was born in Durres, Albania. At this point, the British Embassy in Tirana alerted the respondent to the problematic state of affairs.
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In February 2009, the appellant’s wife became a British citizen. The previous year, she had borne the appellant a son, who is also a British citizen.
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On 14 March 2013, the appellant was issued by the respondent with a “nullity decision” on the basis that he had falsified elements of his identity when he applied for British citizenship. Acting on the basis of the law as it was understood to be at that time, the respondent’s stance was that, because of the appellant’s deceit, the grant to him of British citizenship had been of no effect.
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In Hysaj and Others v Secretary of State for the Home Department [2017] UKSC 82; [2018] Imm AR 699, the Supreme Court held that the scope of the “nullity” principle was narrower than the respondent considered it to be. Accordingly, in February 2018, the appellant was advised by the respondent that the latter was considering depriving the appellant of his British citizenship, as a result of fraud, false representation or concealment of a material fact. On 6 September 2018, the respondent decided to deprive the appellant of his British citizenship.
B. THE APPEAL
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The appellant’s appeal against that decision was heard at Taylor House on 13 May 2019 by First-tier Tribunal Judge Rai. In a decision dated 18 July 2019, Judge Rai dismissed the appellant’s appeal. Permission to appeal to the Upper Tribunal was refused by the First-tier Tribunal and, following renewal, by the Upper Tribunal. The Upper Tribunal’s refusal of permission was, however, quashed, following a judicial review in the High Court. Permission to appeal to the Upper Tribunal was granted by the Vice President on 4 March 2021.
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Although the hearing on 30 June 2021 was notified to the parties as being “for mention” only, both Ms Foot and Mr Walker had framed their written and oral submissions by reference to the issue of whether there was an error of law in the decision of First-tier Tribunal Judge Rai, such that the decision should be set aside. Both parties were content for the Upper Tribunal to proceed on that basis. Accordingly, what follows is our decision on that issue.
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At the time of the judicial review proceedings in the High Court, the decision of the Upper Tribunal in Hysaj (deprivation of citizenship: delay) [2020] UKUT 00128 (IAC); [2020] Imm AR 1044 was the subject of a renewed application for permission to appeal to the Court of Appeal. Subsequently, however, that renewed application was dismissed by the Court of Appeal.
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As a result, the present appellant no longer seeks to pursue his argument that First-tier Tribunal Rai erred in law in effectively...
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