Upper Tribunal (Immigration and asylum chamber), 2021-10-11, DC/00091/2019 & DC/00127/2019
| Jurisdiction | UK Non-devolved |
| Date | 11 October 2021 |
| Published date | 15 November 2021 |
| Hearing Date | 14 July 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DC/00091/2019 & DC/00127/2019 |
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Appeal Numbers: DC/00091/2019 DC/00127/2019 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: DC/00091/2019
DC/00127/2019
THE IMMIGRATION ACTS
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Heard remotely at Field House |
Decision & Reasons Promulgated |
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On 23 November 2020 and 14 July 2021 Written submissions received on 22 and 30 March 2021
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On 11 October 2021 |
Before
UPPER TRIBUNAL JUDGE BLUM
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
ZA AND ba
(ANONYMITY DIRECTION MADE)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For BA and ZA: Ms S. Naik, QC, and Ms M. Sardar (23 November 2021) and
Mr P. Saini (14 July 2021), counsel, instructed by Oliver & Hasani
For the Secretary of State: Ms S. Cunha, Senior Home Office Presenting Officer
DECISION AND REASONS
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These proceedings concern the scope of a tribunal’s jurisdiction in an appeal under section 40A of the British Nationality Act 1981 (“the 1981 Act”) against a decision to make an order depriving a person of their British citizenship under section 40(3) of that Act, in light of the Supreme Court’s judgment in R (oao Begum) v Secretary of State for the Home Department [2021] UKSC 7.
Procedural background
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ZA and BA are joint Albanian-British citizens. They are wife and husband respectively. They naturalised as British citizens on 18 December 2009 and 10 August 2012 respectively. On 22 August 2019 and 14 November 2019, the Secretary of State notified ZA and BA of her decision to deprive each of them of their British citizenship pursuant to section 40(3) of the 1981 Act. They each appealed to the First-tier Tribunal. Their appeals were heard separately, for reasons that are not clear.
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In a decision promulgated on 7 January 2020 following a hearing on 24 October 2019, Tribunal Judge Chohan dismissed ZA’s appeal. In a decision promulgated on 29 January 2020, following a hearing on 15 January 2020, Tribunal Judge Howorth allowed BA’s appeal. ZA appealed against the decision of Judge Chohan. The Secretary of State appealed against Judge Howorth’s decision. Permission to appeal was granted in respect of both sets of proceedings.
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The appeals were linked in this tribunal by the order of Upper Tribunal Judge Rintoul. We heard the linked appeals on 23 November 2020 (error of law hearing) and on 14 July 2021 (resumed hearing). On 23 November 2020, ZA and BA were represented by Ms S. Naik, QC, and on 14 July 2021 they were represented by Mr P. Saini, counsel. The Secretary of State was represented by Ms S. Cunha, Senior Home Office Presenting Officer, throughout.
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On 26 February 2021, shortly before we were due to promulgate our “error of law” decision, the Supreme Court handed down its judgment in Begum, concerning the role of the Special Immigration Appeals Commission (“SIAC”) in an appeal against a decision to deprive a person of their British citizenship under section 40(2) of the 1981 Act. We permitted the parties to make post-hearing submissions in writing on the impact, if any, of the judgment on the role of a tribunal in this jurisdiction during an appeal under section 40A of the 1981 Act. We are grateful for Ms Naik’s additional written submissions on behalf of ZA and BA, received on 22 March 2021, and those of Ms Cunha, on behalf of the Secretary of State, received on 30 March 2021. In addition, Mr Saini and Ms Cunha provided skeleton arguments ahead of the hearing on 14 July 2021 addressing the issue further, for which we are also grateful.
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In our “error of law” decision promulgated on 30 April 2021, we found that, on both the pre- and post-Begum understanding of the role of a tribunal on an appeal under section 40A of the 1981 Act, the decisions of Judge Chohan and Judge Howorth involved the making of an error of law, and set the decisions aide, preserving Judge Chohan’s findings of fact. We summarise our reasons for doing so at paragraphs 88 and 89, below.
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We directed that the appeals be reheard in this tribunal and set out our reasons for dismissing both appeals in this decision, following the resumed hearing on 14 July 2021.
Factual background
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ZA and BA arrived in this country in 2000. BA claimed asylum on the basis that he was a Macedonian citizen of Albanian ethnicity who was at risk of being persecuted as a result of the conflict in the former Yugoslavia. ZA was listed as a dependent to the claim, on the basis that she, too, was a citizen of Macedonia.
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The claim to be Macedonian was false, and had been made, as BA and ZA now accept, in order to deceive the Secretary of State into recognising the family as refugees, with BA as the lead claimant. In this decision, we refer to the false claim by ZA and BA to be Macedonian as “the Macedonian deception”.
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The Secretary of State initially incorrectly treated BA’s asylum claim as having been withdrawn, but later rectified the position, and informed BA that the claim remained pending. On 28 June 2007, the Secretary of State wrote to BA highlighting a statement made to Parliament in July 2006 by the then Home Secretary concerning the backlog of “unresolved asylum cases”, stating that Home Department had commenced “a programme to deal with the legacy cases such as yours”. The letter invited BA to complete a Legacy Casework questionnaire. This BA did on 3 July 2007, again stating that his nationality, and that of ZA and their two children, each of whom had been born in this country in February 2001 and June 2002, was “Macedonian”.
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BA’s questionnaire response highlighted the length of time BA and the family had been waiting for his asylum claim to be determined, contending that the delay had breached their rights under Article 8 of the European Convention on Human Rights (“the ECHR”). BA also highlighted how his asylum application had been “wrongly refused and later withdrawn”, referring to the Secretary of State’s earlier mistaken assertion that the claim had been withdrawn as outlined above.
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On 7 March 2008, the Secretary of State informed BA that he, ZA, and their two children, were each being granted indefinite leave to remain. The letter stated:
“Your case has been reviewed. Having fully considered the information you have provided, and because of the individual circumstances of your case, it has been decided to grant you indefinite leave to remain in the United Kingdom. This leave has been granted exceptionally, outside the immigration rules. This is due to your length of residence in the United Kingdom.
Your dependents listed below have been granted leave in line…”
The letter proceeded to list ZA, and the couple’s two children, as dependents. It specified each of their nationalities as “Macedonian (Former Yugoslav Republic of)”.
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On 12 October 2009, ZA applied to naturalise as a British citizen. She was granted British citizenship on 18 December 2009, in her identity as ZA, with her given date of birth, on the basis she had been born in Gradec, Macedonia (Former Yugoslav Republic of).
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On 13 April 2012, BA applied to naturalise as a British citizen, and was granted British citizenship on 10 August 2012, in the identity he provided which purported that he had also been born in Gradec. An earlier application for naturalisation, dated 22 September 2009, had been refused, as BA had an unspent conviction, so his successful citizenship application was his second application.
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In her decision letters dated 22 August and 14 November 2019, the Secretary of State informed ZA and BA that as a result of investigations which revealed their true (Albanian) identities, she considered that they had engaged in fraud that was material to their acquisition of British citizenship. She considered that it would be appropriate to exercise her discretion to deprive ZA and BA of their citizenship, that to do so would not breach their rights under Article 8 of the ECHR, would be compatible with the best interests of their minor children, and would not render them stateless.
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In ZA’s decision, having set out the facts as summarised above, the Secretary of State said the following, at [14]:
“You made an application to naturalise as a British citizen which was received by the Home Office on 12 October 2009. Within this you gave your details as [ZA] born 2 June 1978 in Gradec, Macedonia. You failed to declare any previous names… Section 3 dealt with the good character requirement. Question 3.12 asked if you had engaged in any other activities which might indicate that you may not be considered a person of good character. You answered ‘No’ to this. You confirmed you had read the guide Naturalisation as a British Citizen. You signed the declaration acknowledging you were aware that to give false information knowingly or recklessly is a criminal offence and declaring that the information in the application was correct. On this basis you were granted British citizenship and naturalised on 18 December 2009 in the identity of [ZA] born 2 June 1978 in Gradec, Macedonia (Former Yugoslav Republic of).”
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The decision outlined the representations advanced by those representing ZA against deprivation. ZA claimed that...
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