Upper Tribunal (Immigration and asylum chamber), 2021-11-29, DC/00108/2019
| Jurisdiction | UK Non-devolved |
| Date | 29 November 2021 |
| Published date | 14 December 2021 |
| Hearing Date | 22 November 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DC/00108/2019 |
Appeal Number: DC/00108/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DC/00108/2019
THE IMMIGRATION ACTS
|
Heard at Manchester CJC (via Microsoft Teams) |
Decision & Reasons Promulgated |
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On 22 November 2021 |
On 29 November 2021 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
SADAR ABDULLAH HAMASAID
(Anonymity direction not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms S Khan instructed by All Nations Legal Services.
For the Respondent: Mr A McVeety, a Senior Home Office Presenting Officer.
DECISION AND REASONS
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By a decision promulgated on the 20 April 2021, attached hereto at Annex A, the Upper Tribunal set aside a decision of the First-tier Tribunal.
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The matter returns to the Upper Tribunal to enable it to substitute a decision to either allow or dismiss the appeal.
Discussion
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The background to this appeal is set out at [3 – 7] of the Error of Law decision at Annex A and does not need repeating.
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A preserved findings from the decision of the First-tier Tribunal is that Mr Hamasaid has committed fraud for the reasons identified by the First-tier Tribunal Judge at [23] of the earlier decision, where it is written:
23. In conclusion, I find that the Appellant’s place of birth is correctly recorded as Sulamaniyah on the documents provided with his application for his daughter’s passport. I do not accept that the Appellant did not know about this and I find that he fraudulently maintained he originated from Diyala in the belief that this would be of benefit to him in his asylum claim. I find that the Respondent ‘s has satisfied the burden of showing that the Appellant committed fraud.
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In support of the appellant’s claim Ms Khan submitted a skeleton argument in the following terms:
INTRODUCTION
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On the 12 April 2021 Upper Tribunal Judge Hanson set aside the determination of First-tier Tribunal Judge Myers. The following findings were preserved:
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The Appellant committed a fraud for the reasons identified by the FTT, namely that the Appellant fraudulently maintained he originated from Diyala in the belief that this would be of benefit in his asylum claim (para. 23).
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The Appellant’s immigration history
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The presence of family members both in the United Kingdom and Iraq
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The Appellant was born in Sulaymaniyah (para. 23)
LEGAL FRAMEWORK
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The Tribunal has issued guidance on dealing with deprivation of citizenship appeals in the case of Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238 that states:
“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 128 (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.
SUBMISSIONS
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In relation to the first issues, the Tribunal would need to consider whether the relevant condition precedent specified in section 40 (3) of the British Nationality Act 1981 exists for the exercise of the discretion whether to deprive the Appellant of British citizenship.
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The Appellant would submit that the relevant condition precedent has not been established in this case. The Respondent has not properly taken account of all the relevant factors she should have done, namely how leave was granted under legacy and the materiality of the deception in light of the previous adverse finding on the Appellant’s credibility.
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The finding by Judge Myers was that the Appellant had fraudulently stated he was born in Diyala to assist his asylum claim. This tactic ultimately failed. The Appellant would submit the particular deception was not material for his grant of leave or nationality. The Appellant would continue to rely on the skeleton argument submitted in the FTT that sets out why it was not relevant to his current grant. Namely that at the time of the assessment of the Appellant’s case under legacy, the claim to be from a non-removable area was noted but it was also noted the Appellant had submitted an application in 2006 that was still outstanding. The Appellant’s MP had written asking for a response to the said application. The application had been outstanding over three years. It is accepted the legacy programme was not an amnesty but it specifically took account of factors such as delay in dealing with a claim.
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The Appellant relies on the Independent Chief Inspector of Border and Immigration, An Investigation into the progress made on legacy and asylum migration cases between January -March 20131. It is accepted this report’s purpose was not to...
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