Upper Tribunal (Immigration and asylum chamber), 2022-02-28, DC/00122/2019
| Jurisdiction | UK Non-devolved |
| Date | 28 February 2022 |
| Published date | 15 March 2022 |
| Hearing Date | 06 January 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DC/00122/2019 |
Appeal Number: DC/00122/2019 (“V”)
IAC-FH-CK/sc-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DC/00122/2019 (‘V’)
THE IMMIGRATION ACTS
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Heard at Field House And via Teams |
Decision & Reasons Promulgated On the 28th February 2022 |
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On the 6th January 2022 |
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Before
UPPER TRIBUNAL JUDGE SMITH
UPPER TRIBUNAL JUDGE KEITH
Between
SLAYMAN BAKRI
(ANONYMITY DIRECTION not MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Al-Rashid, instructed by David Grand Solicitors
For the Respondent: David Clarke, Senior Home Office Presenting Officer
DECISION AND REASONS
BACKGROUND
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This is the remaking of the decision in the appellant’s appeal against the respondent’s decision to make an order depriving him of his British citizenship under section 40(3) of the British Nationality Act 1981.
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By an error of law decision promulgated on 20th October 2021, we found an error of law in the decision of First-tier Tribunal Judge Franzis itself promulgated on 17th February 2021 allowing the appellant’s appeal. In short summary, we did so because the Judge directed herself that an appeal under section 40A of the 1981 Act was not a review of the respondent’s decision “but a full reconsideration of the decision whether to deprive the appellant of British citizenship.” We found that to be a misdirection following the Supreme Court’s judgment in R (Begum) v SSHD [2021] UKSC 7 (“Begum”). Our error of law decision explaining our reasons in further detail is annexed to this decision for ease of reference.
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As a result of our error of law decision, we set aside Judge Franzis’ decision in its entirety and gave directions for a resumed hearing before us to re-make the decision. This is our decision following that resumed hearing. We have both contributed to the decision.
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The appellant’s appeal is against the respondent’s decision to make an order depriving him of his British citizenship under section 40(3) of the British Nationality Act 1981. The decision to deprive was made on the basis that the appellant had used a false identity comprising use of a false name, date of birth and nationality. He has claimed to be Fadi Ahmed Khalil, a national of Palestine born on 5th January 1988. He is in fact Slayman Bakri, a national of Lebanon, born on 7th November 1986.
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Putting matters neutrally, the appellant in his false identity was granted discretionary leave to remain (“DLR”) followed by settled status (“ILR”) and then citizenship.
CONDUCT OF THIS HEARING
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This hearing was conducted in person at Field House attended by the representatives and the appellant. The appellant’s wife, Zainab Shaher, attended via audio only through “Teams”. This was therefore a hybrid hearing. Prior to the hearing, the appellant had sought an adjournment on the basis that Ms Shaher, with whom he is not cohabiting, had tested positive for COVID-19. In response, the Tribunal asked the appellant whether his wife was willing to give evidence remotely. She confirmed that while her preference would have been to attend in person, she was content to do so via Teams. On the day of the hearing, because of difficulties with Ms Shaher’s internet connection, she was unable to connect to the video hearing. However, arrangements were made for her to dial in to Teams using her telephone, so that we were able to hear her evidence and she could hear us, but without video. We indicated to her that if she had any difficulty in understanding what was said during the hearing or did not understand any questions, she should let us know straightaway. We also checked to ensure that she had her witness statement, on which she was cross-examined, before her. We also made sure that the representatives introduced themselves so that she knew who was asking her questions at each stage.
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The appellant gave evidence with the assistance of an Arabic interpreter. At the beginning of the hearing, we checked that the interpreter and the appellant were able to understand one another, and they confirmed that they were.
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At no stage did either the appellant, Ms Shaher or Mr Al-Rashid indicate that there were any difficulties in participating in the hearing and we were satisfied that both the appellant and his wife were able to participate effectively.
DOCUMENTS
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We also explored with the representatives at the beginning of the hearing what documents we were being asked to consider. During the error-of-law hearing, Mr Al-Rashid had indicated that evidence in relation to the appellant’s suicide risk and wider article 8 rights would need to be considered on remaking. However, the updated evidence in the supplementary bundle before us appeared to be very limited. There was, for example, no documentary evidence in relation to the appellant’s children, other than their birth certificates, or relating to the appellant’s mental health. We checked this purely to ensure that we had not missed any relevant documents.
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Mr Al-Rashid confirmed that other than the supplementary consolidated bundle, which contained the witness statements of the appellant and Ms Shaher in this Tribunal and before the First-tier Tribunal, as well as some limited medical evidence, the only other bundle we were asked to consider was the respondent’s bundle before the First-tier Tribunal. This latter bundle contained all the correspondence and documentation in relation to the appellant’s applications which formed the focus of the deprivation decision. In response to cross-examination from Mr Clarke, who at various stages challenged the absence of documentation on what he submitted were material issues, Mr Al-Rashid applied to adduce one additional document, a NHS letter dated 18th September 2019. The letter referred to the appellant by his false identity and provided evidence that the appellant suffered burns, as a result of exposure to flames, in 2017. We admitted that letter without objection from Mr Clarke.
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Other than the respondent’s bundle before the First-tier Tribunal, the supplementary bundle produced by the appellant and the additional document to which we have already referred, we also considered documents submitted by Mr Clarke on 24th November 2021, which included notes from the respondent’s electronic database (“the CID notes”) and the respondent’s document: Form AN: guidance, version 1, dated June 2014, which was the guidance in force at the time of the appellant’s application for naturalisation and grant of citizenship.
FACTS, EVIDENCE AND CONSIDERATION OF THE EVIDENCE
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Many of the facts in this case are not and cannot be disputed because they are supported by documentary evidence. However, in particular the reasons for the use of a false identity are the subject of evidence from the appellant. We also have evidence from the appellant and Ms Shaher regarding the impact of deprivation on the appellant and his family.
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We set out the facts in chronological order including reference to the evidence we have from both the appellant and respondent regarding the issues which are relevant to our consideration. We have regard to all the evidence before us but refer only to that which is pertinent to our determination of the issues.
Use of false identity and deception
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The appellant entered the UK lawfully in or around 25th June 2004 using his real identity, on a visit visa. He then assumed his false identity, including the younger age, when he claimed asylum, as recorded in his Statement of Evidence Form. When he completed the form on 18th July 2004, he was (just) a minor, aged 17 years and 8 months.
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At the time of his asylum claim, the appellant was represented by Sara Solicitors. On the appellant’s account, the appellant’s representative at the time, Mr Saleh of Sara Solicitors, was aware of his true name and identity and had encouraged him to claim under the false identity.
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The respondent accepts that, as the appellant was (just) a minor at the time of his application, we cannot place weight on his actions at the time when considering the exercise of deception. However, as we will come to, that does not mean that we leave out of account the impact of the use of the false identity, in particular the false date of birth, on the appellant’s immigration status.
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Although a minor at the time of his asylum claim, the appellant was an adult by the date when the respondent reached her decision on the asylum claim on 25th February 2005. The respondent refused the appellant’s asylum claim not because she did not accept his (false) identity (of which she was at the time unaware), but because she did not accept that he had a well-founded fear of persecution, even based on his false identity. However, she granted DLR based on the false age. The CID notes record the following:
“Based on the information provided, I am refusing asylum for the reasons outlined in the Reasons for Refusal Letter but Discretionary Leave has been granted. The claimant is a minor and no reception arrangements exist for his return, we are minded to grant...
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