Upper Tribunal (Immigration and asylum chamber), 2022-02-09, DC/00090/2019
| Jurisdiction | UK Non-devolved |
| Date | 09 February 2022 |
| Published date | 24 February 2022 |
| Hearing Date | 17 January 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DC/00090/2019 |
Appeal Number: DC/00090/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DC/00090/2019 (V)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 23 July 2021 & 17 January 2022 |
On 9 February 2022 |
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Before
UPPER TRIBUNAL JUDGE KEBEDE
Between
SHPRESIM RADA
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms S Naik, instructed by Oliver & Hasani Solicitors
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer
DECISION AND REASONS
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This has been a remote hearing to which there has been no objection from the parties. The form of remote hearing was Microsoft Teams. A face to face hearing was not held because it was not practicable, and all issues could be determined in a remote hearing.
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This is the re-making of the appellant’s appeal against the Secretary of State’s decision of 19 August 2019 to deprive him of his British nationality under section 40(3) of the British Nationality Act 1981, the previous decision of the First-tier Tribunal allowing the appeal on 5 February 2020 having been set aside.
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The appellant is a national of Albania, born on 3 November 1987. He arrived in the UK in July 2003, aged 15 years, and claimed asylum on the grounds of being at risk on return to Kosovo from the Kosovo Liberation Army (KLA) who had killed both his parents. He stated that he came from Gjakove, Kosovo, and gave a different name and date of birth, namely Nikolin Kera born on 3 June 1988. He was interviewed about his claim on 19 December 2003.
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The appellant’s asylum claim was refused on 19 March 2004, but he was granted discretionary leave, valid until 19 March 2005, as an unaccompanied asylum-seeking child. Following an application made on 8 March 2005 his leave was extended until 3 March 2006. On 19 May 2006 he applied on Form HPDL for settlement in the UK and he was granted indefinite leave to remain on 13 May 2010, outside the immigration rules. The grant of indefinite leave, as with the previous applications, was made in the appellant’s false identity and was granted on the basis of his strength of connections and length of residence in the UK (as confirmed in the document at K1 of the respondent’s appeal bundle), under the “Legacy Programme”. The appellant was issued with a Home Office Travel Document on 28 September 2010 and on 20 September 2011 he was granted British Citizenship following an application for naturalisation made on 2 May 2011 in his false identity.
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It appears that the appellant’s false identity came to light as a result of his own admission and on his own initiative. Indeed, his statement dated 26 June 2018 at Annex P of the respondent’s appeal bundle sets out the reasons for using the false identity and it seems that that statement was sent to the Home Office accompanied by written representations from his former solicitors.
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In that statement, the appellant explained how he had grown up in impoverished circumstances in Albania, in a household where money was scarce and where his father could not afford to pay for him to study further as he wished. He therefore decided to come to the UK and an agent was arranged to bring him here. The appellant explained how the agent took his passport from him, how he and the other boys with whom he was travelling were passed from one agent to another, how arduous the journey was through several countries, how he was sexually abused by a man in Paris and how he was given papers in a false identity and a concocted asylum claim by an agent in Belgium before being brought in a lorry to the UK. On arrival in the UK he told the story he was given, in his false identity. His claim was refused but he was eventually granted indefinite leave to remain due to the strength of his connections, and his length of residence, in the UK. He had studied hard in the UK, achieving a BA degree in Accounting in 2011 and an MBA in 2014. He was hoping to qualify as an accountant. The appellant explained that he had considered telling the truth about his identity when he applied for indefinite leave to remain but was too scared to do so. After being granted British citizenship in September 2011 he was issued with a passport in October 2011 and then in July 2012 he changed his name by deed poll and gave his true town of birth. He obtained a new passport in that identity on 31 July 2012. He felt terrible about having lied and did not want to have to return to Albania.
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It is apparent from the letter from the appellant’s current solicitors of 14 November 2018, at Annex O of the respondent’s bundle, that the Home Office then wrote to the appellant on 26 October 2018 advising him that consideration was being given to depriving him of his British citizenship pursuant to section 40(3) of the British Nationality Act 1981. The appellant’s solicitors responded in the letter of 14 November 2018, providing mitigating circumstances for the false details having been given, setting out the appellant’s Article 8 claim and requesting that he not be deprived of his British citizenship. It was submitted in that letter that the grant of ILR under the legacy programme was a “concession” on the part of the Secretary of State. Reliance was placed on the Home Office Deprivation and Nullity of British Citizenship Guidance, Chapter 55, which stated that it was not appropriate to pursue deprivation action where the fraud or false representation did not have a direct bearing on the grant of citizenship such as where ILR was acquired under a concession.
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The respondent, however, in a decision dated 19 August 2019, did not accept the appellant’s explanation as a justification for the deception and concluded that his British citizenship had been obtained fraudulently and that he should be deprived of his British citizenship under section 40(3) of the British Nationality Act 1981. The respondent rejected the argument made on behalf of the appellant that his circumstances fell within the terms of Chapter 55 of the Deprivation & Nullity of British Citizenship guidance. The respondent did not accept that the basis for the grant of ILR to the appellant, under the ILR legacy programme, was a “concession”. The respondent also rejected the explanation given that the appellant was a minor when he claimed asylum under the false identity and was thus not responsible for the deception, noting that he was an adult by the time he made his application for further leave in March 2006 and for British citizenship. The respondent noted that the appellant, when applying for British citizenship, had signed a declaration confirming that the information he had provided was correct and would have been aware from the application form that steps would be taken to deprive him of his British citizenship if evidence was later presented showing that his grant of citizenship had been obtained as a result of fraud. The respondent, in referring to Article 8, advised the appellant that deprivation of citizenship did not of itself preclude a person from remaining in the UK and, as such, it was not necessary to consider the impact of removal at this stage.
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The appellant appealed against that decision under section 40A(1) of the British Nationality Act 1981. His appeal was heard on 13 January 2020 by First-tier Tribunal Judge Herbert. The judge was satisfied that the grant of ILR to the appellant was not as a result of his asylum claim or his claimed nationality as a Kosovan, and that he would have been granted ILR in any event because of the basis for the grant, namely his connections to the UK and his length of residence here. The judge accepted that, as a minor, the appellant had no choice but to accept the false details given to him by the agent who brought him to the UK. He did not accept that the deception which continued after the appellant turned 18 motivated the grant of ILR or naturalisation and he relied upon the case of Sleiman (deprivation of citizenship; conduct) [2017] UKUT 367 in that respect. The judge considered the appellant to be a man of good character who offered to regularise his position in 2018, and who had previously, once an adult, feared making his true identity known due to the significant consequences that would have had on his future life in the UK. He allowed the appeal.
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Permission to appeal was sought by the respondent and granted on 14 April 2020. Directions were issued for the appeal hearing, including directions as to the impact, if any, of the recent case of Hysaj (Deprivation of Citizenship: Delay) [2020] UKUT 128 and the appellant filed a Rule 24 response.
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Following a hearing on 13 October 2020 in which the Secretary of State was represented by...
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