Upper Tribunal (Immigration and asylum chamber), 2022-10-25, DC/00011/2020
| Appeal Number | DC/00011/2020 |
| Hearing Date | 29 September 2022 |
| Published date | 09 November 2022 |
| Date | 25 October 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: DC/00011/2020
IAC-AH-BW-V2
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: dc/00011/2020
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 14 June 2022 & 29 September 2022 |
On the 25 October 2022 |
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Before
UPPER TRIBUNAL JUDGE McWILLIAM
Between
SOKOL PALI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant on 14 June and 29 September 2022: Ms H Foot, Counsel, instructed by OTB Legal Solicitors
For the Respondent on 14 June 2022: Mr D Clarke, Senior Presenting Officer
For the Respondent on 29 September 2022: Mr S Kotas, Senior Presenting Officer
DECISION AND REASONS
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The Appellant is a citizen of the United Kingdom. His date of birth is 1 September 1977. He was born in Albania.
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I set aside the decision of First-tier Tribunal Judge J K Swaney to allow the Appellant’s appeal against the decision of the SSHD on 21 January 2020 to deprive him of his British citizenship pursuant to s.40(3) of the British Nationality Act (the 1981 Act). The decision of the judge and my error of law decision predate Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 00238.
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There was no application for an order to anonymise the Appellant. I have considered Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private and find no reason to make such an order. However, I have identified the Appellant’s partner and children by initials to protect their identity.
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The Appellant came to the UK on 29 July 1988. He claimed asylum falsely claiming to be from Kosovo and giving a false date of birth. His asylum claim was refused. He appealed against the decision. The appeal was dismissed in his absence. The Appellant made an application on 22 September 2006 for LTR under the family Indefinite Leave (ILR) exercise. The application was refused on 12 December 2006 on the basis that he did not have any dependants of qualifying age.
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The SSHD granted the Appellant ILR outside of the Immigration Rules (IR) on 29 May 2009. The SSHD’S decision stated “your leave has been granted exceptionally, outside the Immigration Rules. This is due to your strength of connections in the United Kingdom, and length of residence in the United Kingdom”.
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The Appellant applied for a travel document on 9 June 2009 still maintaining his false date and place of birth. On 6 September 2010 the Appellant submitted an application to naturalise as a British citizen using false details. He was issued with a British passport on 7 December 2018.
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The Appellant had on 15 November 2019, prior to the SSHD sending him an investigation letter, sent a pre-emptive letter to the Respondent (wherein he accepted that he had given false details to the Home Office throughout his immigration history. He maintained that his life was at risk in Albania following a blood feud. He had followed advice given to him at the time. The Appellant’s partner, RP, is a citizen of Albania. They have two children, a daughter, L (date of birth 8 February 2012) and a son, R (date of birth 20 October 2013). The children were British citizens and in full-time education. The Appellant stated that he was anxious and depressed and had frequent suicidal thoughts. In support of this his solicitors enclosed evidence from the Appellant’s GP (Dr W T Neville), a letter from Hertfordshire Partnership (confirming that he had been referred to a mental health professional) and a letter from Dr Daniel Brook of the Law Medical Group Practice (confirming that he had been suffering with anxiety and depression). The Appellant said that he was self-employed, had been in the UK for 21 years and had a strong private and family life. He told the SSHD that his daughter L had a disability. It was submitted that deprivation would have a “major negative impact” on her health. The Appellant relied on paras 55.7.3 and 55.7.4 of the deprivation and nullity of British citizenship guidance. It was asserted that it would be unfair and unreasonable for the SSHD to exercise her discretion to deprive the Appellant of his citizenship. The Appellant’s case was referred to the Status Review Unit (SRU) after checks concluded that he was a citizen of Albania. The SSHD made a decision to deprive the Appellant of British citizenship on 21 January 2020.
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My error of law decision can be summarised. I concluded that the judge erred because she carried out a full merits review of whether the condition precedent had been established. I also found that the First-tier Tribunal erred in respect of the issue of delay. I found, however, that the judge had properly applied Sleiman (deprivation of citizenship) [2017] UKUT 367. I considered at the error of law stage, having set aside the decision that the judge was entitled to conclude that the Appellant had not been granted leave on the basis of his nationality before the grant of ILR under the Legacy Programme. However, that was not the end of the matter because bad character had been relied on by the SSHD which was a matter that the First-tier Tribunal had not engaged with. Moreover, the task of the Tribunal was not a full merits review as it was in Sleiman.
The Decision of the SSHD
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The relevant parts of the decision letter reads as follows:-
“15. On 6 September 2010 you submitted an application to naturalise as a British citizen. You again claimed your identity as Sokol Pali, date of birth 1st September 1980, place of birth Deçan, Kosovo (Annex J, page 1, Section 1). You claimed your father’s identity as Pal Pali, date of birth 13 March 1943, place of birth Deçan, Kosovo and your mother’s identity as Katrina Mark Pali, date of birth 1 October 1946, place of birth Shkodër, Kosovo (Annex J, page 3, Section 1.23 – 1.30). You left the partner section blank (Annex J, page 4, Section 1.31 – 1.45). You signed the declaration section of the form AN which clearly states:
‘To give false information on this form knowingly or recklessly is a criminal offence punishable with up to three months’ imprisonment or by a fine not exceeding £5,000 or both), Section 46(1) of the British Nationality Act 1981, as amended.’ (Annex J, page 12, Section 6.1).
Also, on the form AN Section 3 is the good character requirement and Section 3.12 of this states ‘Have you engaged in any other activities which might indicate that you may not be considered a person of good character?’ This was a tick box answer to which you ticked ‘no’ (Annex J, page 8, Section 3.12). You ticked the box to confirm that you have read and understood the guidance AN and booklet AN (Annex J, page 12, Section 6.2). This application was successful, and you were granted British citizenship. You attended your ceremony to naturalise on 11 October 2010 (Annex L).
19. Your legal representatives state that as your asylum claim was unsuccessful and you were not granted any form of refugee leave, you were granted indefinite leave to remain outside the Rules due to your length of residency in the UK. However, had the truth be known of your genuine identity you would not have been able to remain in the UK and qualify for any type of leave. Given you are from Albania, your removal could have been facilitated. However, given your claim to be from Kosovo, your removal was not enforced. You were therefore able to remain in the UK and accrue residence, which ultimately resulted in you being granted ILR outside the Rules. Had it been known that you were Albanian, you would not have accrued this residence and it is therefore submitted that your deception was material to the grant of status. Chapter 55, Section 55.7.1 states:
‘If the relevant facts, had they been known at the time the application for citizenship was considered, would have affected the decision to grant citizenship via naturalisation or registration the caseworker should consider deprivation.’ (Annex V, page 6, para 55.7.1).
Also, it is noted that you sent in an application for family ILR (Annex G) which was incorrect as all your applications have only ever been individual. Family ILR is only granted for Applicants who have dependants, or any Applicant who has exceptional or compassionate circumstances which you did not at this time. This added to you gathering more residency time in the UK as the application was being considered, this then benefitted you and enabled you to be granted ILR (LOTR) due to your length of residency in the UK (Annex H).
20. It is also noted that your representatives state that you suffer from mental health problems and you are very anxious and depressed and have also had frequent suicidal thoughts...
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