Upper Tribunal (Immigration and asylum chamber), 2022-06-28, [2022] UKUT 00276 (IAC) (Berdica (Deprivation of citizenship: consideration))
| Judge | THE HON. MRS JUSTICE COLLINS RICE, UPPER TRIBUNAL JUDGE O’CALLAGHAN |
| Status | Reported |
| Published date | 20 October 2022 |
| Date | 28 June 2022 |
| Hearing Date | 05 April 2022 |
| Appeal Number | [2022] UKUT 00276 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | Deprivation of citizenship: consideration |
UT Neutral citation number: [2022] UKUT 00276 (IAC)
Berdica (Deprivation of citizenship: consideration)
Upper Tribunal
(Immigration and Asylum Chamber)
Heard at Field House
THE IMMIGRATION ACTS
Heard on 5 April 2022
Promulgated on 28 June 2022
Before
THE HONOURABLE MRS. JUSTICE COLLINS RICE
(Sitting as a Judge of the Upper Tribunal)
UPPER TRIBUNAL JUDGE O’CALLAGHAN
Between
PAJTIM BERDICA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr. P Saini, Counsel, instructed by EA Law Solicitors
For the Respondent: Mr. D Clarke, Senior Presenting Officer
1. In deprivation of citizenship appeals, consideration is to be given both to the sustainability of the original decision and also whether upon considering subsequent evidence the Secretary of State's maintenance of her decision up to and including the hearing of the appeal is also sustainable. The latter requires an appellant to establish that the Secretary of State could not now take the same view.
2. Decisions of the Upper Tribunal are binding on the First-tier Tribunal, not only in the individual case by virtue of section 12 of the Tribunal, Courts and Enforcement Act 2007, but also as a matter of precedent.
DECISION AND REASONS
Introduction
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This appeal is concerned with the respondent’s intention to deprive the appellant of his British nationality, conveyed by a decision dated 23 December 2019.
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The appellant appeals with permission against the adverse decision of Judge of the First-Tier Tribunal Welsh (‘the Judge’) sent to the parties on 26 October 2021.
Background
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The appellant is a national of Albania. He has provided this Tribunal with a birth certificate confirming that he was born in Trush, Shkoder, Albania, on 11 April 1978. He is aged 44.
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He entered the United Kingdom on 9 March 1998, when aged 19. He sought international protection and informed the United Kingdom authorities that he was a national of the Federal Republic of Yugoslavia. He now accepts that this assertion was false.
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He further stated that he was born in Gjakova, situated in the then autonomous province of Kosovo. He accepts this assertion was false.
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Though he provided the domestic authorities with his correct name, he presented a false date of birth, 11 April 1982, and so asserted that he was an unaccompanied minor aged 15 at the date of his asylum application. He accepts that the assertions as to his date of birth and age were false.
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By a decision dated 30 May 1998, the respondent recognised the appellant as a refugee, believing him to be an unaccompanied minor Kosovan national who had been truthful as to his personal history. The appellant was granted leave to remain in this country until 22 May 2002.
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The appellant applied for indefinite leave to remain in his false identity and was granted settlement on 14 December 2000.
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On 24 February 2005 the appellant applied to naturalise as a British citizen in his false identity and was issued with a certificate of naturalisation on 1 June 2005.
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In 2009 the appellant sponsored the entry clearance application of his then fiancée, an Albanian national, who when making her application to the British Embassy submitted the appellant’s Albanian birth certificate. The respondent was subsequently informed that the appellant had misrepresented aspects of his identity.
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On 7 October 2009 the respondent wrote to the appellant to advise that she had reason to believe he had secured British citizenship through fraud, false representation or concealment of material facts.
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The appellant provided written reasons to the respondent on 22 October 2009 explaining why his reliance on a false identity was not dishonest. He detailed, inter alia:
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His parents moved from Albania to Kosovo when he was aged one, and he resided in Kosovo thereafter.
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He was never informed by his family that he is an Albanian national.
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He received no education in Kosovo.
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He only discovered his true identity in 2006. Having met his fiancée whilst on holiday in Albania he wished to sponsor an application for her to travel to the United Kingdom. He required his birth certificate and upon making inquiries was informed by the Kosovan authorities that he was not a Kosovan national. He approached authorities in Albania and secured his birth certificate. In the process he became aware of his true date of birth.
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He subsequently contacted members of his father’s family and was informed that his parents were fearful that if knowledge of their relocation to Kosovo came to light, family members remaining in Albania would be killed.
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On 19 February 2013 the respondent served the appellant with a decision nullifying the grant of British citizenship. The appellant has not informed us that he sought to challenge the decision.
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On 21 December 2017 the Supreme Court handed down judgment in R (Hysaj) v. Secretary of State for the Home Department [2017] UKSC 82, [2018] 1 W.L.R. 221, allowing, by consent, an appeal against the respondent’s decision that misrepresentations made by the applicant in his application for British citizenship made the grant of that citizenship a nullity.
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On 8 January 2018 the respondent wrote to the appellant advising that the nullity decision of 19 February 2013 was to be reviewed in light of the Supreme Court judgment.
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On 3 February 2018 the respondent wrote to the appellant and confirmed that she accepted that he is a British citizen under section 6(2) of the British Nationality Act 1981 (‘the 1981 Act’) and therefore the nullity decision of 19 February 2013 was withdrawn. However, in light of the false information provided by the appellant the respondent confirmed that she would give consideration to whether it was appropriate to deprive him of citizenship in accordance with section 40 of the 1981 Act. The appellant did not respond to this letter.
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By a decision dated 23 December 2019 the respondent gave notice of her decision to deprive the appellant of British citizenship under section 40(3) of the 1981 Act. The respondent detailed, inter alia:
‘However, at this point I should interject that according to Home Office records you did not at any point after your 07 October 2019 Annex C deprivation letter, nor for your 19/02/2013 Annex C nullity decision letter, or your most recent 17/3/2018 Annex C deprivation letter respond by naming the officials you approached in Kosovo and Albania, nor did you provide an audit trail or statements from Kosovo or Albanian officials to support your 22 October 2019 statement. With regards to your genuine 11 April 1978 Albania birth, it is not plausible or conceivable that you believed you were 4 years younger than your true age. Moreover, it is also not accepted as an innocent explanation that you were not aware that you were actually born in Albania on the 11 April 1978, if your worked in Kosovo, and went to school in Kosovo you would be able to request school attendance or employment records, or at least a letter from the Kosovo embassy; you did not provide any documentation to prove that you resided in Kosovo.’
…
‘Your claim that you did not realise your genuine Albanian nationality, date of birth and place of birth until 2006 when you were either 27 or 28 years of age … was not considered credible.’
...
‘You had clearly and repeatedly used a different Kosovo nationality and a date of birth that led caseworkers to believe you were a minor and under 18 years at the time of your asylum claim and circumnavigate a removal from the UK had you declared your true age and Albanian nationality.’
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‘The evidence set out previously in this notice demonstrates that you intentionally deceived the Home Office over an extended period and withheld the material fact that you were using a false identity when you entered Britain and claimed asylum as a Kosovan minor in the United Kingdom. Operative concealment has been demonstrated, as the fraud was material to your acquisition of British citizenship. It is evident from the 30 May 1998, when you were claiming to be a Kosovan under the age of 18 years when you were granted ELR, as an un-returnable minor. … Had your genuine identity and date of birth been known to the Home Office, then you would not have received ELR which subsequently allowed you to obtain ILR and Naturalisation in your fictious identity. The fraud was directly material to you obtaining ELR and ILR, as a Kosovan citizen, which in turn, this deception allowed you to appear to meet the requirements to Naturalise as a British citizen. It is not accepted that there is a plausible, innocent explanation for the misleading information that you provided and which led to the subsequent decision to grant you with British citizenship. On the balance of probabilities, this Department concludes that during your asylum claim you amended your place of birth and nationality and concocted a fictitious account of your personal history to benefit from immigration rules that were then in place for Kosovan nationals. Concealing your true Albanian nationality and presenting as a Kosovan minor was a precursor to you obtaining British citizenship, as you received ELR and ILR as a direct consequence of your false...
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