Upper Tribunal (Immigration and asylum chamber), 2022-11-14, IA/01221/2021
| Appeal Number | IA/01221/2021 |
| Hearing Date | 12 July 2022 |
| Published date | 01 December 2022 |
| Date | 14 November 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-000679
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-001271
DC/50025/2021; IA/01221/2021
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 12 July 2022 |
On 14 November 2022 |
|
|
|
Before
THE HON. MR JUSTICE MORRIS
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
UPPER TRIBUNAL JUDGE SHERIDAN
Between
MASOOD AHMED
(NO ANONYMITY DIRECTION made)
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Mr Alasdair Mackenzie, counsel, instructed by Legal Rights Partnership, Solicitors
For the Respondent: Mr David Clarke, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
-
This is an appeal by Masood Ahmed (“the Appellant”) against the decision of First-tier Tribunal judge Elliott promulgated on 29 October 2021 (“the FTT Decision”). By the FTT Decision, the judge dismissed the Appellant’s appeal against the decision of the Secretary of State for the Home Department (“SSHD”) dated 27 January 2021 depriving him of British citizenship under section 40(3) British Nationality Act 1981 (“the SSHD Decision”). Permission to appeal was granted by FTT judge Zucker on 18 November 2021.
Factual background
-
The Appellant was born in Pakistan on 27 October 1977. At the age of 17 he married Shazia Mobeen in Pakistan in an Islamic religious ceremony, a nikah. They had four children. In 2004 her entered the UK from Pakistan illegally; he claims that he did so to escape that marriage. In the UK in 2005 he met Sonia Choudhury, a British citizen. In 2007 they underwent a nikah in the UK. In 2008 he returned to Pakistan and on 15 February 2008 made an application for entry clearance as a fiancé of Ms Choudhury.
-
On 17 March 2008 he was granted a visa for 6 months. On that day he had been interviewed by an entry clearance officer (“the March interview”), in the course of which he said that he had not been previously married (Question 7). He claims that he failed to mention his marriage to Shazia Mobeen because he believed that his Pakistani nikah was not recognised in UK law. Asked why he and Ms Choudhury had decided to get married in the UK and not in Pakistan, he replied “I was in the UK”. Then, Questions 10 and 11 of the interview recorded as follows:
“Q: But this [i.e. the UK nikah] was under Islamic law only. You are now applying for a fiancé visa, as the UK does not recognise Islamic Marriages that have not been registered. Why not conduct a ceremony here [i.e. Pakistan] where your family are?”
A: I didn’t know that it would be ok to do that
Q: Most Pakistani’s get married here [i.e. Pakistan] and then apply to join their spouse in the UK on a settlement visa. Why did you not do this?
A: We have already conducted a Nikka there [i.e. in the UK] and in Islam it is not permitted to have another”
-
He returned to the UK on a fiancé visa and on 23 April 2008 he and Ms Choudhury got married in a civil ceremony here. On 9 May 2008 he was granted leave to remain for two years and thereafter on 8 June 2010, indefinite leave to remain (“ILR”).
-
On 28 April 2011 the Appellant applied for naturalisation as a British citizen, completing the standard form AN. In that form, he failed to provide details of his previous marriage and confirmed that he had not engaged in any other activities which might indicate that he was not of good character. On 28 September 2011 he was granted British citizenship.
-
In 2015 the Appellant moved to Ireland, in order that Shazia Mobeen and their four children could join him there. He sponsored successful applications to the Irish authorities for residence cards by Shazia Mobeen, as his spouse and by the four children. In those applications, his residential address was the same as that of the applicants and Ms Mobeen stated that the Appellant was her spouse. In fact Shazia Mobeen and the children returned to Pakistan in 2017.
-
Subsequently the SSHD carried out an investigation into the manner in which the Appellant had obtained British citizenship, on the basis that he had failed to declare his marriage to Shazia Mobeen. (The FTT Decision records that this was a result of information provided by the Irish authorities). The Appellant’s representative responded in a letter dated 16 October 2020, in which the Appellant claimed that, on the basis of advice from Ms Choudhury, he genuinely believed that a nikah was not recognised in UK law as a valid marriage and for that reason he had not declared his previous marriage to Shazia Mobeen.
The SSHD Decision
-
After setting out the above factual background at §§8 to 45, the SSHD Decision summarised the Appellant’s response on 16 October 2020 (at §§47 to 59). In particular the SSHD Decision set out the Appellant’s case, as follows:
“52. It was then claimed that Sonia Choudhry had advised you that the Nikah in Pakistan, with Shazia Mobeen, was not a valid marriage and therefore did not need to be referred to in your applications. It was then stated that the Nikah you had in the UK with Sonia Choudhry was not recognised, which was why you had to return to Pakistan and apply for a fiancé visa ….
53. It was then stated that you denied making any false representations deliberately and that you accept that you had a Nikah with Shazia Mobeen in Pakistan in or about 1995. It is then claimed, however, that Sonia Choudhry advised you that it was not a valid marriage and you relied on this information. The response then claims that he genuinely believed that a Nikah was not recognised in UK law as a valid marriage … .
54. It was stated that you declared yourself as single prior to marrying Sonia Choudhry as you genuinely held the belief that the Nikah with Shazia Mobeen did not constitute as a recognised form of marriage in the UK, and because of this there was no deception ….”
(emphasis added)
-
Then at §§61-83, the SSHD set out her reasons, in the light of the Appellant’s case put before her, for concluding nonetheless that the fraud (i.e. the failure to disclose the previous marriage) was deliberate and material. The SSHD referred to relevant provisions of Chapter 55: Deprivation and Nullity of British Citizenship. She considered that he was not eligible to naturalise as he had failed to disclose his previous marriage and that that had enabled him to be granted ILR and thus accrue enough residency to naturalise (§63). Had he disclosed his true circumstances, it was entirely possible that neither ILR nor citizenship would have been granted (§64). At §65, the SSHD Decision recorded that the Appellant claimed that he “did not purposely fail to disclose the marriage with Shazia Mobeen as the relationship ended in 2004 when you left Pakistan”, but went on to point out that he had been living with her in Ireland since arriving in the UK. At §66, she states that, if it had been known at the time of the application for naturalisation that he had not been entitled to his ILR, then that application would have been refused: “the fraud employed by you did have a direct bearing on the grant of citizenship you received”. The SSHD Decision then continued, in important passages:
“67. Chapter 55.7.7.1 states that the caseworker should be satisfied that there was an intention to deceive: an innocent or genuine omission should not lead to deprivation. However, a deliberate abuse of immigration or nationality application processes may lead to deprivation (Annex P7, Section 55.7.7.1).
68. You had ample opportunity during your Entry Clearance application and interview, various communications and naturalisation application to provide the Secretary of State with this information. However, you made a conscious choice not to, and it is on this basis that your deception is classed as deliberate.”
(emphasis added)
-
At §§69 and 70, the SSHD Decision addressed the claim that the Appellant had been acting on the advice of Ms Choudhury. §§73 to 82 then addressed “the good character requirement” in a naturalisation application, as set out in Guide AN and Chapter 18. The Appellant’s failure to disclose his previous marriage both in his naturalisation application and in his earlier dealings with the SSHD meant that he was not of “good character, and had this been known at the time, his application would have been refused”. This section of the SSHD Decision concluded as follows:
“82. Had the caseworker been aware of these details, there is no doubt your application would have been refused both because your deception was material and because of questions about your good character. Therefore, deprivation is both balanced and proportionate.
83. For the reasons given above it is not accepted there is a plausible, innocent explanation for the misleading information which led to the decision to grant citizenship. Rather, on the balance of probabilities, it is considered that you provided information with the intention of obtaining a grant of status and/or citizenship in circumstances where your application(s) would have been unsuccessful if you had told the truth. It is therefore considered that the fraud was...
To continue reading
Request your trial