Upper Tribunal (Immigration and asylum chamber), 2023-06-28, UI-2022-004190
| Appeal Number | UI-2022-004190 |
| Hearing Date | 30 May 2023 |
| Date | 28 June 2023 |
| Published date | 13 July 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Case No: UI-2022-004190
First-tier Tribunal No: DC/50077/2020
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-004190 First-tier Tribunal No: DC/50077/2020 |
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THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 28 June 2023
Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
AGIM LASKU
(NO ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Sara Anzani, instructed by Morgan Pearse Solicitors
For the Respondent: Susana Cunha, Senior Presenting Officer
Heard at Field House on 30 May 2023
DECISION AND REASONS
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On 24 April 2023, a panel of the Upper Tribunal (Dove J and UTJ Blundell) found that the First-tier Tribunal (Judge Farrelly) had erred in law in allowing the appellant’s appeal against the respondent’s decision to deprive him of British citizenship. We set aside the decision on the appeal insofar as it related to Article 8 ECHR and we directed that the decision would be remade in the Upper Tribunal.
Background
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The relevant factual background was set out at [3]-[7] of the Upper Tribunal’s decision and may as well be reproduced here, so as to provide context for what follows.
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The appellant was born in Albania on 11 August 1979. He entered the United Kingdom on 3 December 1997 and claimed asylum. He gave his correct name but stated that he was a Kosovan national who had been born on 11 August 1980. He was granted Exceptional Leave to Remain (“ELR”) in April 1998. He subsequently applied for and was granted Indefinite Leave to Remain in 2003. The appellant made an application for naturalisation as a British citizen in 2003. The application was granted on 9 May 2005. Each of these applications was made using the incorrect date of birth and nationality first given by the appellant.
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The appellant’s mother made an application for a visit visa on 6 March 2009. In that application, she named the appellant as the sponsor and stated that he was an Albanian national. As she had apparently done on previous occasions, she submitted a copy of the Family Registration Certificate with that application, showing that the appellant was an Albanian national, and giving his correct date of birth.
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An investigation then took place, and a letter was sent to the appellant on 2 June 2009, notifying him of the respondent’s belief that he had acquired British citizenship by deception. In response to that letter, the appellant’s then solicitors confirmed in writing that the appellant had lied in his dealings with the Home Office because he wanted a better standard of life than he had had in Albania. The letter from the appellant’s solicitors drew attention to the appellant’s circumstances in the UK, including his marriage to a woman who had also naturalised and to the birth of their son on 27 August 2005. That letter and the accompanying documents were sent to the respondent on 17 June 2009.
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No further action was taken by the respondent until 22 July 2020, when she sent a letter to the appellant which was very similar to that which she had sent in 2009. The appellant’s then solicitors responded promptly, on 4 August 2020, making representations against the respondent’s proposed course of action. Amongst other things, this letter stated that an interpreter was to blame for the appellant’s initial lie; that he and his wife now had two children; and that there had been a significant delay in progressing matters. It was submitted that the delay had been prejudicial to the appellant, who would otherwise have benefited from ‘the 14 year rule’ before its deletion from the Nationality Instructions in August 2014.
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On 11 December 2020, the respondent decided to deprive the appellant of his British citizenship. She concluded that he had obtained naturalisation by means of deception and that it was appropriate to deprive him of the citizenship he had obtained in that way. She did not consider that taking that course of action would be in breach of Article 8 ECHR.
Proceedings on Appeal
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I need not make extensive reference to the proceedings before the First-tier Tribunal. Ms Anzani of counsel represented the appellant then as she does now. She accepted that the condition precedent for deprivation was made out, which is to say that she accepted that the appellant had obtained British citizenship by means of deception. Ms Anzani submitted orally and in her skeleton argument of 10 March 2022 that the ‘sole issue under consideration is whether the decision breaches the appellant’s human rights or there is some exceptional feature of the case which means the discretion should be exercised differently’. The judge in the First-tier Tribunal recorded and accepted Ms Anzani’s concession as to the condition precedent: [25]. He found that Article 8 ECHR was engaged: [26]. For reasons he gave at [27]-[32], the judge found that it would be contrary to Article 8 ECHR to deprive the appellant of his citizenship. It was that conclusion which Dove J and I set aside in our first decision.
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In preparation for the resumed hearing, the appellant’s solicitors had filed and served an updated bundle of 134 pages. Ms Anzani had filed and served an updated skeleton argument. She confirmed at [19] of that skeleton argument that the sole issue was whether the deprivation of the appellant’s citizenship was unlawful under section 6 of the Human Rights Act 1998 (by reference to Article 8 ECHR).
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At [30] of Ms Anzani’s skeleton argument, she made it clear that she intended to rely upon a submission that the ‘limbo period’ (ie, the period between the appellant being deprived of his citizenship) was likely to be considerably longer than the eight weeks suggested by the Secretary of State at [91] of Hysaj (Deprivation of Citizenship: Delay) [2020] UKUT 128 (IAC). Relying on a Freedom of Information (“FOI”) response dated 11 March 2021, Ms Anzani sought to submit that the period between deprivation and a decision as to whether or not to grant leave to remain was 303 days on average.
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Ms Anzani provided a copy of the FOI response. I was able, in any event, to confirm with reference to the First-tier Tribunal’s database, that a copy of that document had been adduced in connection with those proceedings. I nevertheless gave Ms Cunha time to take instructions on the up-to-date position. I gave her an hour to make those enquiries.
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When the hearing resumed, Ms Cunha said that she was unable to provide an update. She did indicate that she would be prepared to give an undertaking that the appellant’s Article 8 ECHR claim would be considered within eight weeks in the event that he was prepared to sign a consent order withdrawing his appeal. Having taken instructions, Ms Anzani confirmed that the appellant was not willing to take that route. Neither advocate sought any additional time and I proceeded to hear oral evidence from the appellant.
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I do not propose to rehearse the appellant’s oral evidence. I will instead make reference to his evidence insofar as it is necessary to do so to explain the findings of fact I have reached.
Submissions
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Ms Cunha’s submissions for the respondent were, in summary, as follows.
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The only question before the Tribunal was in relation to Article 8 ECHR. There was a heavy weight to be placed upon the public interest in maintaining the integrity of the system by which foreign nationals are naturalised and permitted to enjoy the benefits of British citizenship: Laci v SSHD [2021] EWCA Civ 769; [2021] 4 WLR 86, approving Hysaj in the Upper Tribunal. That weight was particularly heavy in circumstances in which the appellant had lied about his background on so many occasions. The appellant did not voluntarily ‘come clean’; it was only when the respondent had evidence which suggested that he was Albanian that he admitted as much.
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The appellant had not made enquiries about his situation between 2009 and 2020 and had acquiesced in the respondent’s delay. Notably, he had applied for a new passport in the false identity during that period and he had confirmed in evidence that he had used that passport to travel. The delay was in any event explained by the litigation which was in progress at that time. The respondent did not know whether to deprive a person in the appellant’s circumstances of their citizenship or, instead, whether she should treat their citizenship as a nullity. The history of the protracted litigation which culminated in the decision of the Supreme Court in Hysaj v SSHD [2017] UKSC 82; [2018] 1 WLR 221 was traced at [46]-[63] of the Upper Tribunal’s decision in that case on remittal. The Secretary of State had taken action in this case after considering what was said by the Supreme Court and obtaining further evidence about the appellant’s true identity. In the circumstances, delay was not a weighty consideration in the scales of proportionality.
The appellant was to submit that he and his family would suffer serious adversity as a result of...
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