Upper Tribunal (Immigration and asylum chamber), 2023-03-10, LP/00331/2021
| Appeal Number | LP/00331/2021 |
| Hearing Date | 18 January 2023 |
| Published date | 28 March 2023 |
| Date | 10 March 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: DC/50018/2020
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Appeal No: UI-2021-001385 DC/50018/2020 LP/00331/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Promulgated
On 10 March 2023
Before
UPPER TRIBUNAL JUDGE OWENS
DEPUTY UPPER TRIBUNAL JUDGE SKINNER
Between
ARTUR HOTI
(NO ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr R. Toal, instructed by Gulbenkian Andonian Solicitors
For the Respondent: Ms H. Gilmore, Senior Home Office Presenting Officer
Heard at Field House on 18 January 2023
DECISION AND REASONS
A. INTRODUCTION
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By a decision dated 21 September 2020, the Secretary of State decided to deprive Mr Hoti of his British citizenship on the basis that she was satisfied that he had obtained his naturalisation certificate by means of fraud (“the Decision”). Mr Hoti appealed that decision to the First-tier Tribunal (“the FTT”) and his appeal was allowed by FTT Judge Kudhail in a decision dated 16 December 2021. The Secretary of State then appealed Judge Kudhail’s decision to this Tribunal.
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By a decision dated 30 September 2022 (“the error of law decision”), we allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision and gave directions for the underlying appeal to be re-made in the Upper Tribunal.
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In the error of law decision, we considered a number of procedural and substantive issues that arose. The error of law decision is included as an Annex to this decision. In summary, we:
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decided that the effect of submitting a response pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 after the deadline is that, absent the grant of an extension of time, a respondent may not rely on any additional grounds set out therein other than those that formed the basis of the decision appealed against (paras 47-53);
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granted an extension of time for filing Mr Hoti’s Rule 24 response, but declined to admit the evidence that was contained therein that had not been before the FTT (paras 54-60);
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decided that the FTT had failed to consider one of the two ways in which the Secretary of State had decided in the Decision that Mr Hoti had acquired his naturalisation by means of fraud and that this was a material error of law (paras 60-66);
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decided that the FTT had, despite citing both R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7; [2021] Imm AR 879 and Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238 (IAC), not applied them and had instead decided for itself whether the matters of which the relevant statutory provisions provide that the Secretary of State must be satisfied were made out, which was also a material error of law (paras 67-75). In doing so, we explained:
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that the post-Begum approach to deprivation appeals permitted an appellant to rely on any of the grounds that would be available to them in judicial review (para 68);
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why the administrative law type approach applied to an appeal against a decision under section 40(3) of the British Nationality Act 1981, as well as to decisions (with which Begum was concerned), under section 40(2) (para 68); and
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that notwithstanding that an administrative law approach is applicable to both types of appeal (and on its face to the question of statelessness under section 40(4)), as in judicial review generally, the intensity of review in relation to whether a decision was not one which a reasonable decision-maker could reach varies according to the issues which the decision-maker had to decide (paras 71-73).
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decided that the FTT had assumed, without evidence, that there was a rule that indefinite leave to remain would be granted under the Legacy Programme where there was residence of 6-8 years and no conviction attracting a sentence of 12 months or more, and on that basis found that the causation requirement in section 40(3) was not made out, which was a further error of law.
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In our directions, we sought assistance from the parties in relation to a number of issues that we considered foreseeably might arise at this re-making hearing. We received a skeleton argument from the Secretary of State (late) purporting to address those issues, as well as a separate note making submissions on a perceived conflict between the authorities of this Tribunal and the Special Immigration Appeal Commission (“SIAC”) as to the admissibility of post-decision evidence in a deprivation appeal. Contrary to our directions, we did not receive a skeleton on behalf of Mr Hoti. At the start of the hearing however, Mr Toal, counsel for Mr Hoti, confirmed that (a) the challenge was confined to whether the Secretary of State was lawfully satisfied that Mr Hoti’s naturalisation as a British citizen was “obtained by means of” his admitted frauds; (b) that his challenge was based on the documents that were before the Secretary of State at the time of the Decision, and not on any post-decision evidence, and (c) that no Article 8 ground was being relied on. Many of the issues on which we had sought assistance, as well as the question of the conflict of authorities on the admissibility of post-decision evidence, therefore have fallen away.
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It is in those circumstances that the matter resumed before us in order to re-make the decision.
B. FACTUAL BACKGROUND
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We set out the facts and the Decision in detail at paras 6-21 of the error of law decision. For present purposes it suffices to note the following, which is not in dispute:
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Mr Hoti arrived in the UK and claimed asylum in April 2001. In that application, he dishonestly claimed:
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to be a Kosovan national, born in Luqan, in Serbia, close to the Kosovan border (he is Albanian and was born in Kukes, in Albania);
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to have been born on 25 August 1987 (his real date of birth is 25 August 1986); and
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that he did not know his parents’ whereabouts.
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His asylum claim was initially refused on the basis that he had not complied with a request for a completed Statement of Evidence Form (“SEF”). It was later discovered that Mr Hoti had in fact timeously completed and returned his SEF. By that time however there were no longer difficulties for Kosovans in Serbia sufficient to give rise to a protection claim, but he was thought to be an unaccompanied minor. A decision was accordingly made by the Secretary of State, on 5 November 2004, to grant him Discretionary Leave to Remain until 24 August 2005, that is, the day before his claimed 18th birthday.
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On 20 July 2005, shortly before his Discretionary Leave was to expire, Mr Hoti applied to extend his leave to remain. In that application he continued to rely on the false particulars previously provided.
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No decision was ever made by the Secretary of State in relation to Mr Hoti’s 2005 application. However, on 7 April 2008, he completed a Legacy Casework Programme Questionnaire. We have set out how the Legacy Programme operated at para 12 of the error of law decision.
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On 30 April 2010 Mr Hoti was granted Indefinite Leave to Remain under the Legacy Programme. As we noted in the error of law decision, the Secretary of State did not record the basis for that grant in the Decision (or otherwise in these proceedings).
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On 15 October 2013, Mr Hoti applied to naturalise as a British citizen, completing Form AN. This asks a number of questions (set out at para 16 of our error of law decision) relevant to the question of whether an applicant is of good character. Although Mr Hoti gave details of his criminal offending (a conviction in 2008 for possession/control of an article for use in fraud) and his caution in 2005 for travelling on a railway without using a ticket, in response to the question ‘Have you ever engaged in any other activities which may indicate that you may not be considered a person of good character?’, Mr Hoti ticked the ‘no’ box. He signed to declare that ‘to the best of my knowledge and belief, the information given in this application is correct. I know of no reason why I should not be granted British Citizenship’. The information given in the application was however not correct, in that Mr Hoti continued to use his false date of birth and to allege that he and his parents had been born in Kosovo. He now accepts that he was dishonest in the provision of this false information. Mr Hoti also ticked to confirm ‘I have read and understood the Guide AN and the Booklet AN’, to which we will return below.
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On 14 January 2014, Mr Hoti’s naturalisation application was granted and he was issued with a certificate of naturalisation. From Mr Hoti’s perspective all was then well for a period of 5 years. However, Mr Hoti’s frauds were discovered when, as a result of his father applying for a visa on 19 September 2019, checks were undertaken and Mr Hoti’s true details and his fraud were discovered.
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