Upper Tribunal (Immigration and asylum chamber), 2022-11-16, [2022] UKUT 00337 (IAC) (Muslija (deprivation: reasonably foreseeable consequences))
| Judge | Upper Tribunal Judge Allen, Upper Tribunal Judge Stephen Smith |
| Status | Reported |
| Published date | 16 December 2022 |
| Date | 16 November 2022 |
| Hearing Date | 15 September 2022 |
| Appeal Number | [2022] UKUT 00337 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | deprivation: reasonably foreseeable consequences |
UT Neutral citation number: [2022] UKUT 00337 (IAC)
Muslija (deprivation: reasonably foreseeable consequences) Albania
Upper Tribunal
(Immigration and Asylum Chamber)
Heard at Field House
THE IMMIGRATION ACTS
Heard on 15 September 2022
Promulgated on 16 November 2022
Before
UPPER TRIBUNAL JUDGE ALLEN
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
artan muslija (aka Gerim Murizi)
(ANONYMITY DIRECTION not made)
Respondent
Representation:
For the Appellant: Mr D. Clarke, Senior Home Office Presenting Officer
For the Respondent: Mr M. Moksud, Counsel, instructed by Metro Law Solicitors
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The reasonably foreseeable consequences of the deprivation of citizenship are relevant to an assessment of the proportionality of the decision, for Article 8(2) ECHR purposes. Since the tribunal must conduct that assessment for itself, it is necessary for the tribunal to determine such reasonably foreseeable consequences for itself.
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Judges should usually avoid proleptic analyses of the reasonably foreseeable consequences of the deprivation of citizenship. In a minority of cases, it may be appropriate for the individual concerned to demonstrate that there is no prospect of their removal. Such cases are likely to be rare. An example may be where (i) the sole basis for the individual’s deprivation under section 40(2) is to pave the way for their subsequent removal on account of their harmful conduct, and (ii) the Secretary of State places no broader reliance on ensuring that the individual concerned ought not to be allowed to enjoy the benefits of British citizenship generally.
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An overly anticipatory analysis of the reasonably foreseeable consequences of deprivation will be founded on speculation. The evidence available and circumstances obtaining at the time of making of the deprivation order (and the appeal against that decision) are very likely to be different from that which will be available and those which will obtain when the decision regarding a future application or human rights claim is later taken.
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Exposure to the “limbo period”, without more, cannot possibly tip the proportionality balance in favour of an individual retaining fraudulently obtained citizenship. That means there are limits to the utility of an assessment of the length of the limbo period; in the absence of some other factor (c.f. “without more”), the mere fact of exposure to even a potentially lengthy period of limbo is a factor unlikely to be of dispositive relevance.
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It is highly unlikely that the assessment of the reasonably foreseeable consequences of a deprivation order could legitimately extend to prospective decisions of the Secretary of State taken in consequence to the deprived person once again becoming a person subject to immigration control, or any subsequent appeal proceedings.
DECISION AND REASONS
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As confirmed in Ciceri v Secretary of State for the Home Department [2021] UKUT 238 (IAC); [2021] Imm AR 1909, a judge hearing an appeal against a decision of the Secretary of State to deprive a person of their British citizenship under section 40(2) or (3) of the British Nationality Act 1981 (“the 1981 Act”) must consider (i) the “reasonably foreseeable consequences” of the decision but (ii) should not conduct a “proleptic analysis” of the individual’s removal. This decision seeks address the boundary between (i) and (ii) and to give guidance as to the factors to be considered as part of those assessments.
Factual background
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These proceedings commenced in the Upper Tribunal as an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Brannan (“the judge”) promulgated on 21 July 2021, in which he allowed an appeal brought by Artan Muslija against a decision of the Secretary of State dated 12 January 2019 to deprive him of his British citizenship.
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By a decision dated 13 April 2022 (“the error of law decision”), Upper Tribunal Judge Stephen Smith found that the decision of the judge involved the making of an error of law, set it aside with no findings of fact preserved, and gave directions for the appeal to be reheard in this tribunal. We summarise the error of law decision at paragraphs 41 to 45, below, and set out the relevant extracts in the Annex to this decision.
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It was in those circumstances that the matter resumed before us, sitting as a panel, in order to remake the decision.
THE LAW
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A person may acquire naturalisation as a British citizen in accordance with section 6(1) of the 1981 Act:
“6.- Acquisition by naturalisation.
(1) If, on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.”
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Schedule 1 to the 1981 Act sets out the requirements for naturalisation as a British citizen. This includes at paragraph 1(1)(b) “that he is of good character “. Good character is not defined under the 1981 Act. The Secretary of State has adopted guidance from time to time on the meaning of the term.
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Section 40 of the 1981 Act empowers the Secretary of State to deprive a person of their British citizenship in certain circumstances:
“(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.
(3) The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—
(a) fraud,
(b) false representation, or
(c) concealment of a material fact.”
The criteria in section 40(2) and (3) operate as a condition precedent to the Secretary of State’s exercise of her power to deprive a person of their citizenship. The power to deprive is discretionary (“the Secretary of State may”), with the consequence that the Secretary of State must decide whether to exercise the power to deprive, even if she is satisfied that a statutory condition precedent to doing so is met.
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There is a right of appeal to the First-tier Tribunal against the Secretary of State’s decision stating her intention to exercise the power under section 40, rather than against the deprivation order itself: see section 40A(1). It follows that, during the currency of any pending proceedings challenging a decision to make a deprivation order, the individual concerned will remain a British citizen.
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Article 8 of the European Convention on Human Rights (“the ECHR”) provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The role of a tribunal in an appeal under section 40A of the British Nationality Act 1981
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The role of a tribunal in this jurisdiction in an appeal brought under section 40A of the 1981 Act must be understood through the lens of R (oao Begum) v Secretary of State for the Home Department [2021] UKSC 7; [2021] Imm AR 879 and Laci v Secretary of State for the Home Department [2021] EWCA Civ 769; [2021] Imm AR 1410. In Ciceri, the President held that the legal principles regarding appeals under section 40A are as follows (with bold emphasis added):
“Following KV (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 2483, Aziz v Secretary of State for the Home Department [2018] EWCA Civ 1884, Hysaj (deprivation of citizenship: delay) [2020] UKUT 128 (IAC), R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7 and Laci v Secretary of State for the Home Department [2021] EWCA Civ 769 the legal principles regarding appeals under section 40A of the British Nationality Act 1981 against decisions to deprive a person of British citizenship are as follows:
(1) The Tribunal must first establish whether the relevant condition precedent specified in section 40(2) or (3) of the British Nationality Act 1981 exists for the exercise of the discretion whether to deprive the appellant of British citizenship. In a section 40(3) case, this requires the Tribunal to establish whether citizenship was obtained by one or more of the means specified in that subsection. In answering the condition precedent question, the Tribunal must adopt the approach set out in paragraph 71 of the judgment in Begum, which is to consider whether the Secretary of State has made findings of fact which are unsupported by any evidence or are based on a view of the evidence that could not reasonably be held.
(2) If the relevant condition precedent is established, the...
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