Upper Tribunal (Immigration and asylum chamber), 2023-08-06, UI-2023-000116 & UI-2023-000117
| Appeal Number | UI-2023-000116 & UI-2023-000117 |
| Hearing Date | 03 May 2023 |
| Date | 06 August 2023 |
| Published date | 22 August 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: UI-2023-000116, UI-2023-000117
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Appeal Nos: UI-2023-000116 UI-2023-000117 First-tier Tribunal Nos: DC/50020/2022 DC/50021/2022
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THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 6 August 2023
Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
DEPUTY UPPER TRIBUNAL JUDGE BOWLER
Between
Secretary of State for the Home Department
Appellant
and
(1) Andre Mfade
(2) Georgina Mfade
(NO ANONYMITY DIRECTION MADE)
Respondents
Representation:
For the Appellants: Mr N. Wain, Senior Home Office Presenting Officer
For the Respondents: Mr S. Karim, instructed by Mascot Solicitors
Heard at Field House on 3 May 2023
DECISION AND REASONS
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By a decision promulgated on 23 August 2022, First-tier Tribunal Judge Barrowclough (“the judge”) allowed two linked appeals brought under section 40A(1) of the British Nationality Act 1981 (“the 1981 Act”) against two decisions of the Secretary of State to deprive two naturalised British citizens of their British citizenship dated 19 and 20 January 2022 respectively. The decisions were taken pursuant to section 40(3) of the 1981 Act. The Secretary of State now appeals against the decision of the judge with the permission of Upper Tribunal Judge Grubb.
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For ease of reference, we will refer to the appellants before the First-tier Tribunal as “the appellants”, or as the first and second appellant respectively. We will refer to the Secretary of State simply as “the Secretary of State”.
Post-hearing submissions
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Shortly after the hearing before us, the decision in Chimi (deprivation appeals; scope and evidence) Cameroon [2023] UKUT 115 (IAC) was reported. We issued directions to the parties in the following terms:
“If either party wishes to make written submissions concerning the impact, if any, of Chimi (deprivation appeals; scope and evidence) Cameroon [2023] UKUT 115 (IAC) on its submissions in these proceedings, it must do so within seven days of being sent these directions.”
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We are grateful to Mr Karim for his written submissions dated 31 May 2023 on behalf of the appellants. The Secretary of State did not respond.
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Following Chimi, there has been a further development. The Court of Appeal handed down judgment in Shyti v Secretary of State for the Home Department on 4 July 2023, which was an appeal under section 40A of the 1981 Act. The operative reasoning in Shyti concerned the failure of the First-tier Tribunal to address the entirety of the reasoning of the Secretary of State in the impugned decision. As such, we did not consider it necessary to seek further submissions on that matter.
Deprivation of citizenship
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Section 40(3) of the 1981 Act provides:
“(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.”
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The criteria contained in section 40(3)(a) to (c) operate as a condition precedent to the Secretary of State’s exercise of the section 40(3) power. The role of a tribunal hearing an appeal against a decision of the Secretary of State to deprive a person of their British citizenship has been the subject of much litigation recently. Prior to R (oao Begum) v Secretary of State for the Home Department [2021] UKSC 7, it was understood that the tribunal must decide for itself whether one of the statutory conditions precedent was met. Begum concerned proceedings before the Special Immigration Appeals Commission (“SIAC”) and related to decisions taken on grounds of national security under section 40(2) of the 1981 Act.
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In Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 00238 (IAC), a Presidential panel held that the Begum approach to section 40(2) cases applied to section 40(3) cases. See paragraph 1 of the headnote:
“(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.”
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Whether the Begum approach may properly be regarded as extending to section 40(3) cases was a matter of dispute before the judge below, to which we turn in due course. At the risk of oversimplification, the conclusions of this tribunal in Ciceri were that the role of tribunal in a section 40A(1) appeal is now commensurate with a public law review of the impugned decision, rather than a “full merits review”. The tribunal must ask itself whether the Secretary of State was entitled to be “satisfied” that the statutory condition precedent was met, by reference to established public law principles. It is not to decide that issue for itself, as though it, the tribunal, temporarily assumed the decision making powers of the Secretary of State.
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But a tribunal still has a primary decision making function in relation to any human rights grounds of appeal that are pursued. The position was summarised in these terms in Ciceri:
“(2) If the relevant condition precedent is established, the Tribunal must determine whether the rights of the appellant or any other relevant person under the ECHR [European Convention on Human Rights] are engaged (usually ECHR Article 8). If they are, the Tribunal must decide for itself whether depriving the appellant of British citizenship would constitute a violation of those rights, contrary to the obligation under section 6 of the Human Rights Act 1998 not to act in a way that is incompatible with the ECHR.”
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These proceedings concern the interaction between a judge’s fact-finding functions in relation to the human rights issues and the more limited public law review of the condition precedent issue.
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See also the headnote to Chimi, concerning a sequential approach to be followed by judges when hearing section 40A appeals, and the interaction between the public law and human rights stages of that analysis. We will turn to the relevant extracts from Chimi in due course.
Factual background
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The appellants, who are brother and sister, are naturalised British citizens of Togolese descent, born in July 1985 and March 1983 respectively. They were brought to the UK as small children by their parents, arriving in 1991. Their parents claimed asylum, with their father, Yousouf Mfade, as the main applicant. The application was refused. The family, including the appellants, were eventually granted indefinite leave to remain as Yousouf Mfade’s dependents. In 2005 once they had attained the age of majority, the appellants applied to naturalise as British citizens. Their applications were successful, and they naturalised in May and April 2006 respectively.
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In February 2017, the appellants’ British passports were revoked. On 16 November 2021, the Secretary of State informed their solicitors (who had by this stage been engaged to contest the revocation of the passports), that she was minded to deprive them of their British citizenship under section 40(3) of the 1981 Act. That process culminated in the Secretary of State deciding to deprive each of the appellants of their citizenship pursuant to the decisions of 19 and 20 January 2022 that were appealed to the judge below (“the deprivation decisions”).
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In the deprivation decisions, the Secretary of State explained that Yousouf Mfade had been charged with multiple immigration offences. The Yousouf Mfade identity was false, as were the details the appellants provided concerning their identities in their naturalisation applications. The Secretary of State had invited the appellants to provide their original birth certificates, but they had not done so. They had made multiple false declarations in their dealings with the Home Office, thereby undermining their credibility. Yousouf Mfade’s fingerprints revealed that his true identity was Hendrik Witke, and that he had been convicted of driving offences committed in 2004 in that name. Neither those offences, nor his true identity, had been declared to the Secretary of State during the immigration or naturalisation processes, meaning that the appellants’ British citizenship had been obtained by means of fraud, misrepresentation or the concealment of a material fact. The appellants were responsible for their acquisition of indefinite leave to remain and British citizenship. The condition precedent in section 40(3) of the 1981 was met.
Further, in the case of each appellant, the Secretary of State concluded that it would be reasonable and...
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