Upper Tribunal (Immigration and asylum chamber), 2023-07-10, UI-2023-000601
| Appeal Number | UI-2023-000601 |
| Hearing Date | 05 May 2023 |
| Date | 10 July 2023 |
| Published date | 25 July 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2023-000601
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-000601 |
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First-tier Tribunal No: DC/50030/2022 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 10 July 2023
Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
Secretary of State for the Home Department
Appellant
and
Iltaz Ali Khan
(NO ANONYMITY DIRECTION MADE)
Respondent
Representation:
For the Appellant: Mr E. Tufan, Senior Home Office Presenting Officer
For the Respondent: Mr M. Saleem, Malik and Malik Solicitors
Heard at Field House on 5 May 2023
DECISION AND REASONS
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The issue at the heart of this appeal is whether a panel of the First-tier Tribunal made a mistake of fact when concluding that, at the time the Secretary of State considered an application for naturalisation as a British citizen from an applicant purporting to be a citizen of Afghanistan, she had before her evidence that he was, in fact, a citizen of Pakistan, with a history of entry clearance applications in his Pakistani identity?
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By a decision dated 26 January 2023, First-tier Tribunal Judges LK Gibbs and D Hyland (“the judges”) allowed an appeal brought by Iltaz Ali Khan, a naturalised British citizen of Pakistani origin, against a decision of the Secretary of State dated 1 February 2022 to make an order depriving Mr Khan of his British citizenship. The Secretary of State now appeals against the decision of the First-tier Tribunal with the permission of First-tier Tribunal Judge Gumsley.
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For ease of reference, I will refer to the appellant before the First-tier Tribunal as “the appellant” in this decision.
Factual background
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The appellant is a citizen of Pakistan. In early 2001, he arrived in the UK with entry clearance issued to him in his Pakistani identity, Iltaz Ali Khan. On 8 January 2001, he claimed asylum as Aqeel Jan, falsely claiming to be a citizen of Afghanistan who feared the Taliban. The claim was refused and Mr Jan’s appeal to the Immigration Adjudicator was dismissed by a determination promulgated on 27 July 2001.
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The appellant then left the country and applied, as Mr Khan, for entry clearance on multiple occasions, each time unsuccessfully. He appears to have re-entered the country at some point, having been issued a driving licence in his false Afghan identity in November 2008.
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In 2009, the appellant’s solicitors, Malik and Malik, applied for indefinite leave to remain on behalf of Mr Jan, on the basis of the length of his residence. The application falsely claimed that Mr Jan had been in the United Kingdom ever since his asylum claim was refused. The application for indefinite leave to remain was ultimately successful, and the appellant (as Mr Jan) was granted indefinite leave to remain on an exceptional basis outside the rules on 25 October 2010. Mr Jan applied for naturalisation as a British citizen on 18 January 2011. Mr Jan became a British citizen on 1 April 2011.
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On 28 July 2014, the Home Office received a “referral” suggesting that Mr Jan was not, and never had been, a former Afghan asylum seeker in fear of the Taliban. He was, in fact, Mr Khan, a citizen of Pakistan. In October 2021, the Secretary of State informed the appellant of her concerns. Exchanges of correspondence followed, culminating in the decision of the Secretary of State dated 1 February 2022 to deprive the appellant of his British citizenship on the basis that it had been obtained by means of fraud, false representation or the concealment of a material fact, pursuant to section 40(3) of the British Nationality Act 1981 (“the 1981 Act”).
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The appellant appealed against the decision, and his appeal was heard by the First-tier Tribunal on 17 January 2023.
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In their decision, the judges found that the Secretary of State was entitled to be satisfied that the condition precedent contained in section 40(3) of the 1981 Act was satisfied (paragraph 18). They also concluded that the public interest in the deprivation of citizenship of was sufficient to outweigh any interferences with the appellant’s Article 8 ECHR rights that would be caused by the deprivation of his citizenship (paragraph 25).
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The operative basis for the judges’ decision to allow the appeal may be found at paragraphs 26 to 31. At paragraph 26, they said, “the appeal can only be allowed if we are satisfied that the respondent has acted in a way that no reasonable Secretary of State could have acted.” At paragraph 27 they made the following findings:
“The procedural irregularity relied upon in this case arises from the respondent’s failure to have regard to her own policy. Based on the contents of the appellant’s Home Office file we find that the respondent had the evidence before her regarding the appellant’s immigration history at the time that she made the decision to grant him ILR and later citizenship. The appellant’s file clearly sets out, in detail, all of the entry clearance applications made between 2004-2008 and the use of false documents within these. The respondent was also aware that his appeal had been dismissed and that the immigration judge had not been satisfied that the appellant was a citizen of Afghanistan.”
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That, the judges found, demonstrated that the Secretary of State had failed to apply or follow paragraph 55.7.10 of the Nationality Instructions, which provides:
“55.7.10.2 Evidence that was before the Secretary of State at the time of application but was disregarded or mishandled should not in general be used at a later stage to deprive of nationality. However, where it is in the public interest to deprive despite the presence of this factor, it will not prevent the deprivation.”
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At paragraph 29, the judges found that the Secretary of State had “entirely failed” to take her own policy into account. She had evidence before her that the appellant had used two identities to make entry clearance applications, from outside the United Kingdom, at the time he claimed to have been resident in the United Kingdom as a failed Afghan asylum seeker. That information had been before the Secretary of State at the time she decided to grant the appellant’s naturalisation application. Accordingly, evidence relating to such matters should not, in accordance with the policy outlined above, have been relied upon by the Secretary of State to pursue the deprivation of the appellant’s British citizenship. The judges allowed the appeal.
Issues on appeal to the Upper Tribunal
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The single ground of appeal contends that the judges made a mistake of fact when concluding that the Secretary of State had before her evidence of the appellant’s past deception at the time she granted his application for naturalisation.
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Mr Tufan submitted that there was no evidence to link the appellant’s two identities before the Secretary of State at the time she granted his application for naturalisation. There was nothing before the Secretary of State to demonstrate that she was aware of the situation at the time. Mr Tufan also submitted that the judges misapplied the policy in any event, since, even where the Secretary of State had disregarded or mishandled the information, the policy nevertheless permits her to take a deprivation decision in any event.
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Mr Saleem submitted that the appellant’s case notes demonstrate that the Secretary of State had linked the Khan and Jan identities as early as 2008. He also submitted that it was not open to the Secretary of State to expand her grounds of appeal to challenge the judges’ application of the policy. The appeal was brought on the narrow basis that there was an error of fact. It was inappropriate for the Secretary of State to expand the challenge before the Upper Tribunal to encompass broader grounds of challenge.
Scope of proceedings
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The Secretary of State’s grounds of appeal focused solely on the judges’ findings of fact that the evidence pertaining to the appellant’s fraud had been “before” the Secretary of State at the time she considered the appellant’s application for naturalisation. Although Mr Tufan sought to expand the scope of the challenge to other bases, including a misapplication of the policy itself, he made no formal application for permission to appeal on any additional basis.
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Procedural rigour is important in this jurisdiction. The Upper Tribunal is a permission-based jurisdiction (see Joseph (permission to appeal requirements) [2022] UKUT 218 (IAC) at paragraph 1). The process of obtaining permission to appeal requires a party seeking to challenge a decision of the First-tier Tribunal to identify the alleged errors of law in the decision of the First-tier Tribunal at the permission stage. In turn, that enables the parties to identify the issues of relevance before a hearing and attend ready to address the Upper Tribunal on the previously identified issues. As the Presidential panel in Joseph observed at paragraph 1, “the process for obtaining permission to appeal, and the basis upon which it may be granted, perform important regulatory functions”.
I accept Mr Saleem’s...
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