Upper Tribunal (Immigration and asylum chamber), 2023-09-05, UI-2022-005383
| Appeal Number | UI-2022-005383 |
| Hearing Date | 14 August 2023 |
| Date | 05 September 2023 |
| Published date | 21 September 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Case No: UI-2022-005383
First-tier Tribunal No: DC/00013/2022
DC/50212/2021
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-005383 First-tier Tribunal No: DC/00013/2022 DC/50212/2021 |
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THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 05 September 2023
Before
UPPER TRIBUNAL JUDGE FRANCES
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
XHEVDAT DACI
(AMONYMITY ORDER NOT MADE)
Respondent
Representation:
For the Appellant: Ms S Cunha, Senior Home Office Presenting Officer
For the Respondent: Ms R Akther, instructed by Metro Law Solicitors
Heard at Field House on 14 August 2023
DECISION AND REASONS
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Although this is an appeal by the Secretary of State, I shall refer to the parties as they were in the First-tier Tribunal. The appellant is a citizen of Albania born on 13 March 1981. His appeal against deprivation of citizenship was allowed by First-tier Tribunal Judge Cohen (’the judge’) on 10 October 2022.
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The Secretary of State appealed on 8 grounds:
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The judge failed to properly apply Ciceri [2021] UKUT 238 in light of the reasoning in Begum [2021] UKSC 7;
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The judge’s reliance on Sleiman [2017] UKUT 376 was misconceived;
(3-6) The judge’s findings on delay, the 14-year policy, the disclosure of the fraud and complicity were perverse and/or inadequately reasoned;
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The judge’s reliance on 276ADE was perverse and unreasoned;
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The judge misdirected himself under Article 8 and failed to give adequate reasons.
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Permission was granted by First-tier Tribunal Judge Karbani on 16 November 2022 on the following grounds:
“2. In summary, the grounds aver the Judge made a material misdirection in law or jurisdiction, in applying ‘a further test of materiality’ contrary to Ciceri, and there is no burden on the respondent to demonstrate that the condition precedent is made out. The Judge has failed to consider the respondent’s alterative basis for refusing nationality on the basis of his character or conduct. Further the Judge’s reliance on Slieman (sic) is misconceived, as it did not consider issues of character or conduct. The respondent disputes that the appellant’s documents were submitted with the wife’s application. It was perverse to find that the appellant would have benefitted from the 14 year policy when he would not have been eligible for it until 2012. There is no consideration of suitability precluding consideration under 276ADE.
3. There are arguable errors in the material facts found at [11-12] of the determination. The issues regarding the appellant’s character and conduct have not been considered in determining the Article 8 issues. The grounds disclose arguable errors of law.”
Respondent’s submissions
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Ms Cunha submitted the judge failed to adopt the public law approach in Begum and instead remade the decision and fettered the respondent’s discretion at [11] and [12]. Ms Cunha relied on Chimi [2023] UKUT 115 and submitted the judge failed to follow the correct approach. Even though the appellant entered the UK as a minor and claimed asylum, he continued the deception as an adult when he applied for a travel document and in his application for naturalisation. The judge failed to consider the respondent’s case that she would have refused citizenship on good character grounds. The judge had ignored the respondent’s position and misapplied chapter 55 of the respondent’s policy.
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Ms Cunha submitted the judge erred in law in applying a test of materiality. It was the respondent’s case that there was no chain of causation and the appellant was not of good character when he applied for citizenship. The respondent properly applied her own policy. Ms Cunha relied on Shyti [2023] EWCA Civ 770 and submitted the respondent’s power was discretionary and she may grant citizenship if satisfied the appellant was of good character. The appellant had used deception in his application form for naturalisation which was material to the grant of citizenship. There was no error of law in the respondent’s refusal to exercise her discretion in the appellant’s favour because he had continued to deceive the respondent. The deception was operative and the judge wrongly applied Sleiman.
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Ms Cunha submitted the judge had misapplied Hysaj [2020] UKUT 128. There was no delay in this case and Laci [2021] EWCA Civ 769 could be distinguished. The respondent only had evidence of the appellant’s true identity in 2020.
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The judge had erred in law in his assessment of the limbo period and had failed to give reasons for the impact on the appellant’s family. The judge had erred in law in carrying out a proleptic assessment.
Appellant’s submissions
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Ms Akther submitted the grounds were misconceived. The judge had quoted relevant caselaw and applied it correctly. The judge found that the appellant had made false representations in his applications to the home office and in his application for naturalisation. The judge then went on to consider whether the deception was material to the grant of citizenship and properly applied the respondent’s policy. Ms Akter submitted there had to be a chain of causation following Sleiman and Shyti could be distinguished because the appellant in that case was not a minor.
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Ms Akther submitted the respondent had known of the deception since 2006 when the applicant’s wife made an application for entry clearance. The respondent had delayed the decision to deprive the appellant of citizenship because she was awaiting the outcome of the nullity proceedings.
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The judge made specific findings on these issues in reviewing the respondent’s decision. The respondent accepted that the information in the wife’s application was likely to be true and therefore the respondent had notice of the appellant’s true identity. At [12] and [13] the judge considered the appellant’s character and conduct and found the chain of causation was broken as in Sleiman.
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The judge considered the reasonably foreseeable consequences of deprivation and therefore any errors of law in respect of grounds 1 to 7 were not material. The judge gave adequate reasons for the adverse impact on the appellant’s family. The appellant was the sole breadwinner and had a successful car wash business. His family would suffer if the appellant was not self-employed. The judge heard and tested the evidence and his findings were open to him.
Conclusions and reasons
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It is not in dispute that the appellant entered the UK illegally as a minor and claimed asylum using a false name, false date of birth and false place of birth, namely Kosovo. The appellant maintained his false identity throughout his asylum claim and subsequent grant of indefinite leave to remain as a refugee. The appellant applied for a travel document in 2000 and naturalisation as a British citizen using the same false identity in 2004. The appellant remained in the UK under the same false identity until 2020 when steps were taken to deprive the appellant of citizenship.
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The judge found that the appellant made false representations in his applications to the home office, gave false details on arrival, repeated these false details in his successful asylum claim and in his application for naturalisation in 2004. At [9], the judge stated:
“The appellant has admitted that he made false representations by giving a false nationality and date of birth and so the first test in Ciceri is satisfied. He stated, “The appellant made false representations which is one of the grounds which the respondent may make an order to deprive and the appellant of citizenship, applying section 40(3) of the [British Nationality Act (‘BNA’) 1981].”
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I find the judge concluded the condition precedent in section 40(3) BNA 1981 was met and the respondent may exercise her discretion to deprive the appellant of citizenship. In considering the exercise of discretion the judge considered whether the deception was material to the grant of citizenship.
In my view the judge fell into error at...
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