Upper Tribunal (Immigration and asylum chamber), 2022-01-24, DC/00135/2019
| Appeal Number | DC/00135/2019 |
| Hearing Date | 27 October 2021 |
| Date | 24 January 2022 |
| Published date | 20 September 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: DC/00135/2019
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Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: DC/00135/2019
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THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 27 October 2021 |
On 24 January 2022 |
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Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
SYED TAHSEEN AHMED
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Solomon, Counsel, instructed by Woolfe & Co Solicitors
For the Respondent: Mr Lindsay, Senior Presenting Officer
DECISION AND REASONS
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On 20 April 2021, I issued my first decision in this appeal. I found that the First-tier Tribunal (Judge Howorth) had erred materially in law in dismissing the appellant’s appeal. I set aside the FtT’s decision and directed that the decision on the appeal would be remade in the Upper Tribunal after a de novo hearing. The resumed hearing came before me on 27 October 2021 and this is my decision on the appellant’s appeal. I regret the delay in finalising this decision, which resulted from my infection with Covid-19 after the resumed hearing.
Background
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Much of what follows is taken from the helpful chronology prepared by the appellant’s solicitors. (Albeit that some of the chronology is contentious, as will shortly become clear.)
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The appellant is a Pakistani national who was born on 6 January 1976. On 18 March 2001, he married a woman called Farhat Sbuhi in Pakistan. Their daughters Aila and Aleena were born on 28 August 2002 and May 2004 respectively. On 5 March 2006, the appellant entered the United Kingdom, holding entry clearance which conferred leave to enter as a student. The appellant and his wife had a third daughter, Syeda, on 19 October 2006.
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Two months later, whilst in the United Kingdom, the appellant met a Polish woman named Weronika Aneta Lebkowska and started a relationship with her. In October 2008, the appellant received a document from Pakistan entitled ‘Divorce Deed’. It was signed by the appellant’s wife and by two witnesses in the presence of a Notary Public. It stated as follows:
I, Farhat Sabohi (DOB 01-12-1978) daughter of Siddique Hussain Shah, Caste Syed, resident of village Pang Piran, Tehsil and District Kotli (Azad Kashmir) Pakistan.
WHEREAS, the executant marriage with Mr Syed Tahseen Ahmed (DOB 06-01-1976), caste Syed, resident of village Pang Piran, Tehsil & District Kotli (Azad Kashmir) Pakistan, took place on 18-03-2001 according to Islamic Law. The relationship between the executant and her husband referred above are unpleasant since last 3 years continuously despite of considerable efforts that their relations will be restored and rehabilitated but in vein [sic]. Now the executant with her free will, without any compulsion or coercion, do hereby pronounces [sic] triple divorce, divorce, divorce, divorce by uttering the words from her mouth and thereby separates the said Mr Syed Tahseen Ahmed from his marital ties permanently. This divorce is irrevocable Mr Syed Tahseen Ahmed will have full rights to enter into the second marriage after expiration of three months statutory period of IDAT, to which the executant will not have any objection.
This divorce deed has been duly executed and completed in the presence of two witnesses.
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On 28 May 2009, the appellant made an application for a residence card as the extended family member of an EEA national (Ms Lebkowska), based upon their durable relationship. It is accepted that he submitted the Divorce Deed to the respondent in support of this application.
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On 16 September 2009, the appellant and Ms Lebkowska underwent an Islamic marriage ceremony at a mosque in Luton. On 27 July 2010, the appellant was granted a residence card as Ms Lebkowska’s extended family member.
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On 1 January 2011, the appellant travelled to Pakistan and remained there for 34 days. He had sexual intercourse with his wife during this time and their fourth child, a son named Hamza, was born on 24 September 2011.
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On 21 July 2015, the appellant made an application for permanent residence, submitting that he had resided in the UK in accordance with the EEA Regulations for five years. That submission was based upon his relationship with Ms Lebkowska. The application was refused on 14 December 2015, as the respondent concluded that Ms Lebkowska was not registered with the Worker Registration Scheme. The appellant appealed to the FtT.
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In December 2016, whilst the appellant’s appeal to the FtT was pending, he separated from Ms Lebkowska and moved out of the property they had been sharing. On 21 February 2017, the appellant’s appeal against the refusal of a permanent residence card was heard by Judge Heatherington, sitting in Birmingham. The appellant was represented by Mr Solomon, the respondent by a Presenting Officer. The appellant attended the hearing, Ms Lebkowska did not, although she provided a signed statement.
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The judge was told that the appellant and Ms Lebkowska had separated in December 2016. He considered that to be immaterial as ‘the five year qualification period was completed in 2015’: [7.7]. He was satisfied that Ms Lebkowska had been a qualified person in the UK for upwards of seven years. He found that she had registered her employment under the Workers Registration Scheme: [7.8]. The judge therefore allowed the appeal on the basis that the appellant was entitled to permanent residence.
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The respondent did not seek permission to appeal to the Upper Tribunal and, on 12 July 2017, she issued the appellant with a Permanent Residence Card.
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In August 2017, the appellant travelled again to Pakistan and reconciled (or is said to have reconciled) with his wife. On 30 July 2018, he made an application for naturalisation. The application was approved on 20 August 2018. The appellant attended his naturalisation ceremony nine days later. He subsequently applied for and was issued with a British passport.
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On 17 December 2018, the appellant’s wife and children applied for entry clearance as his relatives. That application prompted the Secretary of State to write to the appellant on 12 April 2019. In her letter, she stated that she had reason to believe that the appellant had obtained his British citizenship as a result of fraud. The allegation was summarised in this way:
The Secretary of State is in possession of information confirming that you obtained status in the United Kingdom as a result of a bigamous marriage to the EEA national ‘Weronika Aneta Lebkowska’ whilst you were still married and in a subsisting relationship with Pakistan national ‘Farhat Sbuhi’.
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The appellant’s solicitors responded to the Secretary of State’s letter on 1 May 2019. It was submitted that there had been no fraud or deception by the appellant. The burden was on the Secretary of State and no evidence had been adduced. The appellant and his wife were said to be first cousins who lived close to each other. The respondent had been ‘consistently informed of the marriage’ during the appellant’s applications for residence and nationality. The appellant had provided the Divorce Deed, indicating that Ms Sbuhi had separated from the appellant and wanted a divorce. They had been separated and not in a subsisting relationship between 2006 and 2017. Contact had only been in connection with the children and did not amount to a genuine and subsisting relationship as defined in the Immigration Directorate Instructions. Even if there was fraud, which was disputed, the proper course would be to exercise discretion in the appellant’s favour and not to deprive him of his British citizenship. Statements were made by the appellant and his wife in support of these submissions.
The Respondent’s Decision
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On 29 November 2019, the respondent made a decision to deprive the appellant of his citizenship, under s40 of the British Nationality Act 1981. She had decided that the appellant’s British citizenship had been obtained by fraud and that s40(3) applied. The letter is poorly structured and repetitive but the central allegations were summarised in the following excerpt, from [21] of the letter:
The basis of your EEA2 application and your permanent residence application was your relationship with Weronika Aneta Lebkowska. You stated on these applications that you were ‘the unmarried partner of the EEA national and in a durable lasting relationship’. You also provided the Pakistani Divorce Deed documents confirming the marriage with your wife, Farhat Sabuh in Pakistan had ended. Your residence/grant of further leave to remain was granted solely on the fact that you were in a relationship with an EEA national, Weronika Aneta Lebkowska and you were divorced from your previous marriage. If it had been known that you were still married to Farhat Sabuh and the Pakistani Divorce Deed document was false, you would not have been granted residency. It is therefore evident that your application would have been refused under Section 1.3 and 9.3 [of the Good Character guidance] if the nationality caseworker had known that you had presented false...
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