Upper Tribunal (Immigration and asylum chamber), 2023-06-13, UI-2022-003914
| Appeal Number | UI-2022-003914 |
| Hearing Date | 15 May 2023 |
| Date | 13 June 2023 |
| Published date | 28 June 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Case No: UI-2022-003914
First-tier Tribunal No: DC/50041/2020
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-003914 First-tier Tribunal No: DC/50041/2020 |
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THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 13 June 2023
Before
UPPER TRIBUNAL JUDGE KOPIECZEK
Between
The Secretary of State for the Home Department
Appellant
and
A M
(ANONYMITY ORDER MADE)
Respondent
Representation:
For the Appellant: Mr T Melvyn, Senior Home Office Presenting Officer
For the Respondent: Mr P Nathan, Counsel instructed by Oak Solicitors
Heard at Field House on 15 May 2023
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) is granted anonymity.
No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant (and/or other person). Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
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Although the appellant in these proceedings is the Secretary of State, I continue to refer to the parties as they were before the First-tier Tribunal (“FtT”).
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On 24 October 2018 the Secretary of State made a decision to deprive the appellant of his British citizenship on the basis that he had obtained that citizenship fraudulently.
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The further background to the appeal is that the appellant came to the UK on 22 August 1999, claiming to be Kosovan. His claim for asylum was refused in a decision dated 16 January 2001. The appellant appealed that decision and his appeal came before Adjudicator E. Martins who allowed the appeal in a decision promulgated on 30 December 2003.
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Following that decision, the appellant was issued with a certificate of naturalisation as a British citizen on 26 May 2005.
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However, on 4 October 2013 he was convicted of being knowingly concerned in the supply or production of drugs and received a sentence of seven years’ and one month imprisonment on 23 December 2013. On 16 April 2018 the respondent wrote to the appellant notifying him that information had come to light via the British Embassy in Tirana to the effect that he was someone of Albanian nationality (rather than Kosovan). It is said that the appellant did not receive this correspondence and it was returned to the respondent in the post.
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It appears that the first time that the appellant became aware of the respondent’s view as to his true nationality, and therefore his British citizenship, was when he was trying to fly from Montenegro to London. Immigration officials told him that his British passport had been revoked. When the appellant finally returned to the UK his solicitors obtained his file from the respondent via a subject access request.
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The appellant’s appeal against the 24 October 2018 decision to deprive him of his British citizenship came before First-tier Tribunal Judge M. H. D. Cohen at a hearing on 26 May 2022. She allowed the appeal, concluding that the respondent had not established that the condition precent for depriving the appellant of his British citizenship was met. At issue before the FtJ was whether he did obtain his British citizenship by fraud.
The FtJ’s decision
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The FtJ identified the documents that she had before her. She referred to the argument on behalf of the appellant, contained in the skeleton argument, that he had established that he was a member of the Ashkali minority in Kosovo in respect of which he had relied primarily on official documentation issued by the United Nations Mission In Kosovo (UNMIK). The appellant’s submission was that the respondent had failed to give any consideration to Adjudicator Martins’ findings in the allowed appeal, and the evidential basis for those findings. In support of the appeal the appellant also provided a copy of a Kosovan passport.
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At [14] the FtJ said this:
“14. At the commencement of the hearing Ms Davies, for the Respondent, acknowledged that the Respondent had not grappled with the ASA [appellant’s skeleton argument] and the recently supplied documents including the Appellant’s Kosovan passport. Ms Davies stated that it was not appropriate to adjourn to allow the Respondent to verify the passport due to a lack of resources in the verification department. Ms Davies stated that the Respondent had no particular issue with the documents.”
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In evidence the appellant said that he obtained his Kosovan passport on 4 September 2019. It was issued by the Kosovan authorities and handed to him a week after that date.
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The FtJ gave an appropriate self-direction on the burden and standard of proof and in relation to s.40(3) of the British Nationality Act 1981 which she quoted as follows:
“(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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Under the subheading “Findings and reasons” the FtJ referred to various authorities, including R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7 and Laci v Secretary of State for the Home Department [2021] EWCA Civ 769 in terms of the legal principles to be applied, and in the context of the decision of the Upper Tribunal in Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 00238 (IAC). The FtJ quoted a headnote from Chiceri.
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At [23] the FtJ noted that Adjudicator Martins found firstly, that the appellant was from the Ashkali community in Kosovo, on the basis of which he feared return, and secondly that there was documentary evidence showing that the appellant’s mother and brother had been killed in Kosovo, with their death certificates recording that they were killed by firearms.
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She also noted that Adjudicator Martins made reference to evidence from UNMIK, some of which is in the Home Office bundle and refers to the appellant as a member of the Ashkali minority group. She also noted that the UNMIK evidence was accepted by the Adjudicator. The FtJ correctly identified that the findings made by Adjudicator Martins must be her starting point.
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At [26] the FtJ said that she had carefully considered the evidence referred to in the respondent’s decision to deprive the appellant of his British citizenship, dated 24 October 2018. She said that the documents appeared to be copies but that they were in any event “extremely unclear”. She said that it was not even possible to read the full names or remaining details clearly. She noted that it was said in the respondent’s decision that “evidence came to light via the British Embassy in Tirana in relation to those documents but the FtJ said that there was no explanation as to what correspondence prompted those documents or the queries that were raised in the correspondence.
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At [27] she referred to the appellant’s witness statement in which he said that he had had sight of the documents provided by the Secretary of State but “does not recognise them”. As to the apparent registration of him, his father and his brother in the Albanian records, the appellant stated that the dates of birth for his and his brother were incorrect. His father’s date of birth was correctly recorded and in his witness statement the appellant accepted that it would be an incredible coincidence if this was another family.
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The FtJ noted that in the appellant’s witness statements he said that he could only assume that the registration of the male members of his family with the Albanian authorities may have been done either by his father or grandfather in relation to old trading systems that his family, as Ashkali, were involved with before he left Kosovo. That community, the appellant’s witness statement said, dealt in trading livestock and going to markets throughout the Balkans. His explanation was that they were stateless people for many centuries and in the years before international borders trade would have taken place within all the large markets within the wider region. Once stricter borders were in place, in order to continue that trade and be able to access the relevant markets, it was quite possible that his father or grandfather may have registered them with the Albanians without the appellant knowing, the witness statement said, and indeed also with the Bulgarians or the Greeks, there having been no need at that time to register with the individual space of the former Yugoslavia, owing to the free movement at that time between States. In his witness statement the appellant also reiterated that the UNMIK documents were genuine and that he was born and raised in Kosovo.
The FtJ referred to the appellant’s second witness statement in which he explained that en route to the UK, when he learned of the difficulties with his British passport, he...
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