Upper Tribunal (Immigration and asylum chamber), 2023-10-02, UI-2023-002683
| Appeal Number | UI-2023-002683 |
| Hearing Date | 20 September 2023 |
| Date | 02 October 2023 |
| Published date | 17 October 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2023-002683 (DC/50246/2022)
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-002683 |
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First-tier Tribunal No: DC/50246/2022 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
2nd October 2023
Before
UPPER TRIBUNAL JUDGE KEBEDE
Between
TONE SHPELLA
(no anonymity order made)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A Jafar, instructed by Norton Folgate Solicitors LLP
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer
Heard at Field House on 20 September 2023
DECISION AND REASONS
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The appellant appeals, with permission, against the decision of the First-tier Tribunal dismissing her appeal against the decision to deprive her of her British nationality under section 40(3) of the British Nationality Act 1981.
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The appellant is currently a British citizen, originally of Albanian nationality. She entered the UK clandestinely on 28 October 1999 with her two children and applied for asylum, having previously been refused entry to the UK to join her husband, Mark Shpella, who had claimed asylum in the UK. The appellant’s husband had entered the UK on 19 June 1998 and had claimed asylum as a Kosovan national. He was subsequently recognised as a refugee and granted indefinite leave to remain. The appellant’s application for entry clearance was made on the basis of family reunion, giving her place of birth as Lluke, Decan in Kosovo, and stating her husband’s nationality as Albanian/ Kosovan. The appellant’s status was considered under the family reunion policy once her husband was granted refugee status, and she and her children were granted indefinite leave to remain, with entry clearance authorised. The appellant applied for a travel document on 22 August 2000, giving her place of birth and that of her two children as Skeneraj, Kosovo, and was issued with a travel document on 24 October 2000. On 19 July 2004 she submitted an application Form AN to apply to naturalise as a British citizen, giving her place of birth as Decan, Kosovo and stating that her husband and parents were Yugoslavian and that she and her husband were married in Llahush on 25 November 1984, and she completed the Good Character Requirement section confirming her good character.
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The appellant was issued with a certificate of naturalisation and attended her naturalisation ceremony on 5 April 2005 to become a British citizen.
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The appellant’s deception became apparent to the Status Review Unit of the Home Office on 18 July 2022, following an investigation into her son’s status evidence which included a family certificate from Tirana showing the appellant’s genuine identity and place of birth as Oblike, Shkoder, Albania. An investigation letter was sent to her on 25 July 2022, 18 August 2022 and 12 September 2022, but she did not reply.
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The respondent, in a decision dated 8 November 2022, concluded that the appellant’s British citizenship had been obtained fraudulently and that she should be deprived of that citizenship under section 40(3) of the British Nationality Act 1981. The respondent noted that the appellant had entered the UK and claimed asylum as a Kosovan national and had used as a sponsor her husband who had also attained his status as a result of a fraudulent identity. The respondent considered that the appellant’s deception was material to her grant of leave in the UK and her acquisition of British citizenship and that it was reasonable and proportionate to deprive her of her British citizenship. The respondent considered that there was no breach of Article 8 in so doing.
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The appellant appealed against that decision under section 40A(1) of the British Nationality Act 1981, claiming that there was insufficient evidence to establish a condition precedent. The appellant claimed that she had described her husband as Albanian/ Kosovan and had therefore informed the respondent of his true nationality. It was also claimed that she had not carried out any deception herself as she had diminished responsibility and suffered from PTSD after her father murdered her mother in 2001, and that her son held power of attorney and had completed the paperwork for her. It was also said to be relevant that the appellant had lived in the UK for over 20 years, that she was a seriously vulnerable person who was reliant upon the NHS for her medication, regular home visits and round the clock care, and that she was immobile and bedridden due to her mental health issues and chronic back pain, and that deprivation would lead to the withdrawal of her critical care and devastate her private life.
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The appellant’s appeal was heard on 4 May 2023 by First-tier Tribunal Judge Aldridge. The appellant did not give evidence but her son gave evidence via video link from their home, stating that the appellant was mostly bedridden, that she was on heavy medication and had tried to commit suicide and needed someone around her, and that she was reliant upon the NHS for mental health visits and pain management. He stated that she had been in that state for the past six to seven years. His evidence was that the appellant and his father were separated but he was in touch with his father who had had no contact from the Home Office regarding his nationality. He stated that the appellant had worked in the UK until her mental health had deteriorated around 2004 and she was mainly supported by himself and her other son. It was argued on behalf of the appellant that there was no causative link between the deception and the grant of entry clearance as the appellant’s husband had not been shown to have acted fraudulently and there had been no indication by the Home Office of an intention to take action against him in relation to his citizenship. It was not accepted that the appellant had made false declarations as all the forms had been completed by her son who had power of attorney. It was submitted that deprivation would be in breach of Article 8 as the appellant had been in the UK for 25 years with her children and would lose her entitlement to essential NHS treatment if she lost her citizenship.
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The judge concluded that the appellant had obtained her ILR on the basis of false information and had provided false representations as to her nationality and place of birth in her naturalisation application. He found that she had deliberately misled the respondent and he did not accept the assertion that she had made no false declaration. He did not accept that she was suffering from mental health issues at the time the applications were made which precluded her from being aware of or understanding the nature of her fraudulent claim and he did not accept that she was not complicit in the deception. The judge found that there was nothing in the evidence to show that there had been any adverse impact on the appellant since the decision was made or that the period of immigration status limbo between the deprivation of citizenship and a decision on removal would tip the proportionality balance in the appellant’s favour. He concluded that the respondent was entitled to exercise discretion against the appellant and that it was in the public interest to deprive her of her British citizenship. The judge accordingly dismissed the appeal.
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The appellant sought permission to appeal to the Upper Tribunal on five grounds: firstly, that the judge had erred by finding that the appellant’s nationality was material to her acquisition of nationality when her ILR had been obtained under the family reunion policy; secondly, that the judge’s reasoning and findings on the law were muddled and he appeared to have applied the standard of review to his consideration of Article 8; thirdly, that the judge had given weight to immaterial matters, namely the appellant’s lies; fourthly, that the judge had failed properly to consider the effects of withdrawal of citizenship, in particular the loss of her access to NHS treatment; and fifthly, that the judge had undertaken a flawed proportionality balancing exercise and had exaggerated the public interest factors.
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Permission was granted by the First-tier Tribunal and the matter then came before me for a hearing. Both parties made submissions.
Mr Jafar submitted that the judge failed to turn his mind to the causal link between the deception/ fraud and the grant of leave and to the fact that leave had been granted under the family reunion policy, under which nationality was irrelevant. He relied upon the case of Sleiman (deprivation of citizenship: conduct) [2017] UKUT 00367 in that respect and submitted that the judge had failed to turn his mind to the mechanism by which the appellant gained citizenship. Mr Jafar submitted that the judge had failed to apply the binding principles in Laci v Secretary of State for the Home Department [2021] EWCA Civ 769 in regard to the adverse effect of the withdrawal of the appellant’s rights and benefits as a British citizen and his failure to consider the fact that the...
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