Upper Tribunal (Immigration and asylum chamber), 2023-10-12, UI-2022-006520
| Appeal Number | UI-2022-006520 |
| Hearing Date | 18 September 2023 |
| Date | 12 October 2023 |
| Published date | 27 October 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-006520 (DC/50037/2020)
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-006520
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First-tier Tribunal No: DC/50037/2020 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
12th October 2023
Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
FATUSH LALA
(NO ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Reuben Solomon, instructed by Jein Solicitors
For the Respondent: Susana Cunha, Senior Presenting Officer
Heard at Field House on 18 September 2023
DECISION AND REASONS
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I issued my first decision in this appeal on 4 July 2023. In that decision, I found that the First-tier Tribunal (“FtT”) had erred in law in allowing the appellant’s appeal on Article 8 ECHR grounds. I set aside the FtT’s decision to that extent and I ordered that the decision on the appeal would be remade in the Upper Tribunal after a further hearing.
Background
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The full background was set out by the FtT at [1]-[12] of its decision. There is another summary at [3]-[6] of my first decision. No purpose would be served by repeating the full history here. What matters for present purposes is that the appellant was found by the FtT to have obtained naturalisation by means of false representation because his application was made in the same false identity he had used when seeking and being granted leave to remain. That finding is preserved was not said to be tainted by legal error and is preserved.
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The decision on the appeal is therefore to be remade on Article 8 ECHR grounds, which involves an examination of the reasonably foreseeable consequences of removal: Muslija (deprivation: reasonably foreseeable consequences) [2022] UKUT 337 (IAC). In considering that question, the Upper Tribunal may consider evidence which was not before the Secretary of State: Chimi (deprivation appeals; scope and evidence) Cameroon [2023] UKUT 115 (IAC).
Preliminary Matter
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Mr Solomon invited me to remit the appeal to the First-tier Tribunal. That application had been made in writing by those instructing him in advance of the hearing. The basis of the application was that no submissions had been made on the question of relief at the first hearing in the Upper Tribunal and the resumed hearing was ‘to be treated as a de novo hearing.’
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Ms Cunha opposed remittal and submitted that the matter should proceed in the Upper Tribunal.
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I agreed with Ms Cunha. It is incorrect to suggest that the resumed hearing is de novo; the only remaining issue is Article 8 ECHR. The presumption in the Senior President’s Practice Statement is in favour of retention in the Upper Tribunal and there was no suggestion of unfairness to the appellant in the proceedings before the FtT. Having considered what was said in Begum (remaking or remittal) [2023] UKUT 46 (IAC), I refused the application to remit.
Evidence
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Mr Solomon confirmed that the appellant now relies on three bundles of evidence: Bundle A and Bundle B were before the FtT and contain 175 and 32 pages respectively. Bundle C, of 18 pages, was produced for the Upper Tribunal hearing.
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I heard oral evidence from the appellant and his wife, Xhumrije Memishaj. I do not propose to rehearse their evidence in this decision. I will refer to it insofar as it is necessary to do so to explain my findings of fact.
Submissions
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Ms Cunha relied on the respondent’s decision and she took me particularly to [69]-[71] of that decision, in which the heavy public interest in deprivation had been explained.
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It was necessary to consider the best interests of the child. Three children were potentially affected by the decision. The appellant had two children from a previous relationship and one toddler with his wife. The children from the previous relationship were British citizens born in 2015 and 2017.
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Ms Cunha asked me to consider the relevant sections of Hysaj (Deprivation of Citizenship: Delay) [2020] UKUT 128 (IAC), E3 & Ors v SSHD [2023] EWCA Civ 26; [2023] KB 149, Usmanov v Russia (App No 43936/18); [2020] ECHR 923, and Chimi. There was no suggestion that the decision was ‘arbitrary’ such that it fell foul of what was said in Usmanov v Russia. Ms Cunha submitted that the ‘limbo period’ was likely to be in the region of eight weeks but that even a longer period would be proportionate on the facts of this case. The appellant would still have access to emergency treatment on the NHS during that time. His wife would be able to access benefits and had settled status. As noted in Hysaj, society provides a ‘safety net’ for the most vulnerable. Whether by reference to support from family and friends or by reference to that safety net provided by the state, the family would be able to manage during the limbo period.
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Ms Cunha submitted that there was no good reason that the appellant’s wife could not work. She could seek work through friends. It was fallacious to suggest that she needed to speak English even to work as a cleaner. The child might still be breastfeeding at the age of two but plenty of women returned to work whilst breastfeeding; milk could be expressed and the child would shortly be weaned in any event. This was a personal choice and it was unlikely that she would choose to make her family destitute.
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There is family in the United Kingdom. The appellant said that he had been taking out loans but there was no evidence of that and it was a matter which could readily have been corroborated. It was not clear that the appellant had lost his job in construction because of a lack of documentation. The email from Lang O’Rourke seemed to suggest that there had also been a grievance procedure. Whilst Ms Cunha accepted that the appellant’s passport had been taken from him, she did not accept that it was this which prevented him from working. He could have secured other work and it appeared that he had worked after parting company with Lang O’Rourke. There was no evidence to show that the appellant’s driving licence had been taken from him.
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The difficulties which would be caused by deprivation were wholly justified by the appellant’s deception and the appeal should be dismissed on Article 8 ECHR grounds.
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For the appellant, Mr Solomon relied on the skeleton argument which previous counsel had settled for the hearing in the FtT. Article 8 ECHR was considered at [23] onwards in that skeleton. There would be a limbo period of around twelve weeks, comprising four weeks to deprive the appellant of his British citizenship after a negative decision on the appeal and eight weeks to decide whether to grant some form of leave.
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Mr Solomon accepted that there was a heavy public interest in deprivation but submitted that it was not determinative. Each case was to be considered on its own facts. Ms Cunha had relied on E3 and Usmanov but the public interest in those cases was of a different type and order, since both were national security cases.
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The impact on the appellant and his family would be serious and particularly harsh. It was set out at [24] of the skeleton argument. Relevant matters included the appellant’s length of residence and integration to the UK, the fact that he had been told to lie by an agent, the absence of convictions, his voluntary work in the community, his consistent work record, and his desire to resume contact with his children from a previous relationship. His current wife is Bulgarian and has pre settled status. Their daughter is nearly two. The appellant evidently viewed the UK as his home.
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The reasonably foreseeable consequences of removal would be losing the ability to work and to access non-emergency NHS treatment. The reason that the appellant had lost his previous job was immaterial; what mattered was that he would be unable to work during the limbo period. The Passport Office had refused to accept that the appellant’s daughter was a British citizen in May 2023. The appellant’s passport had been seized and the DVLA had sought to recover his driving licence before the Home Office had even issued the ‘minded to deprive’ letter in March 2020. These were unlawful actions and were relevant to the proportionality of deprivation.
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It was unrealistic to expect the appellant’s wife to get a job. Things had moved quickly after she arrived in the UK. The appellant’s passport had been taken and she had fallen pregnant. The practical reality of the situation was that she would not be able to find work; she had only previously worked in a sewing shop. The consistent evidence was that the child refused to take a bottle and there was no reasoning with a child of that age. The appellant’s wife would not be entitled to any benefits, given her status: Fratila v Secretary of State for Work and Pensions [2021] UKSC 53; [2022] PTSR 448. Mr Solomon accepted that she appeared to be eligible for Local Housing Allowance at £300 per week, however.
Mr Solomon submitted that the income support rate was the bare...
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