Upper Tribunal (Immigration and asylum chamber), 2023-10-11, UI-2023-001877
| Appeal Number | UI-2023-001877 |
| Hearing Date | 05 July 2023 |
| Date | 11 October 2023 |
| Published date | 26 October 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
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Case No: UI-2023-001877 |
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First-tier Tribunal No: DC/50157/2022 |
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-001877 |
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First-tier Tribunal No: DC/50157/2022 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 11th of October 2023
Before
UPPER TRIBUNAL JUDGE CANAVAN
Between
LEONARD VELIA
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
(NO ANONYMITY ORDER MADE)
Representation:
For the Appellant: Mr T. Wilding, instructed by A J Jones Solicitors
For the Respondent: Ms A. Ahmed, Senior Home Office Presenting Officer
Heard at Field House on 05 July 2023
DECISION AND REASONS
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The appellant appealed the respondent’s decision dated 12 July 2022 to deprive him of British citizenship with reference to section 40(3) British Nationality Act 1981 (‘BNA 1981’) on the ground that the appellant had obtained British citizenship by means of fraud, false representation, or concealment of a material fact. The appellant appealed under section 40A(1) BNA 1981.
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First-tier Tribunal Judge L.K. Gibbs (‘the judge’) dismissed the appeal in a decision sent on 10 May 2023. The judge noted that the appellant accepted that he made a protection claim on 18 April 2000 in the name of Leonard Veliaj, born on 07 August 1986, and claimed to be from Kosovo. In fact, he is Leonard Velia, born on 15 August 1985, and he is from Albania.
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The judge recorded that a possible deception first came to the respondent’s notice on 21 December 2015. No action was pursued until 16 March 2022 when a letter was sent to the appellant. In correspondence dated 08 June 2022 the appellant’s legal representatives admitted that the original details were not correct and confirmed the appellant’s real identity [3].
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The judge went on to record the legal arguments put forward by the appellant’s legal representative. It was argued that the Supreme Court decision in R (on the application of Begum) v Special Immigration Appeals Commission and Others [2021] UKSC 7, [2021] 2 WLR 556 did not apply to appeals against decisions made under section 40(3) BNA 1981 and that the Upper Tribunal decision in Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238 (IAC) was wrongly decided [7]. The judge was not persuaded by the argument. She concluded that the wording in section 40(2) and section 40(3) was sufficiently similar for the same principles to apply [9].
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The judge made her findings with reference to the structured approach suggested in Ciceri. She began by considering whether there was any error in the respondent’s approach to the condition precedent with reference to administrative law principles. The judge rejected the appellant’s argument that the false identity put forward by the appellant did not have a direct bearing on the grant of citizenship. It was argued that the appellant was granted Exceptional Leave to Remain (‘ELR’) because he was a minor (even with reference to his genuine date of birth) [12]. The judge found that the appellant had failed to show that the grant of ELR was based solely on his age [14]. She went on to note that the appellant continued the deception when he applied for Indefinite Leave to Remain (‘ILR’) and for naturalisation [15]. For these reasons the judge found that the respondent’s decision relating to the condition precedent was ‘not susceptible to challenge’ [16].
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The judge turned to consider whether the reasonably foreseeable consequences of deprivation would amount to a breach of Article 8 of the European Convention. She rejected the argument that delay had any bearing on the proportionality of the decision. Although the respondent had concerns for some time, the appellant was not aware of those concerns until he was contacted by the respondent in March 2022. The decision was made shortly thereafter. Any delay did not have an impact on the appellant [18].
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The judge considered the argument put forward by the appellant’s representative about the length of time that a person might find themselves in ‘limbo’ waiting for a review of their position after they had been deprived of citizenship. She quoted the freedom of information request dated 31 August 2021, which the appellant relied on [19]. She also considered the assertion that the appellant and his family would not be entitled to benefits during any limbo period and that his wife could not work because she had recently given birth to their third child [20]. Having considered the recent guidance in Muslija (deprivation: reasonably foreseeable consequences) Albania [2022] UKUT 337 (IAC), the judge accepted that deprivation would engage the right to private life under Article 8(1) [21]. In conducting the balancing exercise under Article 8(2) she considered the inherent weight that must be given to the public interest in maintaining the integrity of British nationality law with reference to the decisions in Begum and Laci v SSHD [2021] EWCA Civ 769 [22]. She accepted that the family might face difficulty if they had to rearrange their finances and working arrangements, but she did not consider that this factor was sufficiently compelling to outweigh the public interest in deprivation [23].
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The appellant applied for permission to appeal to the Upper Tribunal on the following grounds:
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The first ground submits that the decision in Ciceri was ‘not correctly decided’. Although it acknowledged that the subsequent decision in Chimi (deprivation appeals; scope and evidence) Cameroon [2023] UKUT 115 resolved some further issues, the Upper Tribunal did not address the fact that there is similar wording in section 40(2), 40(3) and 40(4). The appellant relied on a brief comment made by the Court of Appeal in SSHD v P3 [2021] EWCA Civ 1642 [114], which did not form part of the main reasoning of the decision. In a previous decision in SSHD v E3 [2019] EWCA Civ 2020 (‘E3 (2019)’), the Court of Appeal suggested that it was for a court or tribunal to consider whether a person was stateless for the purpose of section 40(4) BNA 1981. No consideration was given to these decisions in Ciceri.
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The First-tier Tribunal failed to give adequate reasons for the finding that the false information provided by the appellant was material to the grant of citizenship.
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The First-tier Tribunal failed to give adequate reasons for the findings and/or failed to resolve a material matter in relation to the Article 8 findings.
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The First-tier Tribunal failed to make adequate findings as to whether the decision involved an error of law with reference to public law principles.
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I have considered the First-tier Tribunal decision, the evidence that was before the First-tier Tribunal, the grounds of appeal, and the submissions made at the hearing, before coming to a decision in this appeal. It is not necessary to summarise the oral submissions because they are a matter of record, but I will refer to any relevant arguments in my findings.
Decision and reasons
Ground 1 – Ciceri ‘wrongly decided’
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Appeals against decisions to deprive a person of British citizenship made under section 40 BNA 1981 can be brought in the Immigration and Asylum Chamber (IAC) under section 40A(1) or can be diverted by way of a certificate made under section 40A(2) to be heard under section 2B of the Special Immigration Appeals Commission Act 1997 (‘SIAC 1997’) in SIAC. Whether the appeal is brought in the IAC or in SIAC the underlying powers to deprive a person of citizenship are still contained in section 40 BNA 1981. Unlike appeals against other types of immigration decisions, neither the BNA 1981 nor section 2B SIAC 1997 specify the grounds upon which an appeal against a deprivation of citizenship decision can be brought: see also Begum at [40].
The scope of appeals against deprivation decisions made under section 40(2) (conducive to the public good) and section 40(3) (fraud) has been the subject of much recent judicial consideration. Following the decisions in Begum, Ciceri, and Chimi, a court or tribunal should consider whether the Secretary of State’s decision relating to the condition precedent required under section 40(3)(a)-(c) to deprive a person of citizenship is lawful with reference to the full range of administrative law principles before going...
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