Upper Tribunal (Immigration and asylum chamber), 2023-12-24, UI-2023-001844
| Appeal Number | UI-2023-001844 |
| Hearing Date | 07 December 2023 |
| Date | 24 December 2023 |
| Published date | 09 January 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2023-001844 [DC/50168/2022; LD/00260/2022]
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-001844 |
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First-tier Tribunal No: DC/50168/2022; LD/00260/2022 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 24 December 2023
Before
UPPER TRIBUNAL JUDGE SMITH
Between
MR SANY CHOWDHURY
(NO ANONYMITY DIRECTION)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Z Raza, Counsel instructed by Charles Simmons Solicitors
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer
Heard at Field House on Thursday 7 December 2023
DECISION AND REASONS
PROCEDURAL BACKGROUND
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By a decision promulgated on 8 September 2023, Upper Tribunal Judge Rintoul found an error of law in the decision of First-tier Tribunal Judge Hendry itself promulgated on 24 April 2023. By her decision, Judge Hendry dismissed the Appellant’s appeal against the Respondent’s decision dated 15 July 2022 depriving the Appellant of his British nationality.
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Judge Rintoul’s decision was made following an agreement between the parties that Judge Hendry’s decision involved the making of an error of law. In particular, Judge Rintoul referred to the error made by Judge Hendry in carrying out a full merits review of the facts and relying on case-law which had since been superseded. In consequence of the parties’ agreement, Judge Rintoul set aside the First-tier Tribunal’s decision and gave directions for a resumed hearing in the Upper Tribunal. So it was that the appeal came before me.
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I had before me evidence in the form of the Appellant’s bundle before the First-tier Tribunal ([AB/xx]) and the Respondent’s bundle before that Tribunal ([RB/xx]). I also had the Respondent’s review. Finally, I received a skeleton argument from Mr Raza and a bundle of legal authorities.
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I heard oral evidence from the Appellant (who I neutrally refer to as Mr Chowdhury despite the dispute as to his identity). Mr Chowdhury gave evidence via a Sylheti interpreter but who was also qualified as a Bengali interpreter. There were no difficulties in understanding between Mr Chowdhury and the interpreter.
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I also heard oral submissions from Mr Clarke and Mr Raza before reserving my decision. I indicated that I would provide my decision in writing which I now turn to do.
LEGAL FRAMEWORK
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This appeal is under the British Nationality Act 1981 (“BNA 1981”). Section 40(3) thereof permits the Respondent to deprive an individual of British citizenship which has resulted from registration or naturalisation if “[he] is satisfied that the registration or naturalisation was obtained by (a) fraud (b) false representation or (c) concealment of a material fact. Section 40A BNA 1981 provides a right of appeal in the circumstances of this case to the First-tier Tribunal (and thereafter to this Tribunal).
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As to the way in which the Tribunal should deal with the appeal, the Respondent places reliance on the Tribunal’s guidance in Chimi (deprivation appeals; scope and evidence) Cameroon [2023] 00115 (IAC) (“Chimi”) as follows:
“(1) A Tribunal determining an appeal against a decision taken by the respondent under s40(2) or s40(3) of the British Nationality Act 1981 should consider the following questions:
(a) Did the Secretary of State materially err in law when she decided that the condition precedent in s40(2) or s40(3) of the British Nationality Act 1981 was satisfied? If so, the appeal falls to be allowed. If not,
(b) Did the Secretary of State materially err in law when she decided to exercise her discretion to deprive the appellant of British citizenship? If so, the appeal falls to be allowed. If not,
(c) Weighing the lawfully determined deprivation decision against the reasonably foreseeable consequences for the appellant, is the decision unlawful under s6 of the Human Rights Act 1998? If so, the appeal falls to be allowed on human rights grounds. If not, the appeal falls to be dismissed.
(2) In considering questions (1)(a) and (b), the Tribunal must only consider evidence which was before the Secretary of State or which is otherwise relevant to establishing a pleaded error of law in the decision under challenge. Insofar as Berdica suggests otherwise, it should not be followed.
(3) In considering question (c), the Tribunal may consider evidence which was not before the Secretary of State but, in doing so, it may not revisit the conclusions it reached in respect of questions (1)(a) and (b).”
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It was agreed between the parties that question 1(c) is not relevant in this appeal. The Appellant does not contend that deprivation would breach his human rights. The relevant questions are whether the condition precedent is met (and what test applies when determining that question) and whether the Respondent was entitled to exercise his discretion against the Appellant when seeking to deprive him of citizenship.
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The guidance in Chimi follows the Supreme Court’s judgment in Begum v Secretary of State for the Home Department [2021] UKSC 7 (“Begum”). Begum was a case involving the making of a deprivation decision pursuant to section 40(2) BNA 1981 which provides that the Secretary of State may make a deprivation decision if he is satisfied that deprivation is conducive to the public good.
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In the course of its judgment in Begum, the Supreme Court made reference to case-law relating to section 40(3) BNA 1981. It referred in particular to the cases of Deliallisi v Secretary of State for the Home Department [2013] UKUT 439 (IAC) (“Deliallisi”), BA (Deprivation of Citizenship; Appeals) [2018] UKUT 85 (IAC) (“BA”) and Pirzada (Deprivation of Citizenship: General Principles) [2017] UKUT 196 (IAC) (“Pirzada”). Deliallisi and BA followed an approach requiring the Tribunal to exercise for itself a judgement whether deprivation was appropriate. In BA, the Tribunal expressly disapproved the approach in Pirzada which confined the Tribunal’s power to considering whether the Secretary of State was entitled to make the deprivation decision (in effect adopting public law principles). The Tribunal in BA stated that Pirzada should no longer be followed.
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Having considered those three cases alongside other case-law, the Supreme Court returned to the issue of appeals before SIAC under section 40(2) BNA 1981 and said this:
“66. The opening words (‘The Secretary of State may …’) indicate that decisions under section 40(2) are made by the Secretary of State in the exercise of his discretion. The discretion is one which Parliament has confided to the Secretary of State. In the absence of any provision to the contrary, it must therefore be exercised by the Secretary of State and by no one else. There is no indication in either the 1981 Act or the 1997 Act, in its present form, that Parliament intended the discretion to be exercised by or at the direction of SIAC. SIAC can, however, review the Secretary of State’s exercise of his discretion and set it aside in cases where an appeal is allowed, as explained below.”
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As the Supreme Court pointed out at [67] of the judgment, the legislation requires the Secretary of State to be satisfied and not (in that case) SIAC to be satisfied. Whilst what is there said refers expressly to the power under section 40(2) BNA 1981, the wording of section 40(3) in this regard is the same. Further, at [68] of the judgement, the Supreme Court, having referred to what it had already said about the case-law in other Tribunals said this:
“68. … appellate courts and tribunals cannot generally decide how a statutory discretion conferred upon the primary decision-maker ought to have been exercised, or exercise the discretion themselves, in the absence of any statutory provision authorising them to do so (such as existed, in relation to appeals under section 2 of the 1997 Act, under section 4(1) of the 1997 Act as originally enacted, and under sections 84-86 of the 2002 Act prior to their amendment in 2014: see paras 34 and 36 above). They are in general restricted to considering whether the decision-maker has acted in a way in which no reasonable decision-maker could have acted, or whether he has taken into account some irrelevant matter or has disregarded something to which he should have given weight, or has erred on a point of law: an issue which encompasses the consideration of factual questions, as appears, in the context of statutory appeals, from Edwards (Inspector of Taxes) v Bairstow [1956] AC 14. They must also determine for themselves the compatibility of the decision with the obligations of the decision-maker under the Human Rights Act, where such a question arises.”
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The inference from what is there said is that, in the absence of a statutory power permitting a Tribunal to decide the issue for itself, the power is confined to a review of the Secretary of State’s discretion. That is reinforced by the same express wording under section 40(3) BNA 1981 as under section 40(2) BNA 1981.
Mr Raza invited me to adopt at least in the...
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