Upper Tribunal (Immigration and asylum chamber), 2024-01-10, UI-2023-000706
| Appeal Number | UI-2023-000706 |
| Hearing Date | 06 November 2023 |
| Date | 10 January 2024 |
| Published date | 25 January 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2023-000706
First-tier Tribunal No: DC/50094/2022
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-000706 |
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First-tier Tribunal No: DC/50094/2022 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 10th of January 2024
Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
Vladimir Bisha
(NO ANONYMITY DIRECTION MADE)
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Mr D. Jones, Counsel instructed by Oliver and Hasani Solicitors
For the Respondent: Mr D. Clarke, Senior Home Office Presenting Officer
Heard at Field House on 6 November 2023
DECISION AND REASONS
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By a decision dated 5 May 2022, the Secretary of State gave notice to the appellant of a decision to deprive him of his British citizenship under section 40(3) of the British Nationality Act 1981 (“the 1981 Act”). This is the appellant’s appeal against that decision, under section 40A of the 1981 Act.
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The appeal is being heard in this tribunal because, by a decision dated 25 July 2023, I allowed an appeal brought by the Secretary of State against a decision of First-tier Tribunal Judge Brannan dated 18 January 2023 which allowed the appellant’s appeal against the Secretary of State’s decision. I directed that the appeal be reheard in the Upper Tribunal, acting under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
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My decision finding that the decision of Judge Brannan involved the making of an error of law may be found in the Annex to this decision.
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The resumed hearing took place before me on a face to face basis at Field House on 6 November 2023. The appellant gave evidence and was cross-examined. I reserved my decision, which I now give.
Factual background
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I summarised the essential factual background at paras 3 to 5 of my decision of 25 July 2023:
“3. The appellant was born on 12 April 1981 in Albania. Between 8 and 12 September 1998, he arrived in the United Kingdom. He was 17 and a half years old at the time. Shortly afterwards, he claimed asylum on the basis that he was from Kosovo, and that he was at a real risk of being persecuted on account of his ethnicity. He provided a detailed account of the reasons he claimed to be at risk.
4. On 14 May 1999, the appellant was granted indefinite leave to remain (“ILR”) as a refugee. On 26 April 2004, he applied for British citizenship in his false Kosovan identity. The application was granted on 20 February 2005.
5. The appellant left the United Kingdom in 2007 and returned to Albania, where he has remained ever since. On 9 March 2020, the appellant disclosed his true identity to the Secretary of State, along with representations as to why, in his opinion, he should not be deprived of his British citizenship. An exchange of correspondence followed, leading to the Secretary of State taking the decision to deprive the appellant of his British citizenship on 5 June 2022; it was that decision that was under appeal before the judge below.”
Principal controversial issues
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In his helpful skeleton argument dated 5 November 2023, Mr Jones confirmed that the appellant accepts that he committed deception against the Secretary of State, and that the deprivation was material to his acquisition of British citizenship (para. 3). The appellant also accepts that for the purposes of the present appeal the deprivation of his British citizenship would not disproportionately interfere with his rights to private and family life under Article 8 of the European Convention on Human Rights (“the ECHR”).
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The principal issue for my consideration is whether the Secretary of State’s decision of 5 May 2022 (“the deprivation decision”) was a lawful and rational use of the discretionary power contained in section 40(3) of the 1981 Act. The parties have identified the following factors which go to my assessment of that issue:
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First issue: whether the deprivation decision properly took account of the fact the appellant was a child at the time of his “operative deception” against the Secretary of State, namely his application for indefinite leave to remain, which was made when he was still a child;
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Second issue: the passage of time since the appellant last relied on his deception to the Secretary of State, namely in 2004, and whether the current approach of the Good Character Guidance to disregard deception that took place over ten years ago, should apply by analogy to deprivation decisions;
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Third issue: the impact of the appellant having disclosed his true identity to the Secretary of State in 2006 when his parents applied for entry clearance to the United Kingdom, and the Secretary of State’s subsequent inaction. The appellant relies on an unreported decision of this tribunal, Himallari v Secretary of State for the Home Department UI-2022-006559, to support the proposition that the Secretary of State had constructive knowledge of the appellant’s true identity in 2006, yet had not acted; and
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Fourth issue: the fact that it was the appellant who ultimately followed up the issue with the Secretary of State, on 9 March 2020, and whether the Secretary of State adequately addressed that issue.
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The law
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A person may acquire naturalisation as a British citizen in accordance with section 6(1) of the 1981 Act:
"6.- Acquisition by naturalisation.
(1) If, on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen."
Schedule 1 to the 1981 Act sets out the requirements for naturalisation as a British citizen. This includes at para. 1(1)(b) "that he is of good character".
Good character is not defined by the 1981 Act. The Secretary of State has adopted guidance from time to time on the meaning of the term. It may be found in the Nationality Instructions.
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Section 40 of the 1981 Act empowers the Secretary of State to deprive a person of their British citizenship in certain circumstances:
“(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.
(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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The criteria in section 40(2) and (3) operate as a condition precedent to the Secretary of State's exercise of her power to deprive a person of their citizenship. The power to deprive is discretionary ("the Secretary of State may"), with the consequence that the Secretary of State must decide whether to exercise the power to deprive, even if she is satisfied that a statutory condition precedent to doing so is met. The Secretary of State has published operational guidance to caseworkers addressing the exercise of this discretion, contained in Chapter 55 of the Nationality Instructions.
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There is a right of appeal to the First-tier Tribunal against the Secretary of State's decision of her intention to exercise the power under section 40, rather than the deprivation order itself: see section 40A(1). It follows that, during the currency of any pending proceedings challenging a decision to make a deprivation order, the individual concerned will remain a British citizen.
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Two significant cases on the deprivation of citizenship in the Immigration and Asylum Chamber are Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238 (IAC) and Chimi (deprivation appeals; scope and evidence) Cameroon [2023] UKUT 115 (IAC). In light of the issues as focussed by the parties, paras (5) and (6) of the headnote in Ciceri are relevant to my analysis:
“(5) Any delay by the Secretary of State in making a decision under section 40(2) or (3) may be relevant to the question of whether that decision constitutes a disproportionate interference with Article 8, applying the judgment of Lord Bingham in EB (Kosovo) v Secretary of State for the Home Department [2009] AC 1159. Any period during which the Secretary of State was adopting the (mistaken) stance that the grant of citizenship to the appellant was a nullity will, however, not normally be relevant in assessing the effects of delay by reference to the second and third of Lord Bingham’s points in paragraphs 13 to 16 of EB (Kosovo).
(6) If deprivation would not amount to a breach of section 6 of the 1998 Act, the Tribunal may allow the appeal only if it concludes that the Secretary of State has acted in a way in which no reasonable Secretary of State could have acted; has taken into account some irrelevant matter; has disregarded something which should have been given weight; has been guilty of some procedural impropriety; or has not complied with section 40(4) (which prevents the Secretary of State...
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