Upper Tribunal (Immigration and asylum chamber), 2023-12-21, UI-2022-003408
| Appeal Number | UI-2022-003408 |
| Hearing Date | 09 October 2023 |
| Date | 21 December 2023 |
| Published date | 05 January 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-003408
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-003408 |
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First-tier Tribunal No: DC/00045/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 21 December 2023
Before
UPPER TRIBUNAL JUDGE RIMINGTON
Between
QIA
(ANONYMITY ORDER MADE)
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Attendance by the appellant in person
For the Respondent: Mr D Clarke, Home Office Presenting Officer
Heard at Field House on 9 October 2023
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, is granted anonymity.
No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
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The appellant, born on 23rd July 1977, is a citizen of Iraq. In October 2008, he was issued with a certificate of naturalisation as a British citizen and on 13th April 2021 notice was given under Section 40(5) of the British Nationality Act 1981 (“BNA 1981”), that the Secretary of State had decided to make an order under Section 43 of the BNA to deprive the appellant of his British citizenship.
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The appellant appealed that decision and his decision was allowed at first instance by First-tier Tribunal Judge Morgan. At the outset of Judge Morgan’s decision, he stated it was not simply his role to review the Secretary of State’s decision and the judge proceeded to exercise his own independent judgment on the basis of the evidence available to him. On that basis, the Secretary of State’s appeal against the First-tier Tribunal’s decision was allowed and the decision of the First-tier Tribunal Judge was set aside on 23rd May 2023 owing to a material error of law.
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The matter was considerably delayed because the appellant’s passport had been removed from him and he found himself to be stranded in the Netherlands unable to attend the error of law hearing and could not afford representation. Despite the Tribunal suggesting that he seek legal representation at no point was the appellant able to secure it. Following R (Gjini) [2021] EWHC 1677 (Admin) the appellant was ultimately provided with a passport in order that the appellant could attend in person and the matter could proceed. Although the Dutch authorities were contacted to request permission to take evidence from abroad, there was no response.
The deprivation decision
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The Secretary of State’s decision letter identified the underlying legislative framework of Sections 40(2) (conducive to the public good to deprive) and 40(3) (acquisition of citizenship by means of fraud or false representation or the concealment of any material fact) of the British Nationality Act 1981 (BNA 1981). The decision also cited the Nationality Instructions Chapter 55 which confirmed that an innocent mistake would not give rise to power to deprive and that concealment of any material fact meant operative concealment such that it would have had a direct bearing on the decision to register or issue a certificate of naturalisation (55.4.2).
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It was recorded that the appellant entered the United Kingdom in 2002 at the age of 25 years and claimed asylum on the basis of anti Iraq government activities with his identity as HHH born on 23rd July 1977. The deprivation decision recorded at [8] that the appellant’s ‘last country of origin’ was said by him to be Khannaqin/Khanakeen, Iraq (Annex A- SEF). On 7th October 2002, it was noted, his asylum claim was refused because his political activity was too low level, but in a further letter he was informed on the same date that he had been granted four years of Exceptional Leave to Remain (‘ELR’). His application for Indefinite Leave to Remain (‘ILR') on 12th September 2006 gave the same name and dated of birth details and he signed a declaration of truth. It was also noted at [10] that the appellant, on 20th October 2002, applied for a travel document in which he declared his place of birth as Khannaqin and signed a declaration. On 8th October 2008 his application to naturalise was made again using the same details and giving his place of birth as Khannaqin. Paragraph 12 of the deprivation decision identified that as an adult the appellant declared that he had not been known by any other name, he confirmed his parents’ details (born in Khannaqin) and ticked the box to state he was a person of good character and again signed a declaration that he was aware that it was an offence under the BNA 1981 to give false information and that citizenship may be withdrawn if it were found to have been obtained by fraud false representation or concealment of any material fact.
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The Status Review Unit received a referral from Her Majesty’s Passport Office on 9th May 2017, observing that the appellant had submitted first time passport applications in respect of his two children and supporting documentation which identified that his place of birth was in fact Kifri.
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The deprivation letter stated at [14] that the false place of birth was material to his grant of ILR and subsequent British citizenship grant as Kifri was a government controlled area of Iraq. It was recorded that on 10th February 2020 the appellant confirmed that he was in fact QIA born on 10th July 1977 in Kifri, Diyala, Iraq and the reason he gave false details was that he was fleeing Iraq and was convinced that if he and his family were deported to Iraq their lives would be in danger. The reason he gave false information was his lack of sophistication in all legal matters [15]. He failed to rectify his false details because of his lack of understanding of the law in the UK. He supplied a family certificate dated 2015 showing Kifri as his place of birth, his marriage certificate giving his place of birth as Kifri and a deed poll dated 15th March 2015 changing his false name to his genuine identity [16]. It was also, however, noted that the appellant attached a statement of the same date still stating that he was born in Khannaqin and lived there until 2002 but his birth was registered in Kifri [15]. Submissions made by his legal representatives stated that his birthplace was only a matter of miles from his actual birthplace and his actual birthdate was only thirteen days different from that given in the application.
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The appellant signed the declaration section of his ILR application stating that he was aware that it was an offence to make a false statement or representations known to be false [18]. He also signed the declaration section of his application to naturalise declaring that he was aware that to give false information knowingly or recklessly was a criminal offence. The decision added at [18] “It is noted that you only admitted the deception after you were issued with a Home Office investigation letter when the allegation was put to you. Presumably you would not have revealed your true identity and place of birth if the deception had not been detected”. The appellant had represented that Kifri and Khannaqin were both districts under Diyala governorate and ‘you have lived all your life in Khannaqin.’ In particular it was noted that Kifri was not under government control whilst Khannaqin was under government control (“GCI”). The decision apparently relied on the following statement at [18] ‘Iraq map clearly showing Kifri and Khannaqin/Khnakeen as different areas (Annex R Page 11). It is noted that Kifri also borders Sulaymaniyah, which was not a government controlled area of Iraq. Your Iraq passport issued in 2015 states Al Sulaymaniyah (Annex R, Page 9) (sic). (I add for clarity from this passage it is clear that the map identified is from a document dated 2016).
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The decision stated at [20] that under the Iraq policy guidance (no date given) claimants would need to have been from the GCI and refused ELR between April 1991 and 20th February 2003 and that Iraqis from the former KAZ could also potentially fall within the scope of the Rashid judgment if a policy on internal flights was not adhered to, however ‘these cases would be where: A first decision had been made or held on appeal (at the date of appeal hearing)’ (sic) between 23 October 2002 and 20 February 2003. You were granted 4 years ELR on 07 October 2002 therefore your claim did not fall within the scope of Rashid Judgement’(sic).
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The decision then proceeded at [21]
‘Iraq policy guidance map clearly shows that Kifri was not a government controlled area of Iraq, Khannaqin was (Annex S Page 9). It is apparent that you presented a false place of birth when you entered the UK and claimed asylum to benefit your claim.’ Again, for clarity I note this in fact referred to the Iraq Policy Bulletin v3.0 issued on 1st August 2006.
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The deprivation letter added at [22] that a ‘report issued in 2015 (Norway) confirms that Iraq identify certificates/cards stated a person’s place of birth, not place of issue.’
Further at [23]...
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