Upper Tribunal (Immigration and asylum chamber), 2023-11-13, UI-2022-004762
| Appeal Number | UI-2022-004762 |
| Hearing Date | 19 July 2023 |
| Date | 13 November 2023 |
| Published date | 28 November 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-004762
First-tier Reference: DC-00013-2021
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2022-004762
First-tier Reference: DC-00013-2021
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 13 November 2023
Before
THE HON. MR JUSTICE DOVE, PRESIDENT
MR C M G OCKELTON, VICE PRESIDENT
Between
GJELOSH KOLICAJ
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr David Chirico, instructed by Mark Lilley-Tams OTB Legal
For the Respondent: Ms Cathryn McGahey KC, instructed by the Government Legal Department
Heard at Field House on 19 July 2023
INTRODUCTION
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The appellant was born on the 24th April 1981 in Albania. He came to the UK in 2005, and on the 6th September 2007 he was granted indefinite leave to remain on the basis of his marriage to a British citizen. On the 5th February 2009 the appellant was naturalised as a British citizen and as a result he became a dual national holding both Albanian and British citizenship.
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Following the hearing, and in the course of the panel deliberating in relation to the merits of the appeal, it became clear to us that there was question in relation to a possible outcome of those deliberations which the parties should be given the opportunity to comment upon and which the panel would benefit from receiving further submissions about. A further hearing was convened on 12th October 2023, at which the parties were invited to make submissions on the following proposition:
“If (on the one hand) the Tribunal accepted that there were good reasons for the Secretary of State to take the deprivation decision without warning but (on the other hand) thought that the appeal should be allowed, how would the Secretary of State envisage that the Tribunal (a) phrase and (b) communicate its decision?”
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The parties decided that they would prefer to have some time to take instructions and provide an exchange of written submissions to address this question. The parties submissions in relation to this issue, which were provided by the respondent on the 19th October, and by the appellant on 26th October 2023, are set out below. We are extremely grateful to both counsel in the case, and those who supported them, for the high quality of the submissions which we received both orally and in writing.
THE FACTS
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On 27th February 2018 in the Crown Court at Kingston upon Thames the appellant was convicted on his own guilty plea of an offence of conspiracy to remove the proceeds of criminal conduct from England and Wales contrary to section 327 of the Proceeds of Crime Act 2002. The case arose from an investigation by the National Crime Agency into an organised crime group who were involved in high value money laundering, where cash from undetermined criminal conduct was removed from the UK using flights to European countries. The appellant was part of a conspiracy who engaged in this activity. The appellant’s role was to orchestrate the movement of large quantities of cash in suitcases on flights, including the direction and control of couriers who undertook this activity on behalf of the conspiracy. The details of the movements of cash and the involvement of the appellant are set out in a sentencing note prepared for the purposes of the Crown Court sentencing hearing by the prosecution. In total, in accordance with the estimate provided by the investigators, a little short of £8 million was moved out of the UK as a result of the activities of the conspiracy.
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When sentencing the appellant the Crown Court judge made clear that she was satisfied that the conspiracy was well planned and sophisticated, and that the appellant had taken a leading role in its activities. Having applied the relevant provisions of the sentencing guidelines for the offence concerned, the judge concluded that the appropriate sentence for the appellant, giving a reduction for his guilty plea, was one of imprisonment for six years.
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On the 22nd January 2021 the respondent decided to deprive the appellant of his British citizenship. The respondent served on the appellant a letter informing him that his status as a British citizen was under review. Also on the 22nd January 2021 the respondent served notice that the appellant had been deprived of his British citizenship on the grounds of ”conduciveness to the public good”. He appealed this decision to the First-tier Tribunal Immigration and Asylum Chamber (“FtT”) and his appeal was dismissed by a panel of FtT judges in a determination dated the 26th April 2022, further details of which are set out below.
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The substance of the respondent’s decision, as set out in the letter accompanying the notice, provided as follows:
“The reason for my decision is that on the 27th February 2018 you were convicted of conspiracy to remove criminal property from England and Wales. In sentencing you the judge agreed a reduction of your tariff of 25% to reflect your guilty plea and sentenced you to six years. In sentencing you along with your brother Jak, the judge remarked “I am satisfied that Jak and Gjelosh Kolicaj were organisers, with a leading role in this group criminal activity conducted over the timescale of the indictment, one which persisted even after individuals were arrested and cash was seized…I am satisfied that the Kolicajs had a leading role, because they were not supervised when they travelled and Gjelosh Kolicaj had the keys to the suitcase containing the large amount of cash that he had checked in, and that the evidence is that, on two occasions after cash was seized by the authorities, Gjelosh Kolicaj went directly to Albania. The inference is that he was liaising to those who were the intended recipients of the money in Albania”.
The offences you have been convicted of are of a very serious nature and contained an element of organisation, involving collusion with others. I am satisfied that your offending is rightly justified as participation in serious organised crime within the meaning of the reference to serious organised crime in paragraph 55.4.4 of the Nationality Instructions.
It is assessed that you are an Albanian/British dual national who has been convicted of conspiracy to remove criminal property from England and Wales. These are serious and organised offences, involving collusion with others. In light of this conviction, I am satisfied that deprivation of your citizenship is conducive to the public good.
In accordance with section 40(4) of the British Nationality Act 1981, I am satisfied that such an order will not make you stateless.
I have also taken account of my responsibilities under section 55 of the Borders, Citizenship and Immigration Act 2009. It is acknowledged you have British citizen children. Deprivation of your citizenship (as distinct from deportation) is unlikely, in itself, to have a significant effect on the best interests of any children you have. It will not impact on their status in the United Kingdom, nor is there any evidence that it will impact on their education, housing, financial support or contact with you. It is acknowledged that deprivation may have an emotional impact on your children. However, having taken into account the best interests of your children as a primary consideration in discharge of my section 55 duty, I consider that the public interest in depriving you of citizenship clearly outweighs any interest which they might have in your remaining a British citizen.”
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It appears that consideration of the deprivation of the appellant’s British citizenship had been brought to the attention of the respondent by the National Crime Agency in a letter to her dated the 19th October 2020. That letter set out the circumstances of the appellant's offending and his involvement over a protracted period with organised crime, and the conveying of criminal profits in the form of cash to Albania. The circumstances of the offence and the evidence surrounding it led the representative of the National Crime Agency to the view that the level of determination of the appellant and his brother to persist in unlawful activities rendered it ”likely that they will continue to pose a risk following completion of their sentences.”
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This communication formed part of the documentation in the package of material presented to the respondent in the form of a minute to support the decision that the appellant should be deprived of his British citizenship. The package of information was supported by advice to the respondent in relation to the exercise of her power to deprive the appellant of his citizenship. Within that minute the background of the appellant’s conviction and the circumstances giving rise to it were set out. The sentencing remarks of the judge were quoted. Reference was also made to a submission by Fiona Johnson dated the 13th May 2020 which is set out below, and it was noted that the respondent had agreed to use the deprivation power in cases involving serious criminal convictions, focusing on the highest harm offences. The author of the minute assessed that the appellant met this criterion.
The minute went on to assess that there was...
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