Upper Tribunal Guidance on Deprivation of British Citizenship Appeals
In its judgment published on 20 October 2022 in Berdica (Deprivation of citizenship: consideration) [2022] UKUT 00276 (IAC), the Upper Tribunal considered further the Tribunal’s jurisdiction and approach to deprivation of British citizenship appeals, following the Supreme Court’s judgement in Begum v Secretary of State for the Home Department [2021] UKSC 7 and the Upper Tribunal’s own consolidated guidance in Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238.
Facts of the Berdica Deprivation of British Citizenship Appeal
The appellant in Berdica had appealed to the First-tier Tribunal against the decision of the Secretary of State for the Home Department to deprive him of his British citizenship on the basis it had been acquired by fraud. The First-tier Tribunal dismissed his appeal. He was granted permission to appeal to the Upper Tribunal against the First-tier Tribunal’s decision.
The appellant had entered the UK in 1998 and claimed asylum on the basis that he was a Kosovan national. He gave his date of birth as 11 April 1982, making him an unaccompanied minor at the date of his asylum application. He was found credible and recognised as a refugee, being granted exceptional leave to remain until 2002. He was granted indefinite leave to remain in 2000 and naturalised as a British citizen in 2005.
The appellant was in fact a national of Albania, born on 11 April 1978. This came to the respondent’s attention in 2009, when, in the context of an application for entry clearance by his then fiancée, sponsored by the appellant, the appellant’s Albanian birth certificate was submitted. Following this, the respondent wrote to the appellant, advising she had cause to believe he had obtained his citizenship by fraud.
The appellant provided written reasons explaining that, although he had relied on a false identity, he had not done so dishonestly. Having moved from Albania to Kosovo at the age of one year, he was not aware of his Albanian nationality or true age. He only discovered the truth in 2006, when he made enquiries with the Kosovan authorities, and subsequently the Albanian authorities, in order to acquire his birth certificate to sponsor his fiancée’s application for entry clearance.
In 2013, the respondent informed the appellant that his British citizenship was a nullity. This decision was not challenged by the appellant, to the Upper Tribunal’s knowledge, but it was withdrawn in light of the Supreme Court’s judgment in R (Hysaj) v Secretary of State for the Home Department [2017] UKSC 82. The respondent accepted that the appellant was a British citizen but considered deprivation action under section 40(3) of the British Nationality Act 1983, in view of the appellant’s false representations. A notice of decision to deprive the appellant of his British citizenship was given on 23 December 2019. The respondent did not find the appellant’s claim that he did not realise his Albanian nationality, date of birth and place of birth until 2006 credible. She considered that he was intentionally deceptive and that was material to his acquisition of exceptional leave to remain and, thereafter, British citizenship.
First-tier Tribunal’s Decision
Following a hearing and the filing of written submissions, the First-tier Tribunal Judge considered whether the relevant condition precedent, namely whether the appellant’s citizenship had been acquired by means of fraud, existed. This consideration was by way of a review-based assessment of the evidence before the respondent at the date of decision, applying public law principles. The Judge concluded that the respondent had considered the appellant’s explanation in 2009 and that the reasons given in the notice of deprivation decision were supported by the evidence. She found that the conclusion reached, namely that the appellant had been dishonest in providing his false identity, was one that was reasonably open to the respondent.
In the alternative, the Judge considered whether the maintenance of the respondent’s conclusion was rational in light of the further evidence presented following the decision and until the date of the hearing. The Judge concluded that the further evidence did not render the decision to deprive unreasonable as it did not undermine the respondent’s reasoning. She provided her reasons for reaching that conclusion.
The Judge subsequently conducted a merits-based assessment of the article 8 matter, concluding that the private and family life factors in the appellant’s case did not outweigh the public interest in deprivation, in light of the little weight that ought to be placed on those, following Hysaj (Deprivation of Citizenship: Delay) [2020] UKUT 128 and Laci v Secretary of State for the Home Department [2021] EWCA Civ 769.
Upper Tribunal’s Decision
The grounds of appeal were categorised as substantive challenges against the Judge’s decision-making, applying the principles in Ciceri, on one hand, and a challenge against the Judge’s reliance on Ciceri, on the other. The panel of Upper Tribunal Judges considered the substantive challenges first.
The appellant challenged the Judge’s assessment of the existence of the condition precedent for deprivation as perverse, arguing that there was no evidence that either the appellant’s age or his nationality had any bearing on the respondent’s decision to grant him citizenship and he had not been dishonest. The Upper Tribunal was satisfied that the appellant’s age and nationality had a significant bearing on the recognition of refugee status and grant of leave and that the respondent had given detailed reasons for not accepting the appellant’s explanations as credible. The ground was dismissed.
The appellant further challenged the Judge’s assessment of the evidence as perverse, however, this was acknowledged at the hearing to be an error. The Judge had considered both the evidence that was before the respondent at the date of the decision and the appellant’s oral evidence, in the alternative. The ground was also dismissed as misconceived.
The appellant submitted that the error in the assessment of the evidence, set out in the preceding ground, could have arisen due to the passage of 5 months between the conclusion of the hearing and the drafting of the Judge’s decision. It was found that this ground was speculative and parasitic of the misconceived challenge advanced by the preceding ground. Existing authorities confirmed that a nexus between the delay and the safety of the decision was required to be shown. The Upper Tribunal found that the delay was not excessive and the Judge was fully aware of the evidence presented when preparing her decision, so that the decision was not shown to be unsafe. This ground was also dismissed.
The appellant argued that the Judge had erred as to the weight to be placed on the delay in the respondent’s decision to deprive, which denied the appellant of the opportunity to rely upon a now withdrawn policy. This stated that the Secretary of State would not normally deprive a person of their citizenship if they had been resident in the UK for more than 14 years, unless it is in the public interest to deprive despite the presence of, inter alia, this factor. The Upper Tribunal dismissed the ground as unmeritorious, as the respondent had issued her nullity decision in 2013, in reliance upon legal advice as to the law as it was then understood, per Hysaj. It was held that the appellant enjoyed no legitimate expectation that he would succeed under the policy, which was discretionary.
Finally, the Upper Tribunal considered the appellant’s ground asserting that the Judge had erred in concluding that the decision of Ciceri was binding authority upon the First-Tribunal. The Upper Tribunal confirmed that, as a superior court of record, its decisions are binding on the First-tier Tribunal both in the individual case and as a matter of precedent. A second limb of this challenge, namely that Ciceri was per incuriam as Begum should have been regarded as only being confined to appeals under section 40(2) of the 1981 Act, was also dismissed. The Upper Tribunal confirmed that the Judge considered the respondent’s decision on a strictly public law basis and through the prism of new evidence.
In conclusion, it was found that the Judge’s decision did not involve the making of a material error of law and the appellant’s appeal was dismissed.
The judgement’s headnote states as follows:
- In deprivation of citizenship appeals, consideration is to be given both to the sustainability of the original decision and also whether upon considering subsequent evidence the Secretary of State’s maintenance of her decision up to and including the hearing of the appeal is also sustainable. The latter requires an appellant to establish that the Secretary of State could not now take the same view.
- Decisions of the Upper Tribunal are binding on the First-tier Tribunal, not only in the individual case by virtue of section 12 of the Tribunal, Courts and Enforcement Act 2007, but also as a matter of precedent.
Commentary on the Berdica Deprivation of British Citizenship Appeal
The argument raised on behalf of the appellant in Berdica, that Begum was confined to appeals under section 40(2) and that appeals under section 40(3) should be distinguished, is not, in my view, without any merit. Whereas section 40(2) appeals, insofar as the condition precedent for deprivation exists, are concerned with the extent of a future risk, section 40(3) appeals are concerned with whether something happened in the past: namely, whether a person’s citizenship was acquired by means of false representation, concealment, or fraud. This distinction may have warranted a different approach to that favoured by Lord Hoffman in Secretary of State for the Home Department v Rehman [2001] UKHL 47, as set out in paragraph 58 of Begum: the hybrid approach favoured by Lord Slynn, whereby “when specific acts which have already occurred are relied on, fairness requires that they should be proved to the civil standard of proof”. Nonetheless, in paragraph 59 of Begum, the Supreme Court confirmed that Lord Slynn’s approach, itself only based upon the powers conferred to SIAC by the now-repealed section 4 of the 1997 Act, was no longer relevant in the absence of a similar provision in the current legislation. This seems to undermine the argument regarding a different approach between section 40(2) and section 40(3) appeals, although Begum was not concerned with section 40(3) appeals and therefore, that comment was obiter.
In any event, whether or not Begum has a wider application that includes appeals against section 40(3) decision and, consequently, whether Ciceri was decided correctly or not, there was no question that the First-tier Tribunal Judge was bound by the Upper Tribunal’s judgement. Any challenge against it would have to be decided by a higher court, i.e. the Court of Appeal or Supreme Court.
The Upper Tribunal’s clarification in Berdica will be of assistance to both appellants and legal representatives, as it is now confirmed that evidence post-dating the respondent’s notice of decision to deprive is relevant to deprivation appeals. First-tier Tribunal Judges are required to consider both whether the Secretary of State’s decision had a factual basis or was based on a reasonable view of the evidence, applying public law principles, and whether any new evidence renders the maintenance of the decision irrational. This can be evidence that is filed and served as part of the appellant’s bundle of documents, or oral evidence given at the hearing.
It is somewhat unclear how this is reconciled with the fact that the Tribunal’s jurisdiction in deprivation appeals is review-based, given that, in many cases, the First-tier Tribunal would be assessing the new evidence itself. Any input from the Presenting Officer appearing on behalf of the respondent would be lacking the administrative function of decision-making and would be confined to defending the respondent’s conclusion and reasoning set out in the notice of decision. Nonetheless, this may well be appropriate in view of the fact that the Tribunal’s jurisdiction in deprivation appeals is appellate, as confirmed in paragraph 69 of Begum, despite the fact that the applicable principles are those of public law.
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