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Appeals against deprivation of British citizenship

In an earlier blog post, we covered the scope of the Secretary of State’s statutory power to deprive an individual of their British citizenship.

In this post we will explore the scope of an appeal to the First-tier Tribunal against a decision to make a deprivation order (section 40A(1) of the British Nationality Act 1981).

In Arusha and Demushi (deprivation of citizenship – delay) [2012] UKUT 80, the Upper Tribunal endorsed the uncontested rulings of the First-tier Tribunal on the nature and scope of an appeal against deprivation of citizenship. It held that:

  1. The Tribunal has a wide-ranging power to consider, by way of appeal not of review, what the appellant’s case should have been;
  2. The Tribunal will consider any relevant evidence, whether or not available to the respondent at the time of his decision;
  3. The respondent has the burden of proof;
  4. The appellant can raise human rights grounds, but they must be framed to deal with the breach alleged to be caused by the deprivation decision, rather than the potential removal.

The scope of deprivation appeals was clarified further in Deliallisi (British citizen: deprivation appeal: Scope) [2013] UKUT 00439. In this case, the Upper Tribunal held that the Tribunal is required to consider whether the Secretary of State’s discretionary decision to deprive should be exercised differently. The Tribunal is also required to consider whether removal is a reasonably foreseeable consequence of the deprivation decision, which will depend on the facts of each case. It was also stated that indefinite leave to remain in the UK is not revived upon deprivation, even if the person deprived had such leave immediately prior to becoming a British citizen.

Expanding on the the above, in AB (British citizenship: deprivation; Deliallisi considered) Nigeria [2016] UKUT 00451, the Upper Tribunal held that in determining the foreseeable consequences of deprivation, whilst it cannot prejudge the outcome of any future legal challenge that may be brought against a removal decision, the Tribunal must take a view as to whether there is likely to be force in any such challenge from its present vantage point.

Consolidated Guidance

The 2018 judgment in BA (deprivation of citizenship: appeals) [2018] UKUT 00085 offered further guidance and consolidated existing case law:

  1. In an appeal against deprivation of citizenship, The Tribunal must first establish whether the relevant condition precedent in section 40(2) or (3) exists for the exercise of the Secretary of State’s discretion to deprive a person of British citizenship:
    1. In a s.40(2) case, the fact the Secretary of State is satisfied deprivation is conductive to the public good is to be given very significant weight and will almost inevitably be determinative of the issue;
    2. In a s.40(3) case the Tribunal must establish whether British citizenship was acquired by means of fraud, false representation, and/or concealment of a material fact.
  2. In both s.40(2) and (3) cases, the Tribunal can allow the appeal only if satisfied that the reasonably foreseeable consequence of deprivation would be unlawful under the Human Rights Act 1998 and/or there is some exceptional feature in the case which means discretion should be exercised differently;
  3. The appeal is to be determined by reference to the evidence before the Tribunal, whether or not the same evidence was before the Secretary of State at the time of the decision to deprive.

The Upper Tribunal concluded that the judgment in Pirzada (Deprivation of citizenship: general principles) [2017] UKUT 00196, insofar as it stated that the Tribunal cannot consider whether the Secretary of State’s discretion should be exercised differently, conflicted with Arusha and Delialissi, was incorrect and should not be followed. However, the Secretary of State’s view on the exercise of discretion should normally be accorded significant weight and, thus, only an exceptional feature would necessitate a departure from that view.

Article 8 ECHR in appeals against deprivation of citizenship

Finally, the Court of Appeal in Aziz & Ors v Secretary of State for the Home Department [2018] EWCA Civ 1884 clarified (arguably narrowed) the approach which had been set out in Delialissi and AB (British citizenship: deprivation Delialissi considered) Nigeria, regarding Article 8 in deprivation appeals.

Particularly, Lord Justice Sales held that the Tribunal should assess only whether the deprivation order itself is compatible with Article 8 ECHR (and section 55 of the Borders, Citizenship and Immigration Act 2009). That will depend in turn upon the reasons put forward by the Secretary of State to justify the making of the deprivation order.

Regardless of whether a deprivation order is made:

  1. because the Secretary of State contends that an individual ought not to be allowed to enjoy the benefits of British citizenship by virtue of their conduct, aside from the possibility of his removal from the UK; or
  2. partly because it is a necessary step to making a deportation or removal order at a later stage;

it is likely to be unnecessary and inappropriate for the Tribunal on an appeal against deprivation of citizenship to conduct a full proleptic assessment of whether an appellant will in fact be deported or removed at a later stage.

In relation to cases under 1. the compatibility of the deprivation order with Article 8 ECHR can be assessed without establishing whether the appellant would or could lawfully be removed or deported later on.

In relation to cases under 2. – where the deprivation order is made partly as a necessary step to allow for removal or deportation – it would be open to an appellant to attempt to show there is no real prospect of him being deported or removed as part of the challenge to the deprivation order. Nonetheless, in the absence of a very clear case the Tribunal would dismiss that contention without the need for a full proleptic assessment.

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