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British Nationality Deprivation Appeals – Not Dead Yet

In Pirzada (Deprivation of citizenship: general principles) [2017] UKUT 196 (IAC) the Upper Tribunal appears to limit the issues in an appeal against a Home Office decision to deprive a person of their British citizenship status. It is arguable that the Upper Tribunal erred, not least as this aspect of the decision is at odds with other relevant decisions.
Section 40 of the British Nationality Act 1981 (as amended) (“the 1981 Act”) provides the Secretary of State with a discretionary power to make an order (“a Deprivation Order”) depriving a person of a citizenship status. There are many different types of British citizenship; “a citizenship status” is used to ensure that every British citizen is potentially subject to a Deprivation Order.
To make a Deprivation Order the Secretary of State must be satisfied either: 
1. That deprivation is conducive to the public good and that it will not make the individual stateless (subsection 2); or
2. That the citizenship status resulted from registration or naturalisation and was obtained by means of fraud, false representation or concealment of a material fact (sub-section 3). 
As the Secretary of State decides what is considered to be conducive to the public good in these matters, the only statutory limit to the subsection 2 power is statelessness. All potentially dual nationals are therefore at risk of deprivation under this provision. Similarly, the subsection 3 power does not itself require the individual concerned to be personally responsible for the relevant fraud, false representation or omission of material facts. Thus a person registered as a British citizen as a child remains potentially at risk of deprivation throughout their life.
Section 40A of the 1981 Act provides for a right of appeal to the First-tier Tribunal against a decision to make a Deportation Order, unless the Secretary of State certifies that the decision was taken wholly or partly in reliance on information which should be not made public on specific grounds.
In Pirzada, the Upper Tribunal confirms that the powers in subsections 2 and 3 are separate and that the Secretary of State must be clear as to which power is being used. As Mr Pirzada’s citizenship status had been obtained by naturalisation both powers were potentially available. The Upper Tribunal found that the Secretary of State had sought to exercise the power in subsection 3 (status acquired by fraud etc.) but had relied on circumstances arising after the citizenship status had been acquired. Whether or not those circumstances may have justified a Deprivation Order on conducive to the public good grounds, they clearly could not justify a Deprivation Order made on basis on which the citizenship status had been acquired. The appeal was therefore allowed.
So far, so uncontroversial. However the Upper Tribunal also stated, without any apparent argument or submissions on the matter, that: 
“The restrictions on the rights of appeal imposed by s 84 of the 2002 Act do not apply to appeals against a s 40 decision: therefore, any proper ground of appeal is available to an applicant. The grounds of appeal are, however, limited by the formulation of s 40 and must be directed to whether the Secretary of State's decision was in fact empowered by that section. There is no suggestion that a Tribunal has the power to consider whether it is satisfied of any of the matters set out in sub-ss (2) or (3); nor is there any suggestion that the Tribunal can itself exercise the Secretary of State's discretion.”
If Pirzada is correctly decided, the only relevant question in such an appeal, whatever grounds are raised, will be whether or not the Secretary of State was empowered by section 40 to make a Deprivation Order on the grounds relied on by the Secretary of State.
Under this approach there would be no room for challenging the decision on the substantive merits of the case, for example in terms of proportionality in the particular case. For example, a British citizen who was born in the UK and has lived in the UK for their entire life there would appear to have, if they happen also to be a dual national, no basis on which their appeal could be allowed – irrespective of the strength of the appellant’s case or the apparent arbitrariness of the Secretary of State’s decision.
By contrast, in Deliallisi (British citizen: deprivation appeal: Scope) [2013] UKUT 439 (IAC)  the Upper Tribunal expressly stated (following argument on the relevant issue):
“The correct approach is, we find, precisely the opposite of that taken by the First-tier Tribunal in the present appeal.  If the legislature confers a right of appeal against a decision, then, in the absence of express wording limiting the nature of that appeal, it should be treated as requiring the appellate body to exercise afresh any judgement or discretion employed in reaching the decision against which the appeal is brought.  We acknowledge that, in certain circumstances, the subject matter or legislative context may, nevertheless, compel a restricted reading of the enactment conferring the right of appeal; but courts and tribunals should not be over-ready to find such exceptions, and should do so only where it is plainly demanded, in the interests of coherent decision-making or other cogent considerations of public policy.” (Emphasis added).
The Upper Tribunal approach in Deliallisi was itself based on an earlier decision to the same effect in its earlier decision of Arusha & Demushi (deprivation of citizenship – delay) [2012] UKUT 80 (IAC), and is supported by the recent Court of Appeal decision in Harjinder Singh v Secretary of State for the Home Department [2017] EWCA Civ 362: 
“32. It is … now well established that in human rights cases the tribunal will consider the evidence that is relevant to the decision in question at the date of the hearing. Its task is to consider the evidence afresh. The tribunal accords appropriate weight to the judgment of the decision maker who has access to specialist sources of knowledge and advice while at the same time exercising a merits jurisdiction on all of the evidence properly available to it.
33. When doing so the tribunal is not limited to a secondary reviewing function such as would be appropriate in judicial review unless Parliament constrains the function of the tribunal in that or any similar way. Parliament has done so on more than one occasion, for example by removing a right of appeal or by imposing a judicial review test rather than a merits test upon certain appeals. When not so constrained, the tribunal is part of the decision-making process. Its appellate function is an extension of the decision making function. The tribunal stands in the shoes of the decision maker.”
It is clear that, Parliament has not constrained the function of the Tribunal in section 40A appeals, save in relation to Tribunal procedure (in particular with regard to allegedly false documents). Contrary to its own advice in Deliallisi, the Upper Tribunal in Pirzada appears to have been “over-ready” to find such a constraint. It appears unlikely that the scope of appeals in deprivation matters has been resolved by the Pirzada decision.  

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