More Guidance on British Citizenship Deprivation Appeals
In its judgment in Chimi (deprivation appeals; scope and evidence) Cameroon [2023] UKUT 00115 (IAC), published on 19 May 2023, the Upper Tribunal again provided guidance on deprivation of British citizenship appeals, particularly their scope and the evidence that the Tribunal can consider.
The headnote of the judgment reads:
(1) A Tribunal determining an appeal against a decision taken by the respondent under s40(2) or s40(3) of the British Nationality Act 1981 should consider the following questions:
(a) Did the Secretary of State materially err in law when she decided that the condition precedent in s40(2) or s40(3) of the British Nationality Act 1981 was satisfied? If so, the appeal falls to be allowed. If not,
(b) Did the Secretary of State materially err in law when she decided to exercise her discretion to deprive the appellant of British citizenship? If so, the appeal falls to be allowed. If not,
(c) Weighing the lawfully determined deprivation decision against the reasonably foreseeable consequences for the appellant, is the decision unlawful under s6 of the Human Rights Act 1998? If so, the appeal falls to be allowed on human rights grounds. If not, the appeal falls to be dismissed.
(2) In considering questions (1)(a) and (b), the Tribunal must only consider evidence which was before the Secretary of State or which is otherwise relevant to establishing a pleaded error of law in the decision under challenge. Insofar as Berdica [2022] UKUT 276 (IAC) suggests otherwise, it should not be followed.
(3) In considering question (c), the Tribunal may consider evidence which was not before the Secretary of State but, in doing so, it may not revisit the conclusions it reached in respect of questions (1)(a) and (b).
The Upper Tribunal had previously provided guidance on the scope of deprivation of British citizenship appeals in Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238, following the Supreme Court’s judgment in Begum v Secretary of State for the Home Department [2021] UKSC 7. However, in view of the fact that the Supreme Court judgment effectively changed the position that had been followed thus far in British citizenship deprivation appeals by clarifying the narrow function of the Tribunal, the developments in case law after Begum necessitated further guidance.
In Chimi, the Upper Tribunal held that the guidance set out in Ciceri was consistent with the Supreme Court’s judgment in Begum. This required the Tribunal to consider first if the Secretary of State had materially erred in law in concluding that the condition precedent in either section 40(2) or section 40(3) of the British Nationality Act 1981 had been satisfied. In U3 v SSHD SC/153/2018 & SC/153/2021, SIAC had held that “the grounds on which a deprivation decision can be impugned include all grounds which would be available in a claim for judicial review”, as opposed to simply the four grounds referred to by Lord Reed in paragraph 71 of Begum. In Chimi this was held by the Upper Tribunal to apply to appeals against both section 40(2) and section 40(3) decisions; not limited to national security cases but also cases where there was a finding of fraud.
Further, it was held that, contrary to Ciceri, the Tribunal should consider the question of whether the Secretary of State had materially erred in law when deciding to exercise her discretion to deprive a person of their citizenship second. This is because that analysis should be confined to a public law review of that decision. Conversely, the Article 8 ECHR or, more broadly, the human rights analysis should be third, given that the Tribunal is not limited to applying public law principles and can substitute its own decision for that of the Secretary of State, with the relevant date being the date of its judgment.
In terms of the evidence that the Tribunal should consider in assessing the three relevant questions in paragraph (1) of the headnote in Chimi, the Upper Tribunal clarified the position further: for the first two questions ((a) and (b)), reviewable by applying public law principles, the Tribunal could consider either evidence that was before the decision-maker, or evidence that, whilst not before the decision-maker, is relevant to establishing whether the decision under challenge is erroneous in law. Essentially, as set out in U3 and B4 v SSHD SC/159/2018, the evidence could post-date the deprivation pf British citizenship decision, insofar as it relates to matters pre-dating it. Whilst not finding that Berdica had been wrongly decided, the Upper Tribunal clarified that, insofar as its headnote suggested a different approach regarding the evidence, it should not be followed.
When considering the human rights question (c), as the Tribunal is in a position to make its own findings on the proportionality exercise and the relevant date for findings is the date of its judgment, evidence relating to matters post-dating the deprivation of British citizenship decision and which was not before the Secretary of State can be considered. However, it should only be considered in the context of the human rights assessment and not the review of the lawfulness of the decision on public law grounds.
In Chimi, the requirement that, in the context of the first two questions, the Tribunal can only consider evidence that was not before the decision-maker if it is relevant to a pleaded error of law, appears to refer to errors of law whose nature permits being demonstrated by such evidence. For instance, the two examples set out in paragraphs 62 of Chimi are error of established fact and breach of the Tameside duty. Whether either of these errors occurred can be determined on the basis of evidence that was not before the decision-maker. This seems to indicate, a contrario, that other errors, such as Wednesbury unreasonableness, are not capable of being pleaded with reliance on evidence that was not before the decision-maker; the assessment of whether the decision-maker reached a decision that was not open to them on the evidence requires assessment solely of the evidence before them. Nonetheless, in paragraph 37 of U3, SIAC held that, other than error of established fact and breach of Thameside duty, a failure to take into account relevant considerations (an aspect of Wednesbury review) can also be considered on the basis of evidence that was not before the decision-maker.
The conundrum of reviewing a decision by applying public law principles on the basis of evidence that was not before the decision-maker was raised and set out in the recent SIAC judgment of Begum v Secretary of State for the Home Department SC/163/2019. Whilst affirming the position it had previously adopted in U3 and B4, now also followed by the Upper Tribunal in Chimi, SIAC commented that these issues would be considered by the Court of Appeal in the appeal of U3 (at least in the context of national security deprivation cases).
Related Posts
- Appeals against deprivation of British citizenship
- Deprivation of British citizenship
- Upper Tribunal Guidance on Deprivation of British Citizenship Appeals
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