Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DC/00004/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 August 2016
On 21 October 2016
Prepared 28 August 2016

Before

UPPER TRIBUNAL JUDGE SMITH
DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

Ms g I n
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Berry, Counsel, instructed by S L A Solicitors
For the Respondent: Ms Z Ahmad, Senior Presenting Officer

DIRECTION REGARDING ANONYMITY - RULE 14 OF THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008
Given the ages of the children an anonymity direction is made.
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS

1. The Appellant, born on 6 September 1975, appeals against the Respondent's decision, dated 26 January 2016, whereby permanent residence was revoked, on 3 October 2013, on the basis that the claimed marriage was a sham marriage. The application based on that sham marriage had led to the issue of the certificate of naturalisation as a British citizen.

2. The matter in the appeal came before First-tier Tribunal Judge H Clark, who on 18 May 2016 dismissed the appeal under the British Nationality Act 1981 and rejected it on human rights grounds.

3. Permission to appeal was sought and refused by First-tier Tribunal Judge Grant-Hutchison on 13 June 2016. The application was renewed and on 12 July 2016 Upper Tribunal Judge Rintoul granted permission on all grounds but particularly with reference to the fact that Section 40A(3) of the British Nationality Act was not subject to the application of Sections 117A to D of the 2002 Nationality, Immigration and Asylum Act (as amended).

4. Before us it was plain from the judge's decision, paragraph 47, that there was an error of law because, in considering whether the Appellant's deprivation of citizenship was justified, the judge concluded that she must

"take account of the provisions of Section 117A and 117B of the Nationality, Immigration and Asylum Act 2002 as amended by Section 19 of the Immigration Act 2014 when considering the public interest with reference to Article 8 ECHR and the Appellant's private life".

5. It is clear that Section 117 was not a consideration in the assessment of proportionality regarding deprivation and that error fundamentally undermined her assessment. For this reason if no other it is clear that the Original Tribunal's decision cannot stand.

6. There is no doubt that the Appellant was knowingly participating in a fraud and there is nothing of her immigration background to her credit in relation to her actions.

7. The starting point to an assessment is not the general and wholly sustainable objective of preventing entry based or achieved by dishonesty or fraud. Rather the question is to what extent do false representations or fraud become a material consideration in the exercise of discretion whether to deprive the Appellant of citizenship.

8. We were taken to the guidance given to immigration caseworkers in chapter 55 of the Nationality Instructions. These provisions expressly relate to the deprivation and nullity of British citizenship. In this regard we note that the Respondent's decision was not based around deportation nor has any decision been taken to remove the Appellant.

9. The guidance given encourages a balanced and reasonable approach in taking into account the seriousness of fraud or misrepresentation but of note is that the provisions do not found themselves upon bases of protection for the public interest so that the deprivation of British citizenship is justified. Whilst there is no requirement to exercise the decision to deprive pursuant to the aim of general deterrence of fraudulent conduct we think that must still be a relevant consideration even if it is not the primary consideration to justify deprivation of nationality. Plainly the general deterrence of fraud could be one of the express bases for deprivation.

10. Accordingly we were satisfied that in the decision (paragraph 45) the judge misplaced what she described as "? the very strong public interest in deterring entrants to the United Kingdom from obtaining immigration status by deception". The judge continued:

"For there to be no adverse consequence at all to the Appellant's obtaining her citizenship by deception in circumstances where the impact of deprival on her four children is minimal, would be neither an individual or general deterrent, nor mark the Secretary of State's disapproval of such behaviour. As such, I am satisfied that the Respondent's decision to deprive the Appellant of her British citizenship, but not remove her from the United Kingdom, constitutes a lawful and reasonable exercise of discretion, which complies with the Respondent's obligations under Section 55 of the 2009 [BCIA] Act".

We did not find the latter remarks worthy of criticism.

11. Ultimately we accept that there was an error of law by the judge in dealing with this matter. The Original Tribunal decision cannot stand. The parties indicated that this matter could be remade in the Upper Tribunal without the need for further evidence or submissions.

12. We considered the evidence that had been presented and the provisions of the casework instruction, particularly paragraph 55. The Appellant's involvement in fraud was unequivocally established. The Appellant is the mother of four children who are British nationals. The Appellant is not being removed and she is in all likelihood going to obtain 30 months' limited leave to remain because of the children's ages. Accordingly there is nothing disproportionate in this matter in terms of the Respondent's decision. The only element of difference to the Appellant is that she faces application fees; this is not disproportionate. We therefore agree that the deprivation of citizenship will not have a significant effect on the best interests of the children nor will it impact on their status in the United Kingdom nor will it give rise to the removal of the Appellant.

13. In these circumstances, the decision to remove citizenship is justified and properly takes account of the ages of the children insofar as they are material. Ultimately it is the fraudulent conduct of the Appellant which was the basis of the decision and the seriousness of the view taken of it was a matter for the Secretary of State. The following decision is substituted.

NOTICE OF DECISION

14. We find there is a material error of law in the decision of Judge Clark, dated 18 May 2016. We set the decision aside. We remake the decision. We dismiss the appeal under the Immigration Rules.

Signed Date16 October 2016

Deputy Upper Tribunal Judge Davey

TO THE RESPONDENT
FEE AWARD

We have dismissed the appeal and therefore there can be no fee award.

Signed Date 16 October 2016

Deputy Upper Tribunal Judge Davey