Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DC/00009/2020
UI-2021-000869

THE IMMIGRATION ACTS

Heard by way of a hybrid hearing
Decision & Reasons Promulgated
On the 20 May 2022
On the 11 July 2022

Before

UPPER TRIBUNAL JUDGE REEDS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

BAKHTYAR JAMAL MOHAMMED
Respondent

Representation:
For the Appellant: Ms Z. Young, Senior Home Office Presenting Officer
For the Respondent: Mr T. Hussain, Counsel instructed by on behalf of the respondent.

DECISION AND REASONS
1. The First-tier Tribunal did not make an anonymity order and Mr Hussain did not advance any grounds as to why such an order was necessary.
2. The Secretary of State appeals, with permission, against the determination of the First-tier Tribunal (Judge Hendry) promulgated on 22 September 2021. By its decision, the Tribunal allowed the respondent’s appeal against the Secretary of State’s decision dated 6 June 2019 to deprive him of his citizenship under Section 40(3) of the BNA 1981.
3. Permission was granted by FtTJ O’Garro on the 5 November 2021. Whilst this is an appeal brought by the Secretary of State, I intend to refer to the parties as they were before the First-Tier Tribunal.
4. The hearing took place on 20 May 2022, at the Tribunal with Mr Hussain present via video link. Whilst at the beginning there was a connection issue that was resolved no technical problems were encountered during the hearing, and I am satisfied both advocates were able to make their respective cases by the chosen means. Ms Young relied upon the written grounds and her oral submissions.
5. At the hearing Mr Hussain adopted a pragmatic approach and conceded that the decision of the FtTJ involved the making of errors of law as set out in the respondent’s grounds and Ms Young’s submissions and invited the tribunal to remit the appeal to the FtT for a fresh hearing. Both advocates gave consent for a decision to be made under Rule 40.
6. Rule 40 of the Tribunal Procedure (Upper Tribunal) rules 2008 allows the Upper Tribunal to give a decision orally at a hearing. Rule 40 (3) states that the Upper Tribunal must provide written reasons with a decision notice to each party as soon as reasonably practicable after making a decision which finally disposes of all issues in the proceedings. Rule 40 (3) provides exceptions to the rule if the decision is made with the consent of the parties, or the parties have consented to the Upper Tribunal not giving written reasons. In this case the parties consented to a decision without reasons pursuant to Rule 40(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008, so it is not necessary to give detailed reasons.
58. The applicable law has been clarified in the decision in R (Begum) v SIAC[2021] UKSC 7
59. There are three grounds of challenge; firstly that the FtTJ failed to make conclusive findings in respect of the condition precedent of section 40 (3) of the BNA. Secondly the FtTJ erred in law by failing to apply the legal principles set out in Supreme Court’s decision in R(Begum) v SIAC [2021] UKSC 7 and therefore went further than reviewing the SSHD’s decision not to exercise discretion by failing to adopt the approach set out in paragraph 71 of the judgment in Begum, which is to consider whether the Secretary of State has made findings of fact which are unsupported by any evidence or are based on a view of the evidence that could not reasonably be held. Thirdly, that the FtTJ made a material misdirection in law in respect of the assessment of whether depriving the appellant of British citizenship would constitute a violation of Article 8, contrary to the obligation under section 6 of the Human Rights Article 1998 not to act in a way that is incompatible with the ECHR by failing to apply the correct legal test (determining the reasonably foreseeable consequences of deprivation) but by conducting a proleptic assessment of the likelihood of the appellant being lawfully removed from the United Kingdom.
7. As the grounds set out, the judge failed to make conclusive findings in respect of the condition precedent of section 40 (3) and paragraph 83 failed to engage with the matters set out in the decision letter and the documents concerning the claim set out in the annex at A-D. That was necessary before embarking upon the next stage of assessment. The errors of law are of such a fundamental nature to the appeal as the grounds set out, as the correct legal approach had not been followed as set out in Begum and the decision of Ciceri (deprivation of citizenship appeals: principles) 2001 UKUT 238. Neither party invited the Tribunal to preserve any findings given the fundamental nature of the errors of law and both requested that the decision should be set aside and remitted to the FtT for a fresh hearing. Having considered the nature of the errors and in the light of the practice statement I agree with the advocates that the decision should be remitted to the FtT.
8. For those reasons, the decision of the FtTJ did involve the making of an error point of law and the decision of the FtTJ shall be set aside and remitted to the FtT.
Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law. The decision of the First-tier Tribunal shall be set aside and shall be remitted to the First-tier Tribunal to be heard afresh.

Signed Upper Tribunal Judge Reeds
Dated : 20 May 2022