Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DC/00033/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 March 2019
On 10 April 2019

Before

LORD UIST
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
UPPER TRIBUNAL JUDGE CANAVAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Bujar Laci
Respondent

Representation:
For the Appellant: Mr C Avery, Home Office Presenting Officer
For the Respondent: Mr R Wilcox, Counsel, instructed by Connaughts

DECISION AND REASONS
1. For the sake of continuity, we will refer to the parties as they were before the First-tier Tribunal although technically the Secretary of State is the appellant in the appeal before the Upper Tribunal.
2. The appellant entered the UK on 22 August 1999, when he was only 13 years old and claimed asylum asserting that he feared persecution in Kosova as an ethnic Albanian. The respondent refused the application in a decision dated 29 February 2000 but granted the appellant Exceptional Leave to Remain in the UK. On 17 April 2004 he was granted Indefinite Leave to Remain. The appellant then applied for and was granted naturalisation as a British citizen in 2005. In the application form he continued to assert that he was born in Gjakova in Kosova. By the time he applied for British nationality the appellant was an adult.
3. It came to light that the appellant was an Albanian national. The respondent contacted the appellant on 17 February 2009 to inform him that he was considering depriving him of British citizenship. The respondent took no further action until 28 February 2018 when he again notified the appellant that he was considering depriving him of British citizenship. The respondent issued a decision to deprive the appellant of his nationality as a British citizen under section 40(3) of the British Nationality Act 1981 on 22 June 2018. The appellant accepted that he falsely claimed to be from Kosova on arrival in the UK on the advice of an agent and that this was repeated in the application for naturalisation.
4. The appellant appealed the decision to the First-tier Tribunal. The appeal was brought under section 40A(1) of the British Nationality Act 1981. First-tier Tribunal Judge Ross allowed the appeal in a decision promulgated on 7 December 2018. The facts were not in dispute. He quoted the findings of the Upper Tribunal in BA (deprivation of citizenship: appeals) [2018] UKUT 00085:
“(1) In an appeal under section 40A of the British Nationality Act 1981, 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 (P) of British citizenship.
(2) In a section 40(2) case, the fact that the Secretary of State is satisfied that deprivation is conducive to the public good is to be given very significant weight and will almost inevitably be determinative of that issue.
(3) In a section 40(3) case, the Tribunal must establish whether one or more of the means described in subsection (3)(a), (b) and (c) were used by P in order to obtain British citizenship. As held in Pirzada (Deprivation of citizenship: general principles) [2017] UKUT 196 (IAC) the deception must have motivated the acquisition of that citizenship.
(4) In both section 40(2) and (3) cases, the fact that the Secretary of State has decided in the exercise of her discretion to deprive P of British citizenship will in practice mean the Tribunal can allow P’s appeal only if satisfied that the reasonably foreseeable consequence of deprivation would violate the obligations of the United Kingdom government under the Human Rights Act 1998 and/or that there is some exceptional feature of the case which means the discretion in the subsection concerned should be exercised differently.
(5) As can be seen from AB (British citizenship: deprivation: Deliallisi considered) (Nigeria) [2016] UKUT 451 (IAC), the stronger P’s case appears to the Tribunal to be for resisting any future (post-deprivation) removal on ECHR grounds, the less likely it will be that P’s removal from the United Kingdom will be one of the foreseeable consequences of deprivation.
(6) The appeal is to be determined by reference to the evidence adduced to the Tribunal, whether or not the same evidence was before the Secretary of State when she made her decision to deprive.”
5. Judge Ross reminded himself of the terms of section 40(3) of the British Nationality Act [14]. He concluded that it was open to the Secretary of State to exercise discretion to deprive the appellant of British citizenship because he made false representations on arrival and in the application for naturalisation [16]. However, having considered the guidance in BA, he noted at the end of [16] that the appeal under section 40A of the 1981 Act could raise issues relating to Article 8 of the European Convention and that human rights grounds were argued.
6. The judge’s findings are contained in four short paragraphs of the decision:
“17. The Secretary of State has been aware of the appellant’s true nationality since early 2007. The true facts were revealed by the appellant when he sponsored his mother’s visit visa application in early 2007. Notwithstanding that, his British passport was renewed in 2006. I find that the appellant has successfully integrated in the UK as a professional person. He has provided in his bundle evidence of his employment and positive testimonials as to his conduct and character.
18. The respondent’s own policy set out at Chapter 55 of the Nationality Directorate, whilst no longer referring to long residence of more than 14 years, does state that length of residence alone will not normally be a reason not to deprive a person of their citizenship. Accordingly, length of residence remains a relevant factor to be considered in deciding whether a deprivation decision is reasonable/balanced.
19. I find that the appellant has a strong Article 8 claim. He has lived in the UK for almost 20 years and would be able to apply for indefinite leave to remain on private life grounds in August 2019. The appellant has established family life in the UK with his wife who is settled here and his son who is a British citizen. Whilst the deprivation of his citizenship would not necessarily lead to his removal from the UK, the foreseeable consequences are that the appellant would have a lack of settle status, affecting his ability to continue to work and provide for his family. He would also be liable to administrative removal.
20. In the circumstances of this case, I find that the foreseeable consequences of the decision amounts to a disproportionate interference with family life in breach of Article 8 ECHR. I find that the public interest in depriving the appellant’s citizenship is significantly reduced by the unexplained delay of 9 years in the consideration of this decision.”
7. The Secretary of State appeals the First-tier Tribunal decision claiming the judge failed to apply the principles outlined in BA properly. He failed to (i) give significant weight to the Secretary of State’s view that deprivation was the correct course of action; and (ii) to consider whether removal was a foreseeable consequence of the decision. The fact that the judge thought that the appellant had a strong Article 8 claim should have militated towards a finding that removal was not a foreseeable consequence of deprivation.
Decision and reasons
Error of law
8. Having considered the submissions made by both parties, we conclude that the First-tier Tribunal decision involved the making of an error on a point of law. The crux of the appeal as put forward by the Secretary of State really is in the second ground whereby he argues that the judge erred in his application of the principles in BA. This is largely because of the judge’s finding at [19] that the appellant had a strong Article 8 claim. Although it was open to the judge to take into account the background to the case and the length of residence that the appellant had in the UK, as well as the delay in making the decision to deprive him of citizenship, having come to the conclusion that the appellant had a strong Article 8 claim it seems to us that the judge then failed to apply the principle that was clearly outlined at paragraph (5) of the headnote in BA, which made clear that the stronger a person’s case appears to be for resisting any future removal on ECHR grounds, the less likely it will be that the person’s removal will be one of the foreseeable consequences of deprivation.
9. Although the judge was correct to say that Article 8 might be a relevant consideration in an appeal under the British Nationality Act paragraph (4) of the headnote in BA seems to make clear that it is strictly within the context of a decision to deprive a person of British citizenship. The primary appeal is against a decision to deprive a person of British citizenship. It is only in that context that human rights might become relevant if removal in consequence of the decision to deprive is reasonably foreseeable. Although human rights considerations may have a part to play, the assessment is not the same as one that might be undertaken when deciding whether someone should be granted leave to remain on human rights grounds in an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002.
10. It was open to the judge to consider matters that were relevant to the strength of a potential Article 8 claim. However, those factors were only relevant to whether the consequence of a legitimate deprivation of citizenship was likely to lead to the appellant’s removal. Given that the judge assessed the appellant to have a strong Article 8 claim, for the reasons given, removal was not likely to be a foreseeable consequence of deprivation of citizenship.
11. Even if we are wrong regarding the scope of the Article 8 assessment with reference to paragraph (4) of the headnote in BA we find that, in any event, the judge’s assessment of Article 8 was incomplete. Even if the scope of the Article 8 considerations in an appeal under section 40A is wider, the judge failed to balance the factors that weighed in favour of the appellant against the public interest considerations, which included the fact that the appellant made false representations to obtain British nationality.
12. It was argued that the judge was entitled to find that the reason why the decision was disproportionate was that the appellant had now established a firm family and private life in the UK and that the deprivation of his citizenship would lead to a lack of settled status affecting his ability to continue work and to provide for his family. However, even if that was the case there would need to be strong evidence to show why that in itself would engage the appellant’s rights under Article 8 and there is no evidence to suggest that the judge adequately weighed whether a period of unsettled status would nevertheless be proportionate given the circumstances of this case.
Remaking
13. We set aside the decision because there is an error of law in the way the First-tier Tribunal applied the decision in BA. No error is asserted in the findings of fact and we have no reason to go behind the judge’s finding that the appellant is likely to have a strong Article 8 claim.
14. There was some excuse for the initial lie because the appellant was a child following the instructions of an agent. However, there was no excuse for maintaining the lie when he applied for citizenship, which was done when he was an adult. This was the operative lie that led to the deprivation decision. Section 40(3) of the 1981 Act allows the respondent to deprive a person of citizenship status if he is satisfied that naturalisation was obtained by means of fraud, false representation or concealment of a material fact. The appellant accepts that he obtained citizenship by way of deception.
15. In an appeal under section 40A human rights considerations are only relevant to an assessment of the reasonably foreseeable consequences of deprivation. Clearly, the appellant has lived in the UK for a long time. The appellant has established a family and private life in the UK with his wife and son, who is a British citizen. The judge also noted that there was evidence to show that the appellant has successfully integrated into the UK as a professional person and that there were testimonials relating to his employment in the UK and to his conduct and character.
16. The Secretary of State would also have to take into account the fact that there is no evidence to show that the appellant has been convicted of any criminal offences in the UK. Apart from the lie that underpinned a false application for British citizenship there appear to be no other strong public policy considerations relating to the appellant’s conduct in the UK. Having made the finding that the appellant has a strong Article 8 claim we found that the judge erred in failing to apply the guidance in BA. In remaking we apply that guidance.
17. Insofar as human rights are relevant to an appeal under sections 40(2) or (3) of the 1981 Act, human rights are relevant only if the Upper Tribunal is satisfied that a reasonably foreseeable consequence of deprivation would be a violation of the appellant’s rights under the Human Rights Act 1998 or that there is some other exceptional feature of the case which means that discretion in the sub-section concerned should be exercised differently.
18. In assessing what the consequence of deprivation we note that the judge accepted that the consequence of deprivation of citizenship would not necessarily lead to his removal from the UK. In paragraph (5) of the headnote in BA the Upper Tribunal made clear that the stronger a person’s case for resisting any future removal on human rights grounds “the less likely it will be that P’s removal will be one of the foreseeable consequences of deprivation”.
19. We must remember that the core decision in this appeal is the decision to deprive the appellant of citizenship status, to which he was not entitled because he made false representations to the Secretary of State. The deprivation of citizenship is a first step in the process that he will have to go through once his citizenship status is revoked. The fact that he may have a lack of settled status while he makes an application for leave to remain on human rights grounds is justified and proportionate given the public interest in depriving those of citizenship to which they were not entitled because it was obtained by fraud or deception.
20. In conclusion, if the points made in BA at paragraphs (4) and (5) are applied properly to the facts found by the First-tier Tribunal it must lead to the conclusion that the foreseeable consequence of deprivation is not likely to lead to breach of the appellant’s rights under Article 8. The judge found that the appellant is likely to have a strong Article 8 claim. The appellant would face a period of uncertainty, but such uncertainty is justified and proportionate on the facts of this case. He would need to await the outcome of any further application for leave to remain on human rights grounds. At the current time he is not threatened with removal. Given his length of residence and his family circumstances the appellant may have a strong case for leave to remain to be granted, but that does not render the decision to deprive him of citizenship, which he accepts he obtained by deception, unlawful or disproportionate.
21. For these reasons, the appeal is remade and dismissed.

DECISION
The First-tier Tribunal decision involved in the making of an error on a point of law.
The decision is remade and the appeal against deprivation of citizenship is DISMISSED

Signed Date 09 April 2019
Upper Tribunal Judge Canavan