Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber)
Appeal Number: DC/00135/2019

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 October 2021
On 24 January 2022

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

SYED TAHSEEN AHMED
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Solomon, Counsel, instructed by Woolfe & Co Solicitors
For the Respondent: Mr Lindsay, Senior Presenting Officer

DECISION AND REASONS

1. On 20 April 2021, I issued my first decision in this appeal. I found that the First-tier Tribunal (Judge Howorth) had erred materially in law in dismissing the appellant’s appeal. I set aside the FtT’s decision and directed that the decision on the appeal would be remade in the Upper Tribunal after a de novo hearing. The resumed hearing came before me on 27 October 2021 and this is my decision on the appellant’s appeal. I regret the delay in finalising this decision, which resulted from my infection with Covid-19 after the resumed hearing.

Background
2. Much of what follows is taken from the helpful chronology prepared by the appellant’s solicitors. (Albeit that some of the chronology is contentious, as will shortly become clear.)
3. The appellant is a Pakistani national who was born on 6 January 1976. On 18 March 2001, he married a woman called Farhat Sbuhi in Pakistan. Their daughters Aila and Aleena were born on 28 August 2002 and May 2004 respectively. On 5 March 2006, the appellant entered the United Kingdom, holding entry clearance which conferred leave to enter as a student. The appellant and his wife had a third daughter, Syeda, on 19 October 2006.
4. Two months later, whilst in the United Kingdom, the appellant met a Polish woman named Weronika Aneta Lebkowska and started a relationship with her. In October 2008, the appellant received a document from Pakistan entitled ‘Divorce Deed’. It was signed by the appellant’s wife and by two witnesses in the presence of a Notary Public. It stated as follows:
I, Farhat Sabohi (DOB 01-12-1978) daughter of Siddique Hussain Shah, Caste Syed, resident of village Pang Piran, Tehsil and District Kotli (Azad Kashmir) Pakistan.
WHEREAS, the executant marriage with Mr Syed Tahseen Ahmed (DOB 06-01-1976), caste Syed, resident of village Pang Piran, Tehsil & District Kotli (Azad Kashmir) Pakistan, took place on 18-03-2001 according to Islamic Law. The relationship between the executant and her husband referred above are unpleasant since last 3 years continuously despite of considerable efforts that their relations will be restored and rehabilitated but in vein [sic]. Now the executant with her free will, without any compulsion or coercion, do hereby pronounces [sic] triple divorce, divorce, divorce, divorce by uttering the words from her mouth and thereby separates the said Mr Syed Tahseen Ahmed from his marital ties permanently. This divorce is irrevocable Mr Syed Tahseen Ahmed will have full rights to enter into the second marriage after expiration of three months statutory period of IDAT, to which the executant will not have any objection.
This divorce deed has been duly executed and completed in the presence of two witnesses.
5. On 28 May 2009, the appellant made an application for a residence card as the extended family member of an EEA national (Ms Lebkowska), based upon their durable relationship. It is accepted that he submitted the Divorce Deed to the respondent in support of this application.
6. On 16 September 2009, the appellant and Ms Lebkowska underwent an Islamic marriage ceremony at a mosque in Luton. On 27 July 2010, the appellant was granted a residence card as Ms Lebkowska’s extended family member.
7. On 1 January 2011, the appellant travelled to Pakistan and remained there for 34 days. He had sexual intercourse with his wife during this time and their fourth child, a son named Hamza, was born on 24 September 2011.
8. On 21 July 2015, the appellant made an application for permanent residence, submitting that he had resided in the UK in accordance with the EEA Regulations for five years. That submission was based upon his relationship with Ms Lebkowska. The application was refused on 14 December 2015, as the respondent concluded that Ms Lebkowska was not registered with the Worker Registration Scheme. The appellant appealed to the FtT.
9. In December 2016, whilst the appellant’s appeal to the FtT was pending, he separated from Ms Lebkowska and moved out of the property they had been sharing. On 21 February 2017, the appellant’s appeal against the refusal of a permanent residence card was heard by Judge Heatherington, sitting in Birmingham. The appellant was represented by Mr Solomon, the respondent by a Presenting Officer. The appellant attended the hearing, Ms Lebkowska did not, although she provided a signed statement.
10. The judge was told that the appellant and Ms Lebkowska had separated in December 2016. He considered that to be immaterial as ‘the five year qualification period was completed in 2015’: [7.7]. He was satisfied that Ms Lebkowska had been a qualified person in the UK for upwards of seven years. He found that she had registered her employment under the Workers Registration Scheme: [7.8]. The judge therefore allowed the appeal on the basis that the appellant was entitled to permanent residence.
11. The respondent did not seek permission to appeal to the Upper Tribunal and, on 12 July 2017, she issued the appellant with a Permanent Residence Card.
12. In August 2017, the appellant travelled again to Pakistan and reconciled (or is said to have reconciled) with his wife. On 30 July 2018, he made an application for naturalisation. The application was approved on 20 August 2018. The appellant attended his naturalisation ceremony nine days later. He subsequently applied for and was issued with a British passport.
13. On 17 December 2018, the appellant’s wife and children applied for entry clearance as his relatives. That application prompted the Secretary of State to write to the appellant on 12 April 2019. In her letter, she stated that she had reason to believe that the appellant had obtained his British citizenship as a result of fraud. The allegation was summarised in this way:
The Secretary of State is in possession of information confirming that you obtained status in the United Kingdom as a result of a bigamous marriage to the EEA national ‘Weronika Aneta Lebkowska’ whilst you were still married and in a subsisting relationship with Pakistan national ‘Farhat Sbuhi’.
14. The appellant’s solicitors responded to the Secretary of State’s letter on 1 May 2019. It was submitted that there had been no fraud or deception by the appellant. The burden was on the Secretary of State and no evidence had been adduced. The appellant and his wife were said to be first cousins who lived close to each other. The respondent had been ‘consistently informed of the marriage’ during the appellant’s applications for residence and nationality. The appellant had provided the Divorce Deed, indicating that Ms Sbuhi had separated from the appellant and wanted a divorce. They had been separated and not in a subsisting relationship between 2006 and 2017. Contact had only been in connection with the children and did not amount to a genuine and subsisting relationship as defined in the Immigration Directorate Instructions. Even if there was fraud, which was disputed, the proper course would be to exercise discretion in the appellant’s favour and not to deprive him of his British citizenship. Statements were made by the appellant and his wife in support of these submissions.
The Respondent’s Decision
15. On 29 November 2019, the respondent made a decision to deprive the appellant of his citizenship, under s40 of the British Nationality Act 1981. She had decided that the appellant’s British citizenship had been obtained by fraud and that s40(3) applied. The letter is poorly structured and repetitive but the central allegations were summarised in the following excerpt, from [21] of the letter:
The basis of your EEA2 application and your permanent residence application was your relationship with Weronika Aneta Lebkowska. You stated on these applications that you were ‘the unmarried partner of the EEA national and in a durable lasting relationship’. You also provided the Pakistani Divorce Deed documents confirming the marriage with your wife, Farhat Sabuh in Pakistan had ended. Your residence/grant of further leave to remain was granted solely on the fact that you were in a relationship with an EEA national, Weronika Aneta Lebkowska and you were divorced from your previous marriage. If it had been known that you were still married to Farhat Sabuh and the Pakistani Divorce Deed document was false, you would not have been granted residency. It is therefore evident that your application would have been refused under Section 1.3 and 9.3 [of the Good Character guidance] if the nationality caseworker had known that you had presented false information on your previous Home Office applications, you had presented a false divorce document and that you had withheld the material fact that you were still married in Pakistan. Consequently, you would not have been able to naturalise under section 6(1).
16. The respondent concluded that it would not be contrary to Article 8 ECHR to deprive the appellant of his citizenship. She did not consider that to do so would render him stateless. She declined to exercise her discretion in the appellant’s favour.
Proceedings on Appeal
17. As I have already noted, the appellant’s appeal against the respondent’s decision was dismissed. Permission to appeal against that decision was granted by Designated Judge Shaerf and I found, with the concurrence of the respondent, that the FtT’s decision was vitiated by legal error and could not stand. I need say nothing more about the FtT’s conclusions in the circumstances.
18. In preparation for the resumed hearing, both parties had complied with directions by filing and serving skeleton arguments in which they considered, amongst other matters, the application of the Supreme Court’s decision in R (Begum) v SIAC [2021] UKSC 7; [2021] Imm AR 879 to an appeal against a deprivation decision under s40(3) of the BNA 1981.
19. Mr Solomon confirmed that the appellant continued to rely on the bundle which had been filed electronically on 13 February 2020. He called the appellant, his brother and his brother-in-law to give oral evidence, none of whom required an interpreter. They each adopted their witness statements and were cross-examined by Mr Lindsay. I do not propose to rehearse the oral evidence in this decision. I shall refer to it insofar as it is necessary to do so to explain my findings of fact.
Submissions
20. Mr Lindsay relied on the decision letter and the skeleton argument. There had been a material development in the law in the form of the President’s decision in Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238 (IAC). That decision was important for the determination of this appeal and it was only open to the appellant to challenge the respondent’s decision on public law grounds. The burden was therefore on the appellant to establish a material flaw in the respondent’s decision.
21. Mr Lindsay submitted that the appellant had accepted in his witness statement that the Divorce Deed was submitted to the respondent. (Mr Solomon interjected, noting that it had been submitted in support of the application in 2009 but it had not been submitted in support of the application for a permanent residence card in 2015.) Mr Lindsay accepted this, but submitted that the appellant had represented to the respondent in 2009 that his marriage had permanently broken down in order to secure a Residence Card. The appellant had deceived the Secretary of State throughout; he had remained married to his wife and had conceived a fourth child with her whilst at the same time remaining in the UK as the durable partner of an EEA national. The appellant could not establish that the factual conclusion reached by the respondent was one which no reasonable Secretary of State could reach.
22. It was not submitted by the respondent that the appellant had committed the criminal offence of bigamy. The decision letter should not be read in that way, but instead as suggesting that the appellant had been married and in a relationship with his wife throughout the time that he maintained that he was in a relationship with Ms Lebkowska. That central allegation was not Wednesbury unreasonable and the appellant had not suggested that there was any other legal error on the part of the Secretary of State. The appellant had submitted that Ciceri was wrongly decided but the respondent submitted that the President’s decision was correct.
23. Mr Lindsay submitted that the appellant’s reliance on the Divorce Deed in support of the 2009 application was liable to mislead. The chronology thereafter was incredible. It was not plausible, in particular, that the appellant and his wife would have stayed the night together and engaged in sexual intercourse if they did not believe themselves to be married in 2011. The respondent had been entitled to conclude that the appellant had sought to mislead her by the submission of the Divorce Deed in 2009.
24. It was accepted that Article 8 ECHR was engaged but it would be very unusual, according to the authorities, for a decision such as the one under appeal to be found to be in breach of Article 8 ECHR. The appellant’s family life was with his wife and children in Pakistan and it was not easy to see how that would be compromised by a decision to deprive the appellant of his British citizenship. There was a heavy public interest in that course and the accepted fact that s117B of the Nationality, Immigration and Asylum Acts was not applicable made no material difference to that weight.
25. Mr Solomon adopted the skeletons he had prepared for the FtT and the Upper Tribunal. It was the appellant’s position that Begum v SIAC had not materially altered the nature of the Tribunal’s task, which was more nuanced than the respondent had suggested. The Tribunal was not limited to the material which was before the respondent and was entitled to take into account any evidence adduced before it. The proper approach was common to the analysis under the statute and Article 8 ECHR. The proper approach remained that set out by the Court of Appeal at [6] of KV (Sri Lanka) v SSHD [2018] EWCA Civ 2483; [2018] 4 WLR 166. The appellant in Ciceri had sought permission to appeal to the Court of Appeal. The burden of proof was on the respondent.
26. The appellant had married in 2001 and had two children with his wife. He had then come to the UK and it had upset his wife. She moved out of the family home and returned to her parents. The appellant had then struck up a relationship with a woman in the UK and had obtained a residence card as her partner. The relationship between the appellant and his wife had broken down in 2006 and the fact that they had slept together on a single occasion in 2011 did not affect that. The relationship between the appellant and his wife had not rekindled until he returned to Pakistan after his relationship with Ms Lebkoska had broken down. The appellant had believed, in fact, that he was divorced from his wife until they had received further advice on the matter in 2017. It was only at that point that it had become clear that the Divorce Deed was of no legal effect.
27. The evidence of the appellant and the two witnesses was consistent in every respect. The appellant’s brother-in-law’s name was very similar to that of his father. The appellant’s wife had not mentioned in her latest statement that she had moved out of the family home after the appellant began a relationship with Ms Lebkowska but that had been included in the statement she made to the respondent in 2019. It was to be recalled that the 2006 Regulations did not require the relationship between the appellant and his wife to have broken down before he could be recognised as Ms Lebkowska’s durable partner; that was only an aspect of the respondent’s policy.
28. The respondent had adduced no evidence to show that the Divorce Deed was a fraudulent document. It was not a divorce certificate and it did not claim to be. According to the IDI on spouses, this was a bare talaq divorce from Azad Kashmir, which was not valid there or in the UK.
29. Even if the appellant was required to show that the respondent had made a public law error in her decision, that was clearly established. She had misunderstood the Divorce Deed and she had failed to engage with the appellant’s reasonable belief that he was divorced when he provided the Divorce Deed to the respondent. There was no bigamous marriage and the respondent had erred in suggesting as much; the appellant’s marriage in the UK was not a recognised marriage as it was only a nikkah nama ceremony at a mosque. None of that had been hidden from the respondent. The respondent had also failed to engage with the appellant’s contention that his fourth child had been the product of a one-night stand. The respondent’s decision was also replete with speculation.
30. The appellant’s Article 8 ECHR claim was based on the limbo into which he would be placed by depriving him of his British citizenship. He had a significant life in the UK and to place him into the hostile environment would be to cause him real difficulties.
31. I reserved my decision at the end of the submissions.
Analysis
32. As will be apparent from my summary of the competing submissions, the proper approach to fact finding in a case of this nature is in dispute. Mr Lindsay’s submission is that the Tribunal must, in a case of this nature, adopt the Secretary of State’s analysis of the evidence unless that analysis is tainted by public law error. Mr Solomon submits that the analysis is for the Tribunal and that he need not establish a public law error in the decision under challenge.
33. Prior to Begum v SIAC, the correct approach was clear. It was summarised by Leggatt LJ (with whom Sir Geoffrey Vos C, as he then was, and Haddon-Cave LJ agreed) in KV v SSHD. Having considered the decisions of the Upper Tribunal in Deliallisi v SSHD [2013] UKUT 439 (IAC) and BA v SSHD [2018] Imm AR 807, Leggatt LJ said that he did not understand it to be contentious that the following principles, as articulated in those decisions, continued to apply:
(1)     Like an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002, an appeal under section 40A of the 1981 Act is not a review of the Secretary of State's decision but a full reconsideration of the decision whether to deprive the appellant of British citizenship.
(2)     It is thus for the tribunal to find the relevant facts on the basis of the evidence adduced to the tribunal, whether or not that evidence was before the Secretary of State when deciding to make a deprivation order.
(3)     The tribunal must first establish whether the relevant condition precedent specified in section 40(2) or (3) exists for the exercise of the discretion whether to deprive the appellant of British citizenship. In a section 40(3) case, this requires the tribunal to establish whether citizenship was obtained by one or more of the means specified in that subsection.
(4)     If the condition precedent is established, the tribunal has then to ask whether the Secretary of State's discretion to deprive the appellant of British citizenship should be exercised differently. For this purpose, the tribunal must first determine the reasonably foreseeable consequences of deprivation.
(5)     If the rights of the appellant or any other relevant person under article 8 of the European Convention on Human Rights are engaged, the tribunal will have to decide whether depriving the appellant of British citizenship would constitute a disproportionate interference with those rights. But even if article 8 is not engaged, the tribunal must still consider whether the discretion should be exercised differently.
34. In Begum v SIAC, the Supreme Court considered the nature of an appeal to SIAC under s2B of the Special Immigration Appeals Commission Act 1997, which is the equivalent of section 40A of the BNA 1981. As is well known, the decision to deprive Shamima Begum of her British citizenship had been taken under s40(2) of the BNA 1981, on the basis that the Secretary of State was satisfied that deprivation was conducive to the public good. Having reviewed a number of authorities, including Deliallisi and BA, Lord Reed PSC summarised SIAC’s task in such a case in the following way:
[71] Nevertheless, SIAC has a number of important functions to perform on an appeal against a decision under section 40(2). First, it can assess whether the Secretary of State has acted in a way in which no reasonable Secretary of State could have acted, or has taken into account some irrelevant matter, or has disregarded something to which he should have given weight, or has been guilty of some procedural impropriety. In doing so, SIAC has to bear in mind the serious nature of a deprivation of citizenship, and the severity of the consequences which can flow from such a decision. Secondly, it can consider whether the Secretary of State has erred in law, including whether he has made findings of fact which are unsupported by any evidence or are based upon a view of the evidence which could not reasonably be held. Thirdly, it can determine whether the Secretary of State has complied with section 40(4), which provides that the Secretary of State may not make an order under section 40(2) “if he is satisfied that the order would make a person stateless”. Fourthly, it can consider whether the Secretary of State has acted in breach of any other legal principles applicable to his decision, such as the obligation arising in appropriate cases under section 6 of the Human Rights Act. In carrying out those functions, SIAC may well have to consider relevant evidence. It has to bear in mind that some decisions may involve considerations which are not justiciable, and that due weight has to be given to the findings, evaluations and policies of the Secretary of State, as Lord Hoffmann explained in Rehman and Lord Bingham reiterated in A. In reviewing compliance with the Human Rights Act, it has to make its own independent assessment.
[emphasis supplied]
35. It is particularly upon the second of those functions which Mr Lindsay focuses in making the submission that the Tribunal should now regard itself as confined to a Wednesbury-style review of the Secretary of State’s decision in considering the condition precedent question posed by s40(3) of the BNA 1981. In making that submission, he draws considerable support from the recent decision of the President and the Vice President of this chamber in Ciceri [2021] UKUT 238 (IAC). For present purposes, only the first of the reformulated KV principles is relevant but I set out the whole of [30] for completeness:
(1)     The Tribunal must first establish whether the relevant condition precedent specified in section 40(2) or (3) of the 1981 Act exists for the exercise of the discretion whether to deprive the appellant of British citizenship. In a section 40(3) case, this requires the Tribunal to establish whether citizenship was obtained by one or more of the means specified in that subsection. In answering the condition precedent question, the Tribunal must 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. [emphasis supplied]
(2)     If the relevant condition precedent is established, the Tribunal must determine whether the rights of the appellant or any other relevant person under the ECHR are engaged (usually Article 8). If they are, the Tribunal must decide for itself whether depriving the appellant of British citizenship would constitute a violation of those rights, contrary to the obligation under section 6 of the Human Rights Act 1998 not to act in a way that is incompatible with the ECHR.
(3)     In so doing:
(a)     the Tribunal must determine the reasonably foreseeable consequences of deprivation; but it will not be necessary or appropriate for the Tribunal (at least in the usual case) to conduct a proleptic assessment of the likelihood of the appellant being lawfully removed from the United Kingdom; and
(b)     any relevant assessment of proportionality is for the Tribunal to make, on the evidence before it (which may not be the same as the evidence considered by the Secretary of State).
(4)     In determining proportionality, the Tribunal must pay due regard to the inherent weight that will normally lie on the Secretary of State’s side of the scales in the Article 8 balancing exercise, given the importance of maintaining the integrity of British nationality law in the face of attempts by individuals to subvert it by fraudulent conduct.
(5)     Any delay by the Secretary of State in making a decision under section 40(2) or (3) may be relevant to the question of whether that decision constitutes a disproportionate interference with Article 8, applying the judgment of Lord Bingham in EB (Kosovo). Any period during which the Secretary of State was adopting the (mistaken) stance that the grant of citizenship to the appellant was a nullity will, however, not normally be relevant in assessing the effects of delay by reference to the second and third of Lord Bingham’s points in EB (Kosovo) (see paragraph 20 above).
(6)     If deprivation would not amount to a breach of section 6 of the 1998 Act, the Tribunal may allow the appeal only if it concludes that the Secretary of State has acted in a way in which no reasonable Secretary of State could have acted; has taken into account some irrelevant matter; has disregarded something which should have been given weight; has been guilty of some procedural impropriety; or has not complied with section 40(4) (which prevents the Secretary of State from making an order to deprive if she is satisfied that the order would make a person stateless).
(7)     In reaching its conclusions under (6) above, the Tribunal must have regard to the nature of the discretionary power in section 40(2) or (3) and the Secretary of State’s responsibility for deciding whether deprivation of citizenship is conducive to the public good.
36. Despite the seniority of the panel which decided Ciceri, and notwithstanding that it was only reported on 8 September 2021, Mr Solomon submits that it was wrongly decided and that it should not be followed. The basis upon which he makes that submission is summarised at [13] of his admirably concise skeleton argument. I intend him no discourtesy in summarising those carefully constructed arguments in this way: Begum v SIAC was concerned with national security measures, whereas an appeal against a decision under s40(3) is not and, whilst there is every reason to treat a decision of the former kind as justiciable only on Wednesbury grounds, there is no proper reason to treat an appeal against a decision of the latter kind in the same way. That approach is amply supported, Mr Solomon submits, by earlier dicta in Lord Reed’s judgment, not least those in [69], in which he highlighted that ‘the characterisation of a jurisdiction as appellate does not determine the principles of law with the appellate body is to apply.’ Mr Solomon submits that when Begum v SIAC is properly understood, it provides no reason to depart from what was said by the Court of Appeal in KV v SSHD as regards the correct approach to the condition precedent posed by s40(3) of the BNA 1981.
37. These are well-constructed arguments which I explored with the advocates at the hearing. In addition to Mr Solomon’s careful analysis of the decision in Begum v SIAC, I have my own concerns about the workability of confining the analysis of the condition precedent question to a Wednesbury-style review. The principal concern relates to the reception of evidence which was not before the Secretary of State. It is entirely commonplace in appeals of this nature for the Tribunal to decide an appeal by taking into account evidence, both oral and documentary, which was not before the Secretary of State when she took the deprivation decision under s40(3). In the event that the Tribunal was confined to a review more akin to that in a judicial review, however, that evidence would not be admissible, since it is in the nature of a review that the reviewing body is confined to the material before the decision maker. I can discern no such intention in the wording of the BNA 1981, and the omission of any such limitation is particularly significant when a similar limitation has previously been applied to the jurisdiction of the Tribunal in considering appeals against certain categories of refusal (see, for example, the version of s85(5) of the Nationality, Immigration and Asylum Act 2002, as in force between 31 August 2006 and 22 May 2011, which confined the Tribunal’s consideration to ‘only the circumstances appertaining at the time of the decision to refuse’).
38. It was Mr Lindsay’s submission that the Tribunal was confined to considering the evidence before the respondent insofar as it was considering the condition precedent question of whether citizenship was obtained by deception (etc) but that any additional evidence might nevertheless be relevant to the separate question of whether deprivation was in breach of s6 of the Human Rights Act 1998. Quite aside from the confusion which would be brought about by accepting that submission, I come back to the fact that no such limitation appears in statute.
39. I recognise, therefore, that there are arguments before me which did not feature in Ciceri, and that the additional considerations which I have raised immediately above were not ventilated before the President and the Vice President. Ultimately, however, I do not consider this to be the occasion to resolve the argument one way or the other. I have come to that conclusion because it is quite clear to me that the condition precedent question must be resolved against the appellant even on the conventional KV v SSHD approach which Mr Solomon invites me to adopt. I say that for the following reasons.
40. As Mr Solomon submitted at [17] of his skeleton argument before the FtT, it would conventionally be for the respondent to establish that it is more probable than not that the appellant obtained his British citizenship by means of fraud, false representation or concealment of a material fact. I add to that succinct statement of the law that the Tribunal must, in considering that question, bear in mind the serious nature of the allegation and the serious consequences which follow from a finding of dishonesty: Balajigari & Ors v SSHD [2019] EWCA Civ 673; [2019] Imm AR 1152.
41. The burden of proof in such a case has been explored in a number of authorities. Whilst the legal burden of proving fraud remains on the respondent throughout, the various stages of the analysis were considered in cases including Shen [2014] UKUT 236 (IAC), as cited at [21] of Mr Solomon’s first skeleton, and SSHD v Shehzad & Chowdhury [2016] EWCA Civ 615. In the latter decision, in endorsing what had been said in Shen and another decision of the Upper Tribunal, Beatson LJ (with whom Black LJ, as she then was, and King LJ agreed) said this, at [3]:
It is also common ground that the Secretary of State bears the initial burden of furnishing proof of deception, and that this burden is an "evidential burden". That means that, if the Secretary of State provides prima facie evidence of deception, the burden "shifts" onto the individual to provide a plausible innocent explanation, and that if the individual does so the burden "shifts back" to the Secretary of State…
42. It is appropriate at this stage to focus with some precision on the allegations actually pursued by Mr Lindsay before me. As I have recorded, it was suggested in the respondent’s decision that the Divorce Deed was a forged document. Mr Lindsay expressly disavowed any such submission. He also disavowed any suggestion that the appellant had contracted a bigamous marriage, since he accepted that the appellant and Ms Lebkowska had never married, other than in Islamic law. Nor did Mr Lindsay attempt to pursue the submission made in the respondent’s decision that the appellant had concealed a material fact in failing to alert her to the fact that he and Ms Lebkowska had contracted that Islamic marriage.
43. Mr Lindsay’s submission was, instead, that the appellant had continued to be in a relationship with his wife throughout the time that he was in the UK; that the submission of the Divorce Deed in 2009 had been designed to mislead the respondent about that ongoing relationship; and that the appellant had concealed a material fact (viz, the ongoing existence of his relationship with his wife) from the Secretary of State throughout his dealings with her. Ultimately, therefore, the single question of fact which underpins all of these allegations is the nature of the appellant’s relationship with his wife from his entry to the UK onwards.
44. The judge in the FtT erred in applying the civil standard of proof to the initial, evidential burdens on the parties. As Mr Solomon noted in his grounds of appeal to the Upper Tribunal, it is well established that the initial evidential burdens are comparatively modest. As Beatson LJ explained in Shehzad & Chowdhury v SSHD, what must be shown at these stages is that the respondent had prima facie evidence of deception and then that the appellant has a plausible, innocent answer to that evidence.
45. With very little hesitation, I come to the conclusion that the respondent had before her prima facie evidence of fraud, false representation or concealment of a material fact. The appellant obtained a residence card and then permanent residence in reliance on a relationship with a Polish national in the United Kingdom. That relationship was said to be a durable one and the appellant relied in 2009 upon the Divorce Deed as evidence of the durability of his relationship with Ms Lebkowska. The fact that he had a fourth child with his wife in 2011, at which time he was supposedly in a committed relationship with another woman in the UK, provides prima facie evidence of deception in his 2009 application and the concealment of a material fact in his subsequent application for permanent residence.
46. The comparatively modest evidential burden then falls on the appellant to provide a plausible innocent explanation. Mr Solomon submits that he is able to provide such an explanation. He submits that the appellant’s account of a one-night stand with his wife and of their relationship rekindling after the demise of his relationship with Ms Lebkowska is basically plausible and that it is supported by the consistent account given by the appellant and his witnesses, his good immigration history and lack of criminal convictions and character references from people of standing. I accept that submission, and accept that the appellant has adduced sufficient evidence to discharge the evidential burden upon him. Ultimately, therefore, what is required is a holistic evaluation of all of the evidence to decide whether the respondent has discharged the legal burden of proving the allegations I have summarised above.
47. In considering the respondent’s allegations, I do not lose sight of a number of matters. I recognise, firstly, that the consequences of a finding of dishonesty are serious and that it is for the respondent to adduce cogent evidence of the same, albeit that the standard of proof remains the civil standard. I note the character references adduced by the appellant. I will not rehearse the contents of those references, since the contents are similar, although I note that they have been produced by local councillors and a doctor, amongst other people. One such reference was provided by Zafar Khan, a retired university lecturer, who commented that it would be ‘out of character for Mr Ahmed to commit fraud.’ It is also relevant to note that the appellant satisfied the respondent on two occasions that he was in a genuine and durable relationship with Ms Lebkowska. In doing so, it is reasonable to assume that he was able to produce various types of evidence about that relationship, probably including evidence of cohabitation in the United Kingdom.
48. I also take careful account of Mr Solomon’s submission that the appellant, his brother and his brother-in-law gave consistent evidence about the breakdown and reconciliation of the relationship between the appellant and his wife. In most respects, that submission is correct. In two important respects, however, their evidence was inconsistent.
49. The appellant, his brother and his brother-in-law were each asked when the appellant’s wife had moved out of his family home. The appellant said that she had been unhappy about his decision to travel to the UK and that she had returned to her parents’ house about two or three months after he had left Pakistan. Given that the appellant left Pakistan in March 2006, his evidence was therefore that she left the family home in around May or June 2006.
50. The appellant’s brother stated that he had come to the UK in May 2008 and that the appellant’s wife had moved out of their family home ‘a year before then’, which would have placed her departure in May 2007.
51. Asked about that period in his sister’s life, the appellant’s brother-in-law stated that he was living in the UK but that he had been in regular contact with his sister. He had collected the appellant from the airport when he arrived in this country and had assisted him thereafter. The appellant’s brother-in-law said that his sister had subsequently told him about the appellant’s extra-marital affair and that she had decided to divorce the appellant as a result. She had separated from the appellant ‘about a year or so after’ the appellant had come to the United Kingdom. In common with the appellant’s brother, therefore, the appellant’s brother-in-law timed her departure from the family home in the middle of 2007.
52. The significance of these different timings will already be apparent from [3] above. It is quite clear that the appellant’s wife was pregnant when he came to the United Kingdom in March 2006. On the appellant’s account, she left his family home before she gave birth to their third child, Syeda, in October 2006. On the account of the appellant’s brother and brother-in-law, however, she left the family home some months after Syeda was born.
53. The evidence also reveals an inconsistency in the reason that the appellant’s wife left the matrimonial home and returned to her parents. In her initial witness statement, dated 27 April 2019, she gave evidence which accorded with the appellant’s evidence before me: she had become disillusioned with the relationship when the appellant left for the UK and it was this, and only this, which had prompted her leaving the matrimonial home in 2006. When the appellant’s brother-in-law gave evidence, he was also asked why his sister had left the matrimonial home and he said that her decision had been prompted, firstly, by her disillusionment over the appellant’s decision to come to the UK but that ‘the main reason’ was his relationship with another woman. The difficulty with that evidence is that the appellant and his wife both state in their statements that she only became aware of the affair in 2008, long after she is said to have moved out of the family home. It is significant, therefore, that the appellant’s brother-in-law stated that the main reason for her departure was the affair, whereas she and the appellant maintain that the affair was unknown to her when she decided to move out.
54. In considering these inconsistencies, I bear in mind the observations made by senior judges about the fallibility of memory and the necessity for caution before drawing adverse inferences from the absence of total consistency. David Lock QC, sitting as a Deputy Judge of the High Court, cited relevant observations of Leggatt J and Warby J, as they then were, in an impressive review of the relevant authorities in R (TVN) v SSHD [2021] EWHC 3019 (Admin). I have taken account of the principles summarised at [22]-[24] of the Deputy Judge’s decision.
55. I also recognise that these events took place some fifteen years or so before the resumed hearing and that memories of events which took place such a long time ago may differ but I was struck by the close connection of the appellant, his brother and his brother-in-law to these events. There is a significant difference, in my judgment, between a woman leaving the matrimonial home with two young children and a woman leaving the matrimonial home with two young children and a baby. There is also a significant difference between the appellant’s wife deciding to leave the family home because she was disillusioned by her husband’s decision to go to the UK and her deciding to leave the family home because he was having an affair. Given the significance of these events to both sides of the family, and given the centrality of this period to the matters in issue in this appeal, I find these inconsistencies damaging to the credibility of the appellant’s account.
56. I also attach weight to the other significant point pursued by Mr Lindsay in cross-examination. The appellant sought to explain what had happened on the night that Syeda was conceived in the following way. He said that he had believed that he and his wife were divorced after she had pronounced talaq in 2008. He had been confirmed in that belief when he and Ms Lebkowska had visited an Imam in the UK together in 2009. He had been relieved by the divorce and there had been ‘no real relationship’ between him and his wife between 2006 and 2017. In his witness statement, however, he described the events in early 2011:
[25] In 2011, whilst in Pakistan, Farhat and I met and without intention or forethought we had a sexual encounter. She instigated it. Farhat and I began to communicate in relation to dropping and picking up the children. On one occasion my younger daughter fell ill when she was with me. Farhat came to look after our daughter and stayed the night. She spoke to me and then later that night we had a sexual intercourse. I slept with her as I was away from Weronika and yearned for sex. Farhat had not had sex for many years, and she consented to have sex with me. That sexual intercourse was a one-night stand for me.
57. Mr Lindsay challenged the appellant on this account, suggesting that he and his wife would not have spent the night together if they genuinely believed that they were divorced. The appellant said that his daughter had been ill and that his wife had come to his house in order to care for her. Mr Lindsay suggested that the only ‘appropriate’ thing to do, in the circumstances, would have been for the appellant’s wife to take the children home with her. The appellant stuck to his guns, stating that the child had not been very well and it was night time.
58. This evidence is to be considered in its proper context. The first part of that context is provided by the claimed deterioration of the relationship between the appellant and his wife and the reasons given for that deterioration. She is said to have learned, less than three years previously, that he had been having an affair with another woman in the UK. She was so disgusted and upset by this that she pronounced talaq and believed herself to be divorced from the appellant. The second part of the context is geographical, and is taken from [7] of her appeal statement, where she states that the distance between the two houses was only 200 yards. The third part of the context is societal, and may be taken from the country guidance decisions in SM (lone women – ostracism) Pakistan [2016] UKUT 67 (IAC) and KA & Ors (domestic violence - risk on return) Pakistan CG [2010] UKUT 216 (IAC). In the first decision, the Upper Tribunal noted, amongst other matters, the way in which women in rural Pakistan (which is where the events in question took place) are treated as chattels of the male head of their household. There is also reference to the role of gossip about the affairs of single women in rural Pakistan. In the second decision, the Upper Tribunal noted, amongst other matters, that sexual intercourse is illegal in Pakistan except between a husband and wife.
59. When considered against this backdrop, I found the account of the events in early 2011 to be wholly unconvincing. Having listed to the appellant give evidence about the reason that his wife was said to have initiated a ‘one night stand’ with him three years or so after she believed herself to have divorced him on account of adultery, I found it wholly incredible. I do not accept that she would have initiated any sort of sexual contact with the appellant if she had been scorned in the manner suggested, thereby exposing herself to potential difficulties at the hands of her own family or the authorities. People do obviously engage in such behaviour on occasion but I do not consider the account given by this appellant to be remotely plausible when considered through the spectacles provided by the country information: Y v SSHD [2006] EWCA Civ 1223 refers, at [25]-[26].
60. Drawing these threads together, I reject the appellant’s account of the events in 2011. I find that he and his wife had consensual sexual intercourse when he returned to Pakistan in 2011, not as a ‘one-night stand’, as suggested, but pursuant to a relationship which had subsisted after his relocation to the UK in 2006. I do not accept that the appellant came to the UK without his wife’s consent in 2006, thereby bringing about the demise of their relationship. I find, instead, that Mr Lindsay was correct when he put it to the appellant that the plan had ‘all along’ been for the appellant to establish himself permanently in the UK and for him to bring his family to this country.
61. I therefore find that the respondent had discharged the burden upon her of establishing that the appellant concealed a material fact (his ongoing relationship with his wife) when he made his applications for a residence card and for a permanent residence card. Those applications required the appellant to have been or to have continued in a durable relationship with Ms Lebkowska and the fact that he was in a committed relationship with his wife was likely, on any proper view, to have been a material consideration in the respondent’s assessment of those applications.
62. I have not lost sight of an argument raised by Mr Solomon in the FtT and before me about the materiality of the appellant’s relationship with his wife to the consideration of the appellant’s applications under the EEA Regulations. In summary, the point he makes is that neither the Directive nor the Regulations required a previous marriage to have permanently broken down and that the subsistence of the marriage would not necessarily have been fatal to the submission that the appellant was in a durable relationship with Ms Lebkowska. On the facts as I have found them to be, that argument cannot prosper. In my judgment, the appellant was in an ongoing, committed, romantic relationship with his wife at all material times. It was that fact – and not the mere existence of a continuing marriage in law – which was directly material to the respondent’s evaluation of the applications which were made under the EEA Regulations. Had the appellant disclosed to the respondent the true state of his relationship with his wife, it is difficult to see how she could have concluded that he was nevertheless in a durable relationship with Ms Lebkowska.
63. I also find that the Divorce Deed was produced for reasons other than those given by the appellant and his wife. The appellant would have declared in his application for entry clearance as a student that he was married with children and he would have appreciated the need to draw a line under that relationship if he was to stand any realistic chance of securing a residence card. It was for that reason, I find, that the Divorce Deed came into existence, and not because the appellant’s wife was upset by his decision to come to this country or by anything he had done since his arrival. Whilst there is no basis upon which I could conclude that the Divorce Deed is a forged document, therefore, I find that it is a document which was brought into existence in furtherance of a lie about the state of the appellant’s relationship with his wife. To that extent, therefore, I find that the appellant knowingly misled the respondent by the submission of that document with the application in 2009. To the extent that the appellant maintains in his statement that he was unaware that the document was to be submitted in support of the residence card application, I do not accept that to be the case, and I find that it only came into existence so that it could be provided to the respondent in furtherance of a falsehood.
64. Thus far, I have concentrated on the appellant’s dealings with the respondent when he made his applications for a residence card and for a permanent residence card. I have found that there was deception and/or the concealment of material information in those applications. In order for the condition precedent in s40(3) of the BNA 1981 to be satisfied, however, what the respondent must establish is not that the appellant was deceitful at some point in the past but that the impugned behaviour was directly material to the decision to grant citizenship: Sleiman (deprivation of citizenship; conduct: Lebanon) [2017] UKUT 367 (IAC). The appellant’s application for naturalisation did not rest upon his relationship with an EEA national. It rested upon him having completed the requisite period of lawful residence in the UK; his good character; his knowledge of life in the UK and the English language; and his intention to make the UK his home: paragraph 1 of schedule 1 to the BNA 1981 refers.
65. It is quite extraordinary that I have not been provided with a copy of the appellant’s application for naturalisation, which I know from previous cases would have been made on Form AN. I very much doubt that there was any reference on that form to the appellant having been in a relationship with Ms Lebkowska. It would have been clear from that form that the appellant had completed the requisite period of residence in the UK and that he was able to satisfy the first requirement in paragraph 1 of schedule 1 and it would have been unnecessary to ask for any further information about the basis upon which that status was acquired. How, therefore, can it be said that the impugned behaviour was directly material to the decision to grant the application for naturalisation?
66. The answer to that question comes from the requirement in paragraph 1(1)(b) of schedule 1 to the BNA 1981, that the applicant for naturalisation be of good character. It was not said in Sleiman that the deceit practised by that appellant (as to his date of birth) would have led to the rejection of his naturalisation application on grounds of bad character. That submission is, however, made by the respondent before me, as is clear from [21] of her notice of decision. In that paragraph, she cites sections 1.3 and 9.3 of Chapter 18 of the Nationality Instructions. At the time of the appellant’s application for naturalisation, those sections were in the following terms:
[1.3] The decision maker will not normally consider a person to be of good character if there is information to suggest they have been deliberately dishonest or deceptive in their dealings with UK Government.
[9.3] The decision maker will normally refuse an application where there is evidence that a person has employed deception either during the citizenship process or in a previous immigration application. It is irrelevant whether the deception was material to the grant of leave or not.
67. I note also what is said at paragraph 3.15 of the respondent’s Guide AN, reproduced at Annex H of her bundle before me:
You must say whether you have been involved in anything which might indicate that you are not of good character. You must give information about any of these activities no matter how long ago it was. Checks will be made in all cases and your application may fail and your fee will not be fully refunded if you make an untruthful declaration. If you are in any doubt about whether you have done something or it has been alleged that you have done something which might lead us to think that you are not of good character you should say so.
You must tell us if you have practised deception in your dealing with the Home Office or other government departments (for example by providing false information or fraudulent documents). This will be taken into account in considering whether you meet the good character requirement. If your application is refused, and there is clear evidence of the deception, any future application made within 10 years is unlikely to be successful.
68. Considering these sections of the respondent’s policy, I come to the clear conclusion that the respondent would in all likelihood have refused the application for naturalisation if she had known about the appellant’s dishonest conduct in his applications for a residence card and a permanent residence card. In concealing that past behaviour, therefore, it is clear that the appellant’s citizenship was obtained by the concealment of a material fact.
69. For present purposes, I have proceeded on the basis that Mr Solomon is correct in his submission that Begum v SIAC has not altered the correct approach to the consideration of the condition precedent question posed by s40(3) of the BNA 1981. Applying the approach in KV v SSHD, therefore, I find that the respondent has established to the balance of probabilities that the appellant obtained his British citizenship by concealment of a material fact and that the condition precedent question must be answered in the respondent’s favour.
70. For present purposes, I proceed on the same basis as regards the next question, of whether the respondent’s discretion to deprive the appellant of his British citizenship should have been exercised differently. I do so, again, for the reason that it would make no difference to my resolution of that question whether I applied a Wednesbury-style review of the respondent’s decision or whether I considered that question for myself, in accordance with the fourth of Leggat LJ’s steps in KV v SSHD. In order to explain why I have reached that conclusion I should firstly set out what I consider to be the reasonably foreseeable consequences of the appellant being deprived of his British citizenship, excluding the issue of removal. That approach accords with Laci v SSHD [2021] EWCA Civ 769; [2021] 4 WLR 86 and Aziz v SSHD [2018] EWCA Civ 1884; [2019] Imm AR 264, by which I remain bound.
71. In his first skeleton argument and in his able oral submissions, Mr Solomon submits that the reasonably foreseeable consequences of deprivation in this case would be that the appellant would be in ‘limbo’, waiting for the respondent to decide whether to remove him and exposed to the ‘hostile environment’ until she took any such decision. Mr Solomon notes, in particular, that the appellant will be unable to work or to rent property during that period. I was not specifically referred to what was said by Underhill LJ at [56]-[58] of Laci v SSHD but, like the judge in the FtT in that case, I have the statutory regime and the resulting ‘hostile environment’ firmly in mind. I note, in particular, that Underhill LJ went on, at [70], to accept in that case that the appellant’s loss of employment as a result of the deprivation decision would be a ‘serious matter’. Like the appellant in Laci, this appellant has been employed for some years and has settled employment which will come to an end as a result of a negative decision in this appeal. I also accept that he will be unable to remain in his rented accommodation as a result of such a decision.
72. It is also submitted by Mr Solomon that the decision to deprive the appellant of his British citizenship would be in breach of Article 8 ECHR. In this connection he also draws attention to the ‘limbo’ arguments and he submits that the decision to deprive is a disproportionate measure when proper account is taken of the passage of time since the conduct in question, the appellant’s otherwise good character and employment record and his integration to this country, as evidenced by the various testimonials to which I have referred above. I take each of those matters into account in considering whether the respondent should have exercised her discretion differently and whether, ultimately, whether the respondent’s decision is disproportionate in Article 8 ECHR terms.
73. Against the consequences for the appellant, I weigh the public interest in removing British citizenship from those who obtained it illegitimately. In considering that question, it is necessary to set out two further passages from the authorities I have already cited above. The first is what was said by Leggatt LJ at [19] of KV v SSHD:
Where, as in the present case, it is established not only that deception was used but that, without it, an application for naturalisation as a citizen would not have been granted, it seems to me that it will be an unusual case in which the applicant can legitimately complain of the withdrawal of the rights that he acquired as a result of naturalisation. That is because the withdrawal of those rights does no more than place the person concerned in the same position as if he had not been fraudulent and had acted honestly in making the application. The position may be different, however, in a case where, as a result of naturalisation, the individual has lost other rights previously enjoyed which will not or may not be restored if he is now deprived of his citizenship. In such a case depriving the person of citizenship will not simply return him to the status quo ante but will place him in a worse position than if he had not been granted citizenship in the first place.
74. The second is what was said by Underhill LJ at [37] of Laci v SSHD, in which he considered the ongoing application of what had been said in BA in light of Aziz v SSHD and KV v SSHD. Underhill LJ said this:
As to point (4) in BA, the broad thrust of what the UT says is that only exceptionally will it be right for a person who has obtained British citizenship by (in short) deception to be allowed to retain it. In my view that is entirely correct: the reason is self-evident. It is in line with what Leggatt LJ says in the first half of para. 19 of his judgment in KV. I note that he uses the term "unusual" rather than "exceptional". That may be because the Courts have been wary of treating "exceptionality" as a test as such, but I do not think that there is a problem here: the reason why such an outcome will be exceptional is that it will be unusual for a migrant to be able to mount a sufficiently compelling case to justify their retaining an advantage that they should never have obtained in the first place. The UT was also right to recognise that the necessary assessment arises both as a matter of common law and (potentially) in relation to Convention rights. The precise formulation, however, may not be quite in line with what is said in KV and Aziz; and now see para. 40 below.
75. At [73] of Laci, Underhill LJ summarised the effect of these dicta in the following way: “In all ordinary cases deprivation of citizenship will indeed be the inevitable outcome of a finding that it was obtained by deceit.”
76. Taking account of the public interest as expressed in these cases, I see no proper basis upon which I could conclude either that the respondent’s discretion should have been exercised differently or that the decision is disproportionate under Article 8 ECHR. The appellant obtained a residence card and a permanent residence card by dishonest means and he failed to alert the respondent to his previous dishonesty when he came to make his application for naturalisation. I have found that his intention, when he came to this country, was to obtain a settled status and then to bring his wife and children to this country. His dishonest conduct, pursuant to that ultimate goal, lasted for more than a decade and there is a very clear public interest in depriving him of the citizenship which he obtained in that way.
77. This is not a case such as Laci, in which there was an extraordinary delay on the part of the respondent; she took prompt action to deprive the appellant of his British citizenship after his wife and children made their applications for entry clearance. This is not a case in which there is any suggestion that the appellant will be rendered stateless by the decision to deprive him of citizenship. And I note that the respondent gave similar indications at [32] of the decision in this case to those she gave in Hysaj [2020] UKUT 128 (IAC), as regards the amount of time in which the appellant might expect to remain in ‘limbo’ after a negative decision on this appeal. I have no reason to doubt those timescales and I proceed on the basis that any period of limbo will be a matter of only a few weeks, during which the appellant can call upon his extensive network of contacts in the UK to support him.
78. Taking full account of the reasonably foreseeable consequences of deprivation and weighing those consequences against the public interest in that course, I conclude that the respondent should not have exercised her discretion differently and that her decision is not in breach of Article 8 ECHR. The public interest amply justifies the decision to deprive the appellant of his British citizenship. The appeal will accordingly be dismissed.

Notice of decision
The First-tier Tribunal erred in law and its decision has been set aside by consent. I remake the decision on the appeal by dismissing it on all grounds.
I make no direction as to anonymity.

M.J.Blundell
Judge of the Upper Tribunal
Immigration and Asylum Chamber

5 January 2022