Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/19794/2019

THE IMMIGRATION ACTS

Decided without a Hearing
Decision & Reasons Promulgated

On the 21 July 2022

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR
UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

hafiz ullah
(anonymity directioN NOT MADE)
Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DECISION AND REASONS
Introduction
1. This is the re-making of the decision in Mr Ullah’s (“the appellant”) appeal following the error of law decision promulgated on 9 March 2022, by which the Upper Tribunal (Upper Tribunal Judges Norton-Taylor and O’Callaghan) concluded that the First-tier Tribunal had materially erred in law when allowing his appeal against the Secretary of State’s (“the respondent”) decision to deprive him of his British citizenship under the British Nationality Act 1981 (“the 1981 Act”), section 40(3) of which provides that:
“(3) The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that registration or naturalisation was obtained by means of- -
(a) fraud,
(b) false representation, or
(c) concealment of a material fact.”
2. The error of law decision is annexed to this decision and the two should be read together.
3. The appellant continues to be represented by Chauhan Solicitors.
4. The following background is taken from paragraphs 3-13 of the error of law decision. The appellant was born in Pakistan and came to the United Kingdom on a work permit visa in April 2004. He was granted indefinite leave to remain on 4 March 2009. On 27 June 2012, the appellant applied for naturalisation as a British citizen, confirming at section 3.12 of Form AN that he had not “engaged in any other activities which might indicate that [he] may not be considered a person of good character.”
5. The application was granted on 18 of September 2012 and a certificate of naturalisation issued.
6. On 16 October 2012, the appellant was arrested on suspicion of:
(a) conspiracy to defraud;
(b) fraud, contrary to section 2 of the Fraud Act 2006; and
(c) possession of criminal property, contrary to section 329(1) of the Proceeds of Crime Act 2002.
7. Charging decisions were made in respect of the appellant and other individuals and an indictment drawn up. Count 5 of the indictment related to the possession of criminal property and read as follows:
“Particulars of offence
Hafiz Ullah between the 1st day of January 2010 and the 5th day of March 2012 possessed criminal property, namely £80,532.35 paid into his HBOS Account […..] which he knew or suspected was criminal property.”
8. When the matter reached trial, the appellant pleaded guilty to count 5. A not guilty plea was entered in respect of the charge of fraud and a verdict to that effect was to lie on file. No pleas were taken on the remaining charges and these were stayed.
9. For the offence of possession of criminal property, the appellant was sentenced on 18 April 2013 to 51 weeks’ imprisonment. He was released from prison in May 2013 and left the United Kingdom for Pakistan in December of that year.
10. In 2014, whilst the appellant was outside of the United Kingdom, a trial took place of five other individuals who had been charged with conspiring to defraud by reason of a large-scale operation to create false financial profiles in order to obtain leave to remain in the United Kingdom. The appellant was not a defendant in those proceedings, but the Sentencing Judge made express reference to the discovery of a ledger at the appellant’s home which contained details of payments connected to the conspiracy.
11. The respondent subsequently initiated deprivation action by issuing deprivation investigation letters on 3 March and 1 April 2016 (these letters were sent to the appellant’s last known addresses in the United Kingdom). The decision to deprive the appellant of his British citizenship was issued on 14 July 2016 and also sent to the last known address in the United Kingdom.
12. On 24 November 2019, the appellant returned to the United Kingdom. The respondent re-served the deprivation decision. The Appellant exercised his right of appeal pursuant to section 40A(1) of the 1981 Act.
13. In essence, the First-tier Tribunal found that the respondent failed to show that the appellant knew that his conduct between 2010 and 2012 was criminal in nature and that, as a consequence, the appellant had not practised deception when making his naturalisation application in June 2012.
14. This conclusion was legally flawed. In the circumstances of this case it is appropriate to set out the analysis contained within the error of law decision in full:
“26. It is undisputed that the Appellant pleaded guilty to the offence of possession of criminal property, pursuant to section 329(1) of the Proceeds of Crime Act 2002, which provides as follows:
“329 Acquisition, use and possession
(1) A person commits an offence if he—
(a) acquires criminal property;
(b) uses criminal property;
(c) has possession of criminal property.”
[Emphasis added]
27. For the purposes of the interpretation of section 329, section 340 of the 2002 Act states that:
“(3) Property is criminal property if—
(a) it constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and
(b) the alleged offender knows or suspects that it constitutes or represents such a benefit.”
[Emphasis added]
28. That the offence requires no more mens rea than suspicion was confirmed by the Court of Appeal in R v Gabriel [2006] EWCA Crim 229, at paragraph 26.
29. There has been no suggestion that the Appellant ever challenged the factual basis for his guilty plea (there was, for example, no Newton hearing), or that he made a formal complaint concerning any legal advice provided to him at the relevant time. There was no appeal against conviction. In light of this, the Appellant’s protestations of innocence contained within his witness statement of 4 September 2020 (which was adopted at the hearing before the judge) do him no credit, although this plays no material part in our considerations.
30. What was self-evidently of potential significance is the fact that the Appellant had pleaded guilty to an offence which involved him knowing, or at least suspecting, that he was in possession of criminal property during a lengthy period of time which pre-dated his application for naturalisation as a British citizen. That factual matrix had been clearly raised by the Respondent in her decision letter and was relied on by the Presenting Officer at the hearing. In our judgment the absence of cross-examination on this particular issue could not have excused the judge from specifically addressing it.
31. What is clear from [63]-[70] is that the judge failed to engage with, or at least provide adequate reasons in respect of, not simply the fact of the conviction (which did of course post-date the application and decision thereon), but the obvious implications of that conviction. The acceptance by the Appellant (by virtue of his guilty plea) to knowing or suspecting that he had been in possession of a significant amount of criminal property for an extended period of time between 2010 and 2012 was, on the face of it, highly relevant to his state of mind when he ticked the “no” box at section 3.12 of Form AN. If, having properly assessed the circumstances underlying the conviction, the judge nonetheless took the view that these were insufficient to affect the Appellant’s honesty, clearly expressed reasons were required.
32. In the event, there was neither a proper analysis, nor adequate reasons. This is particularly so in respect of the judge’s findings that: (a) there was an “evidential gap” in the Respondent’s case; (b) it had not been established that the Appellant knew his conduct between 2010 and 2012 had been criminal; and (c) that his conduct might count against the “good character” requirement in the naturalisation application. As regards the first point, the reality was that there was no such “gap” in the evidence: the conviction and relevant supporting documentation spoke for itself. In terms of the second, the mens rea of the offence went to the issue of knowledge, although of course mere suspicion was sufficient. Finally, any evidence provided by the Appellant as to the relevance of past conduct to “good character” would have had to be assessed in the context of that conduct and, in light of what we have already said, this had not been properly analysed or reasoned.
33. Mr Malik’s valiant attempts to save the judge’s decision rather lost any force they might have had during the course of the hearing as the ingredients of the offence were discussed and their potential implications became clearer. Ultimately, the Respondent’s case before the judge had not rested on the conviction itself, but rather the potential impact of its underlying factual and legal basis on the Appellant’s state of mind.
34. We are satisfied that the judge erred by failing to give adequate reasons in the context of the evidence before him and the way in which the Respondent had put her case.
35. In a sense, what we have already said goes to address the second element of the Respondent’s challenge relating to the test set out in Ivey. By failing to provide adequate reasons in respect of the implications of the conviction, the judge also failed to properly address the objective limb of the test for dishonesty.
36. We do not need to base our error of law decision on the Begum issue. Having said that, it is clear that the judge failed to apply the correct approach to section 40(3).
37. In light of the foregoing, the judge’s decision must be set aside. The basis on which we do so means that none of the judge’s findings can be preserved.”
15. Our decision also noted the parties’ acceptance that an applicant for naturalisation as a British citizen was under a continuing duty to inform the respondent about any changes in their circumstances whilst their application was pending. In the event, that position pre-empted the Upper Tribunal’s conclusion to the same effect in Waile (deprivation: self-incrimination: anonymity) [2022] UKUT 17 (IAC).

Re-making the decision without hearing: rule 34
16. Prior to the conclusion of the last hearing, the parties were invited to make submissions on the method of disposal should the First-tier Tribunal’s decision be set aside. Both submitted that a re-making of the decision in the appellant’s appeal could fairly be made by way of written submissions only. We agreed with that position on the basis that no further evidence was required in order for us to make any relevant findings of fact (indeed, the core factual background was largely uncontroversial) and that all arguments on the law could be committed to writing.
17. Directions were issued for the parties to file and serve written submissions on all relevant issues. In the event, the respondent’s detailed submissions were received on 1 April 2022, two days beyond the stated deadline. In all the circumstances, we have concluded that it is in the interests of justice to extend time for this minimal breach of the direction. The appellant’s written submissions arrived on 19 April 2022, within the timeframe permitted.
18. We considered afresh whether it remained fair to undertake the re-making decision without a further hearing, pursuant to rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008. For the following reasons, we have concluded that it is still appropriate to determine this appeal without a hearing.
19. First, the factual issues remain as they were previously. No attempt has been made to provide further evidence (we make it clear that there was no suggestion at the error of law stage that such evidence might be forthcoming).
20. Second, the agreed position adopted by the parties at the error of law stage has not changed. Their respective written submissions do not include a request for a further hearing.
21. Third, whilst there have been developments in the legal landscape relating to deprivation of citizenship, there has been a fair opportunity for the parties to address these in their written submissions and we have not deemed it necessary to seek any further responses.
22. Fourth, having had specific regard to the guidance set out by the Supreme Court in Osborn v The Parole Board [2013] UKSC 61, [2014] AC 1115, fairness does not, in the particular circumstances of this case, require a hearing.

The appellant’s written submissions
23. The appellant’s submissions (not drafted by Mr Malik QC) seek to rely on the grounds of appeal lodged with the First-tier Tribunal when the challenge to the respondent’s decision was first instigated (“the grounds of appeal”), together with the skeleton argument provided to the judge at first instance (“the first skeleton argument”). In addition, the submissions asserted that:
(a) The respondent’s decision is procedurally defective and unfair, and thereby unlawful;
(b) The respondent’s decision is not in accordance with the law;
(c) In any event, the respondent erred in failing to exercise discretion in the appellant’s favour;
(d) The appellant’s position as to whether Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238 (IAC) is correctly decided is reserved. If Ciceri was correctly decided, the respondent’s decision is vitiated by public law errors.
24. As regards (a), paragraph 11 of the first skeleton argument asserted that:
“… the Secretary of State was obliged to give prior notice to the Appellant and disclose the case against him by giving him an opportunity to make representations before making the decision under appeal. The Secretary of State’s decision was made without any prior notice. Despite knowing that her decision would be significantly detrimental to the Appellant, the Secretary of State gave him no opportunity to make representations. This was unfair and unlawful.”
In other words, there should have been a form of “minded-to” process.

The respondent’s written submissions
25. Having referred to a number of relevant authorities, including in particular the Supreme Court’s judgment in Begum [2021] UKSC 7, [2021] Imm AR 879, in essence the respondent submitted that the underlying facts of the present case clearly show that the respondent acted rationally when concluding that the appellant had known of his own criminal conduct when completing the naturalisation application in June 2012. It followed that he had put forward a materially false representation, or had concealed a material fact, when making that application and the respondent was rationally entitled to conclude accordingly.
26. In the absence of any relevant evidence, there was no arguable Article 8 issue in this appeal.
27. In response to the appellant’s fairness argument, the written submissions contend that the respondent was not required to have given him an opportunity to make representations prior to making the decision now under appeal. In particular, section 40(5) of the 1981 Act required only that the giving of notice specified that the respondent had decided to make the deprivation order, the reasons for that order, and the existence of a right of appeal arising under section 40A(1). Relying on what was said by the Court of Appeal in D4 [2022] EWCA Civ 33, at paragraph 53, it was said that the legislative provisions set out the relevant minimum safeguards and the appellant’s submissions involved reading in additional requirements to the legislative framework.

Findings of fact
28. The basic underlying facts are set out at paragraphs 4-12, above. In addition to these, we add the following, all of which is predicated on the basis that it is for the respondent to demonstrate that the appellant was dishonest.
29. On the evidence before us, we have no hesitation in finding that the appellant never challenged the factual basis for the guilty plea entered in respect of Count 5 of the indictment. There was, for example, no Newton hearing and there was no appeal against conviction.
30. We are satisfied that the appellant understood the nature of the charges against him and the consequences of pleading guilty to the offence under section 329(1) of the Proceeds of Crime Act 2002. We are satisfied that the appellant was legally represented during the criminal proceedings. There is no evidence to even suggest that the appellant was in any way dissatisfied with the legal advice received and there is certainly no evidence of any formal complaint ever having been made.
31. Whilst in his witness statement of September 2020 the appellant continued to profess his innocence in all respects, we find it to be much more likely than not that he pleaded guilty to the relevant count on the indictment because he accepted that he had held the mens rea of knowing, or at least suspecting, that the funds in his possession during the period in question constituted or represented a benefit from criminal conduct. It is important to note that the knowledge or suspicion related not to the appellant’s state of mind at the time of the guilty plea, but when the conduct was occurring, namely between January 2010 and March 2012.
32. We therefore find as a fact that the appellant did indeed know, or at least suspect, that he was concerned in criminal conduct, namely the possession of criminal property in the sum of £80,532.35, between 1 January 2010 and 5 March 2012, and that he held that knowledge or suspicion at that time. It follows that the appellant’s evidence before the First-tier Tribunal to the effect that he had not committed any crime before naturalisation decision was made was, we find, untrue.
33. We find that the appellant was aware of the contents of his naturalisation application (Form AN) when it was completed and signed by him on 31 May 2012. We have not been referred to any evidence suggesting the contrary and there is nothing which remotely indicates that there was any lack of comprehension or misunderstanding at that stage.
34. We also find that the answer to question 3.12 of Form AN (“Have you engaged in any other activities which might indicate that you may not be considered a person of good character?”) was “No” and that this was stated with the appellant’s full knowledge and agreement. Again, there is no evidence pointing to a contrary conclusion. Indeed, it has been the appellant’s case throughout that the answer was truthful because, in his view, he had not been involved in any criminal conduct. We have already found that view was not simply mistaken, but untruthful.
35. It follows inexorably from the foregoing that the appellant’s answer to question 3.12 was false and concealed the fact that he had been concerned in criminal conduct for a considerable period between 2010 and a couple of months before the application form was submitted to the respondent.
36. With all of the above in mind, we are satisfied that the respondent has demonstrated that the appellant was dishonest when he asserted, by way of the answer to question 3.12, that there were no other matters going to his “good character”. At the time the form was completed and then submitted, the appellant already knew or suspected that he had engaged in activities which, on any rational view, “might indicate” that he “may not” be considered a person of “good character”. The fact that the criminal proceedings were not instigated until after the application was made and British citizenship secured is beside the point for the simple reason that the guilty plea merely confirmed the state of mind held during the relevant period between 2010 and 2012.
37. Turning to other matters, there has never been any substantial evidence (or indeed submissions) as to the existence of meaningful private and/or family life in the United Kingdom. The appellant’s movements around the world over the course of time clearly point against there being relevant ties here. Having reviewed the materials before us, we note that the First-tier Tribunal did not engage in any assessment of Article 8 or any relevant evidence pertaining thereto. The appellant’s witness statement of September 2020 says nothing of any substance.
38. We find that the appellant has no partner or children in this country, nor has he established any strong community or other ties. There is no evidence of any material health concerns, and we find that none exist.
39. For the avoidance of any doubt, it is common ground that the appellant is, in addition to currently being a British citizen, a Pakistani citizen, or is at least entitled to such citizenship. No question of statelessness has ever been raised and we find that he would not be stateless if deprived of his British citizenship.
40. Finally, we address the evidence on the giving of notice of the respondent’s decision to deprive the appellant of his British citizenship. We are satisfied that the respondent sent the decision by post to the appellant’s last known address in the United Kingdom on 14 July 2016. We are satisfied that, prior to this, the investigation letter had been served by post to that same address 1 April 2016.
41. After the appellant returned to the United Kingdom in November 2019 and was detained by the authorities in Belfast, he accepts that he was then re-served with the deprivation decision. We infer from the evidence that this was done in person.

Conclusions
42. The judgment in Begum undoubtedly altered the legal landscape in deprivation appeals. Paragraph 71 of the judgment provides:
“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.”
43. Whilst that case specifically concerned appeals brought against decisions under section 40(2) of the 1981 Act, subsequent authority establishes that the public law-focused approach as to the condition precedent issue applies equally in section 40(3) appeals: Ciceri. For our part, we regard that as correct as a matter of law and we adopt that approach in the present case. However, for the sake of completeness, we also consider the appellant’s case from the pre-Begum merits-based perspective.
44. For the reasons which follow, the appellant’s appeal must fail, whichever approach is applied.
45. The decision letter stated in terms at paragraph 10 that the chronology of events combined with the conviction on the specific charge in question meant that the appellant “had been involved in criminal acts prior to applying for British citizenship.” That conclusion was rationally supported by the evidence, as we have shown in our analysis, above. No relevant consideration was left out of account.
46. The required causal link between the dishonesty and the granting of citizenship was clearly expressed in paragraph 12 of the decision letter:
“In view of the fact that between the periods of January 2010 to March 2012, which was identified by the Court as the timeframe in which you were in possession of criminal property, if this fact had been no new application for British citizenship would not have succeeded. You would not have been deemed of good character in view of your activities with the immigration crime group.”
47. That conclusion was also rationally supported by the evidence.
48. In summary, the respondent was plainly entitled to conclude, on the evidence before her when the decision under challenge was made on 14 July 2016, that the appellant had dishonestly made false representations and/or concealed a material fact and that, as a consequence, his naturalisation as a British citizen was obtained by means of that dishonesty.
49. Further, on the totality of the evidence before us on appeal, the appellant does not come close to demonstrating irrationality in respect of the respondent’s conclusions on dishonesty and causation. In particular, his witness statement and protestations of innocence add nothing of any substance to his case.
50. It follows that the condition precedent under section 40(3) of the 1981 Act exists.
51. On the alternative scenario, in which we would undertake our own merits-based assessment of the evidence, the analysis of the evidence and our findings of fact set out previously leads to only one conclusion. The appellant knew or suspected at the material time (between January 2010 and March 2012) that he was engaged in criminal conduct. Despite that knowledge, he deliberately and dishonestly concealed the fact and put himself out as a person of ostensibly good character. It is plain to us that if his conduct had been disclosed, the respondent would not have, or at least would have been very unlikely to have, granted the naturalisation application.
52. The condition precedent would have been made out in any event.
53. As regards Article 8, there is very little to say. There is clearly no family life. At best, the appellant may have established a rather tenuous private life in the United Kingdom since his return in late 2019 (following an absence of approximately six years). It is difficult to see whether the deprivation of his British citizenship would even constitute an interference with that private life.
54. Assuming for present purposes that an interference would occur, the assessment of proportionality can have only one rational outcome. There is no meaningful evidence before us capable of demonstrating any significant detriment to the appellant were deprivation to take place. Nor indeed have any submissions been put forward suggesting otherwise. The appellant has Pakistani citizenship (or at least is entitled to it). There are no health issues. There are no financial or other meaningful ties which would be disrupted through deprivation. There have been no relevant delays by the respondent in this case: the appellant was convicted in April 2013 and the initial citizenship investigation letter was issued just under three years later. Further action followed shortly thereafter, and once the appellant returned in November 2019 the intention to deprive letter was re-served on him immediately.
55. In addition to there being nothing of substance on the appellant’s side of the balance sheet, the importance of maintaining the integrity of British nationality law in the face of dishonest conduct carries very significant weight in the respondent’s favour.
56. In light of the above, the appellant cannot succeed on Article 8 grounds.
57. Finally, there is the question of discretion. Whether we simply review the Secretary of State’s decision on public law grounds, or exercise discretion for ourselves, the outcome is precisely the same. The respondent has taken all matters put to her into account and we have not been presented with any argument that other relevant considerations have been left out of account. The respondent was plainly entitled to refuse to exercise discretion in the appellant’s favour, based on the materials before her at the time of the decision under appeal. There has been no subsequent evidence adduced, whether considered by the respondent or not, which could possibly undermine the rationality of that conclusion.
58. Similarly, had we considered all relevant factors for ourselves, we would have had no hesitation in concluding that discretion should not be exercised in the appellant’s favour.
59. Finally, we address the appellant’s argument on fairness. As set out above, it is his case that, even if matters of substance were determined against him, the respondent’s failure to have provided an opportunity to make representations prior to the decision under appeal being made, was procedurally unfair, thus rendering that decision unlawful and entitling him to succeed in his appeal on traditional public law grounds. As we understood it, the appellant’s case was not put on the basis that regulation 10(4) of the British Nationality (General) Regulations 2003, as amended, was unlawful or that the respondent had failed to comply with those Regulations in any way as regards the giving of notice of the decision under appeal. In essence, the appellant’s complaint relates to what the respondent failed to do prior to the giving of notice. Therefore, the central issues arising in D4 do not concern us.
60. In our judgment, there are two fundamental obstacles in the appellant’s path.
61. First, the statutory framework under the 1981 Act provides what Parliament regarded as the appropriate balance between the right of the individual affected by a decision to deprive on the one hand, and on the other, the public interest, with the respondent as custodian thereof.
62. Section 40(5) of the 1981 Act provides as follows:
“(5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying –
(a) that the Secretary of State has decided to make an order,
(b) the reasons for the order, and
(c) the person’s right of appeal under section 40A(1)…”
63. In the present case, the decision letter of 14 July 2016 clearly specified that the respondent decided to make deprivation order. The reasons contained in the letter were equally clear. The appellant’s right of appeal was set out in terms heading “Right of Appeal”. Thus, all the constituent elements of section 40(5) were complied with.
64. The appellant’s reliance on Fayed [1998] 1 WLR 763 and Bank Mellat [2013] UKSC 39, [2014] AC 700 does not assist him. What fairness requires is context-specific. Here, the respondent in fact sent investigation letters to two of the appellant’s last known addresses in the United Kingdom. That the appellant had failed to arrange for correspondence to be forwarded on to him overseas and/or had failed to provide the respondent with any overseas address was down to him.
65. In any event, section 40(5) of the 1981 Act provided for the appropriate procedural safeguards. There was no suggestion in D4 that an additional “minded-to” process was required as part of deprivation proceedings.
66. The second obstacle are the essential facts of this case. Even if there had been some form of procedural unfairness on the respondent’s part, the appellant accepted that he had engaged in criminal conduct between 2010 and 2012 by virtue of his guilty plea to the offence under section 329(1) of the Proceeds of Crime Act 2002. He also accepted that he ticked the “no” box at question 3.12 of the naturalisation application form. It is clear to us that no evidence provided by the appellant subsequent to the decision being made could conceivably have made any material difference to the respondent’s decision to deprive him of his British citizenship. In other words, the totality of the evidence before us, the appellant fails by a significant margin to demonstrate that anything he might have wished to put forward prior to the deprivation decision being made could have had a material impact on the conclusions reached in that decision. Whilst we exercise caution with regard to the rejection of a claim based on procedural fairness (which, for the purposes of our alternative conclusion we assume to be made out), there is no public law error which could have made any difference to the outcome.
67. The appellant’s appeal is accordingly dismissed.

Anonymity
68. No anonymity direction has been made in these proceedings thus far. There are no mandatory or other considerations which lead us to make a direction at this stage. The significant importance of open justice clearly warrants the identification of the appellant.

Notice of Decision
69. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law and that decision has been set aside.
70. We re-make the decision by dismissing the appeal.

Signed: H Norton-Taylor Date: 11 July 2022

Upper Tribunal Judge Norton-Taylor

TO THE RESPONDENT
FEE AWARD
We have dismissed the appeal and therefore there can be no fee award.

Signed: H Norton-Taylor Date: 11 July 2022

Upper Tribunal Judge Norton-Taylor

ANNEX: ERROR OF LAW DECISION

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/19794/2019

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 December 2021

…………………………………

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR
UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

HAFIZ ULLAH
(anonymity directioN NOT MADE)
Respondent

Representation:
For the Appellant: Mr D Clarke, Senior Home Office Presenting Officer
For the Respondent: Mr Z Malik, QC, instructed by Chauhan Solicitors

DECISION AND REASONS
Introduction
1. For ease of reference we shall refer to the parties as they were before the First-tier Tribunal. Thus, the Secretary of State is once again “the Respondent” and Mr Ullah is “the Appellant”.
2. The Respondent brings this against the decision of First-tier Tribunal Judge Latta (“the judge”), promulgated on 4 March 2021. By that decision, the judge allowed the Appellant’s appeal against the Respondent’s decision, dated 14 July 2016, to deprive him of his British nationality pursuant to section 40 of the British Nationality Act 1981 (“the 1981 Act”). Section 40(3) of the 1981 Act provides that:
“(3) The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that registration or naturalisation was obtained by means of- -
(a) fraud,
(b) false representation, or
(c) concealment of a material fact.”
3. The Appellant was born in Pakistan and came to the United Kingdom on a work permit visa in April 2004. He was granted indefinite leave to remain on 4 March 2009. On 27 June 2012, the Appellant applied for naturalisation as a British citizen, confirming at section 3.12 of Form AN that he had not “engaged in any other activities which might indicate that [he] may not be considered a person of good character.”
4. The application was granted on 18 of September 2012 and a certificate of naturalisation issued.
5. On 16 October 2012, the Appellant was arrested on suspicion of:
(a) conspiracy to defraud;
(b) fraud, contrary to section 2 of the Fraud Act 2006; and
(c) possession of criminal property, contrary to section 329(1) of the Proceeds of Crime Act 2002.
6. Charging decisions were made in respect of the Appellant and other individuals and an indictment drawn up. Count 5 of the indictment related to the possession of criminal property and read as follows:
“Particulars of offence
Hafiz Ullah between the 1st day of January 2010 and the 5th day of March 2012 possessed criminal property, namely £80,532.35 paid into his HBOS Account […..] which he knew or suspected was criminal property.”
7. When the matter reached trial, the Appellant pleaded guilty to count 5. A not guilty plea was entered in respect of the charge of fraud and a verdict to that effect was to lie on file. No pleas were taken on the remaining charges and these were stayed.
8. For the offence of possession of criminal property, the Appellant was sentenced on 18 April 2013 to 51 weeks’ imprisonment. He was released from prison in May 2013 and left the United Kingdom for Pakistan in December of that year.
9. In 2014, whilst the Appellant was outside of the United Kingdom, a trial took place of five other individuals who had been charged with conspiring to defraud by reason of a large-scale operation to create false financial profiles in order to obtain leave to remain in the United Kingdom. Whilst the Appellant was not a defendant in those proceedings, the Sentencing Judge made express reference to the discovery of a ledger at the Appellant’s home which contained details of payments connected to the conspiracy.
10. The Respondent subsequently initiated deprivation action by issuing deprivation investigation letters on 3 March and 1 April 2016 (these letters were sent to addresses in the United Kingdom). The decision to deprive the Appellant of his British citizenship was issued on 14 July 2016 and sent to the last known address of the Appellant in the United Kingdom.
11. On 24 November 2019, the Appellant returned to the United Kingdom. The Respondent re-served the relevant decision. The Appellant exercised his right of appeal pursuant to section 40A(1) of the 1981 Act.

The decision of the First-tier Tribunal
12. Having set out the background to the case, the judge made the following relevant findings:
“63. At the hearing, the Appellant gave evidence that he had provided the answer “no” at section 3 sub-section 3.12 as that was his “honest answer”. On the balance of probabilities, I accept his evidence on this point as being credible.
…
65. As pointed out by Mr Malik, the submission that he ticked the box as it was his honest answer was not challenged in cross-examination.
66. Instead of challenging this submission, Mr Lumb focused his cross-examination on the fact that the Appellant had been convicted of a criminal offence. His submission that this conviction related to activity prior to the completion of his application for British nationality, and therefore he must have known he was not of good character.
67. Mr Malik’s submission was that even if that submission is taken at its highest, then that does not establish that the Appellant was dishonest when completing his application for British nationality.
68. I agree with Mr Malik’s submission on this point. The established factual background is that the Appellant completed his application for British citizenship on the 27 June 2012, and became a British citizen on the 18 September 2012. The Appellant was not arrested until the 16 October 2012.
69. I am mindful of the guidance contained within the Nationality Instructions, and the requirement for there to be a deliberate act to deceive. In my view there appears to be an evidential gap in the submissions from Mr Lumb. Taking the case at its highest, and the fact the Appellant was convicted in 2013, doesn’t establish that the Appellant knew of the activity at the time of making his application.
70. In addition, even if the Appellant was aware of the activity, it has not been established that he knew that activity was criminal, or that it would go against his good character when he completed his application for British citizenship. Given that there is a requirement to show that there was intention to deceive, which involves an examination of the Appellant’s mental state, then these issues are crucial. In my view, the evidence put forward by the Secretary of State on this point does not meet the standard required…
71. I remind myself that the power contained within section 40(3) is restricted to where there is deception that has “motivated the grant of citizenship”. I do not find that it has been established that the Appellant completed his application for British nationality with the deliberate intention to deceive.
72. As a result, I find that it has not been established to the necessary standard that the Appellant used one of the means identified in subsections (a), (b) or (c) . I therefore find that the Respondent has not made out their case with reference to section 40(3) of the British Nationality Act 1981.”
13. The appeal was accordingly allowed.

The grounds of appeal and grant of permission
14. The grounds of appeal asserted that the judge failed to provide adequate reasons for his finding that the Appellant had provided an honest denial of any intention to deceive, given that the offending period relevant to the conviction for possession of criminal property pre-dated the application for naturalisation as a British citizen. Linked to this was the assertion that the judge had failed to consider whether an objective bystander would have regarded the Appellant’s conduct as dishonest, with reference to Ivey v Genting Casinos (UK) [2017] UKSC 67; [2018] AC 391, at paragraph 74.
15. Permission to appeal was granted by Upper Tribunal Judge Norton-Taylor on 21 May 2021.

The hearing
16. Mr Clarke and Mr Malik, QC, provided skeleton arguments in advance of the hearing, for which we are grateful.
17. The oral submissions are a matter of record we do not propose to set them out in detail here. A summary will suffice.
18. Mr Clarke submitted that the judge had simply failed to take account of the implications of the conviction, as that fact went to the Appellant’s state of mind when he completed Form AN. The Appellant had pleaded guilty to an offence, the actus reus and mens rea of which demonstrated that he either knew or suspected that his conduct in the relevant period between 2010 and 2012 had been criminal in nature. The Respondent had clearly raised this in her decision letter and the Presenting Officer had relied on the point at the hearing before the judge.
19. Mr Clarke also raised the issue of the effect of Begum v Special Immigration Appeals Commission and Secretary of State for the Home Department [2021] UKSC 7; [2021] Imm AR 879. The Supreme Court’s judgment was given four days after the hearing before the judge and pre-dated both the signing of his decision and its promulgation. Notwithstanding this, no reference was made to the judgment. Mr Clarke submitted that Begum changed the legal landscape in deprivation cases to a significant extent and the judge’s approach was flawed on this basis alone.
20. Mr Malik urged us to show restraint before concluding that the judge had erred. He had regard to all relevant evidence and had been entitled to regard the Appellant’s answers as honest. Count 5 of the indictment was not of itself evidence of criminal conduct prior to the naturalisation application. Mr Malik emphasised the absence of cross-examination of the Appellant as to the honesty of his assertion that he had been unaware of any criminal activity at the material time.
21. As to the application of Begum, Mr Malik argued that if the judge’s decision were to be set aside, the appeal would have to be allowed on the basis that the Respondent had failed to provide the Appellant with any notice of her intention to deprive him of his British citizenship prior to the decision being made. This rendered the decision procedurally unfair and thus unlawful.
22. The parties were agreed that an applicant was under continuing duty to inform the Respondent about any changes in their circumstances whilst an application for naturalisation as a British citizen was pending (in this regard we note that the Upper Tribunal has recently confirmed that the privilege against self-incrimination does not apply to the making and consideration of an application for naturalisation: Waile (deprivation: self-incrimination: anonymity) [2022] UKUT 17 (IAC)).
23. At the end of the hearing we reserved our decision.

Conclusions on error of law
24. We acknowledge the need for appropriate restraint before interfering with a decision of the First-tier Tribunal, having regard to numerous exhortations to this effect emanating from the Court of Appeal in recent years: see, for example, Lowe [2021] EWCA Civ 62, at paragraphs 29-31 and AA (Nigeria) [2020] EWCA Civ 1296; [2020] 4 WLR 145, at paragraph 41. We also remind ourselves that the judge’s decision must be read sensibly and holistically and that we are neither requiring every aspect of the evidence to have been addressed, nor that there be reasons for reasons.
25. Mr Malik put forward a commendable defence of the judge’s decision, but, for the reasons set out below, we conclude that there are clear errors of law in this case.
26. It is undisputed that the Appellant pleaded guilty to the offence of possession of criminal property, pursuant to section 329(1) of the Proceeds of Crime Act 2002, which provides as follows:
“329 Acquisition, use and possession
(1) A person commits an offence if he—
(a) acquires criminal property;
(b) uses criminal property;
(c) has possession of criminal property.”
[Emphasis added]
27. For the purposes of the interpretation of section 329, section 340 of the 2002 Act states that:
“(3) Property is criminal property if—
(a) it constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and
(b) the alleged offender knows or suspects that it constitutes or represents such a benefit.”
[Emphasis added]
28. That the offence requires no more mens rea than suspicion was confirmed by the Court of Appeal in R v Gabriel [2006] EWCA Crim 229, at paragraph 26.
29. There has been no suggestion that the Appellant ever challenged the factual basis for his guilty plea (there was, for example, no Newton hearing), or that he made a formal complaint concerning any legal advice provided to him at the relevant time. There was no appeal against conviction. In light of this, the Appellant’s protestations of innocence contained within his witness statement of 4 September 2020 (which was adopted at the hearing before the judge) do him no credit, although this plays no material part in our considerations.
30. What was self-evidently of potential significance is the fact that the Appellant had pleaded guilty to an offence which involved him knowing, or at least suspecting, that he was in possession of criminal property during a lengthy period of time which pre-dated his application for naturalisation as a British citizen. That factual matrix had been clearly raised by the Respondent in her decision letter and was relied on by the Presenting Officer at the hearing. In our judgment the absence of cross-examination on this particular issue could not have excused the judge from specifically addressing it.
31. What is clear from [63]-[70] is that the judge failed to engage with, or at least provide adequate reasons in respect of, not simply the fact of the conviction (which did of course post-date the application and decision thereon), but the obvious implications of that conviction. The acceptance by the Appellant (by virtue of his guilty plea) to knowing or suspecting that he had been in possession of a significant amount of criminal property for an extended period of time between 2010 and 2012 was, on the face of it, highly relevant to his state of mind when he ticked the “no” box at section 3.12 of Form AN. If, having properly assessed the circumstances underlying the conviction, the judge nonetheless took the view that these were insufficient to affect the Appellant’s honesty, clearly expressed reasons were required.
32. In the event, there was neither a proper analysis, nor adequate reasons. This is particularly so in respect of the judge’s findings that: (a) there was an “evidential gap” in the Respondent’s case; (b) it had not been established that the Appellant knew his conduct between 2010 and 2012 had been criminal; and (c) that his conduct might count against the “good character” requirement in the naturalisation application. As regards the first point, the reality was that there was no such “gap” in the evidence: the conviction and relevant supporting documentation spoke for itself. In terms of the second, the mens rea of the offence went to the issue of knowledge, although of course mere suspicion was sufficient. Finally, any evidence provided by the Appellant as to the relevance of past conduct to “good character” would have had to be assessed in the context of that conduct and, in light of what we have already said, this had not been properly analysed or reasoned.
33. Mr Malik’s valiant attempts to save the judge’s decision rather lost any force they might have had during the course of the hearing as the ingredients of the offence were discussed and their potential implications became clearer. Ultimately, the Respondent’s case before the judge had not rested on the conviction itself, but rather the potential impact of its underlying factual and legal basis on the Appellant’s state of mind.
34. We are satisfied that the judge erred by failing to give adequate reasons in the context of the evidence before him and the way in which the Respondent had put her case.
35. In a sense, what we have already said goes to address the second element of the Respondent’s challenge relating to the test set out in Ivey. By failing to provide adequate reasons in respect of the implications of the conviction, the judge also failed to properly address the objective limb of the test for dishonesty.
36. We do not need to base our error of law decision on the Begum issue. Having said that, it is clear that the judge failed to apply the correct approach to section 40(3).
37. In light of the foregoing, the judge’s decision must be set aside. The basis on which we do so means that none of the judge’s findings can be preserved.
Disposal
38. The representatives were of the view that the re-making of the decision could be made by way of written submissions only. In the particular circumstances of this case, we agree. No further evidence is required for us to make relevant findings of fact. We will have the benefit of recent decisions of the Upper Tribunal post-dating Begum, including Waile and Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238 (IAC).
39. We issue relevant directions to the parties, below.

Anonymity
40. The First-tier Tribunal made no anonymity direction and we were not asked to adopt a different position. There are no sound reasons for a direction in this case.

Notice of Decision
41. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
42. We exercise our discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 and set aside the decision of the First-tier Tribunal.
43. The decision in this appeal will be re-made by the Upper Tribunal in due course.

Directions to the parties
1. No later than 21 days after this error of law decision is sent out, the Respondent (Secretary of State) shall file and serve, in electronic and physical form, written submissions on all issues relevant to the re-making of the decision in this case;
2. No later than 42 days after this error of law decision is sent out, the Appellant shall file and serve, in electronic and physical form, written submissions in response;
3. With liberty to apply to amend these directions and any such application to be served on the other party.

Signed: H Norton-Taylor Date: 25 February 2022

Upper Tribunal Judge Norton-Taylor