IA/03121/2021

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The decision


IAC-AH-KRL-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-001530
DC/50056/2021(v) [IA/03121/2021]

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 11 May 2022
On the 11 July 2022


Before

THE HONOURABLE MRS JUSTICE HILL
UPPER TRIBUNAL JUDGE McWILLIAM

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Irfan Celaj
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant/SSHD: Mr D Clarke, Home Office Presenting Officer
For the Respondent: Ms A Smith, Counsel, instructed by Oliver Hasani Solicitors

DECISION AND REASONS
1. We shall refer to the Respondent as the Appellant as he was before the First-tier Tribunal.
2. The Appellant is a British citizen. His date of birth is 3 May 1982.
3. The SSHD was granted permission by First-tier Tribunal Judge Scott-Baker to appeal against the decision of the First-tier Tribunal (Judge Gibbs) to allow the Appellant’s appeal against the decision of the SSHD dated 2 March 2021 depriving him of British citizenship pursuant to s.40(3) of the British Nationality Act 1981 (“the 1981 Act”). The matter came before us to decide whether the First-tier Tribunal erred in law.
4. Mr Clarke attended remotely and Ms Smith in person. The matter had been listed for a face to face hearing; however, parties agreed to a hybrid hearing because Mr Clarke was unable to attend FH. At the start of the hearing Ms Smith conceded that the judge made a material error of law for the reasons identified in the SSHD’s grounds. We agreed with Ms Smith. We set aside the decision of the First-tier Tribunal (pursuant to s.12(2)(b) of the Tribunals, Courts and Enforcement Act 2007) to allow the Appellant’s appeal.
Error of Law Decision
5. We will briefly explain our reasons for finding a material error of law. The judge conducted a full merits review contrary to R (Begum) v SIAC [2021] UKSC 7 having erroneously concluded that there is a difference in the approach to decisions made under s.40(2) and decisions made under s.40(3). For this reason alone the judge materially erred and ground 1 is made out. However, ground 2 is also made out. At [26] of the decision the judge found that deception was not material to the acquisition of citizenship. We found this finding inadequately reasoned with reference to deception employed during the application process. The judge did not address the SSHD’s decision in respect of the bad character issue (see [34] of the decision of the SSHD).
6. We heard representations from the parties in respect of the venue for remaking of the decision. We decided, in agreement with the parties, that the appropriate venue for a re-hearing is the First-tier Tribunal. Accordingly we remitted the case to the First-tier Tribunal pursuant to s.12(2)(b)(i) of the 2007 Act for a fresh hearing. In so doing we took into account the Practice Statement of the Senior President of Tribunals, specifically para. 7.2 (a).1 We take into account that the First-tier Tribunal did not determine the appeal under Article 8 of ECHR.
No anonymity direction is made.

Signed Joanna McWilliam Date 18 May 2022

Upper Tribunal Judge McWilliam