Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/47144/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 September 2016
On 28 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHANA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

RASEL AHMED
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr N Bramble, Home Office Presenting Officer
For the Respondent: Mr K Mustafa, Solicitor, Kalam Solicitors

DECISION AND REASONS
1. This is an appeal by the Secretary of State for the Home Department. The appellant is a citizen of Bangladesh born on 3 October 1974 who had appealed against the decision of the respondent dated 26 March 2014 to deprive him of his British citizenship under Section 40 of the British Nationality Act 1981 (as amended). For the sake of convenience, I shall continue to refer to the parties as they were referred to before the first-tier Tribunal.
2. Permission to appeal was initially refused but subsequently granted by Upper Tribunal Judge Pitt on 28 July 2016 on the basis that the determination at paragraph 9 of the judge is not accurate when it stated clearly that the respondent wished to rely on a bundle of documents from the previous appeal and not just on the respondent's reasons for refusal letter.
3. Judge Rimington in her decision made the following findings. The deprivation of a British citizenship is a serious matter. The only document from the Secretary of State before the Tribunal was a reasons for refusal letter drafted on 26 March 2014 and a further letter from the respondent dated 13 December 2015. The respondent did not provide a passport or the interview record and there was no further evidence in support of the assertion of the false passport being produced, by the appellant.
4. It is the responsibility of the respondent to provide such evidence as the burden of proof lies with the Secretary of State. The refusal letter was dated nearly two years prior to the hearing date. The Secretary of State has had ample time within which to produce evidence after the active investigation and nothing has been produced despite three sets of directions from the Tribunal being issued and a previous adjournment of the appeal.
5. The judge found that in the circumstances the Secretary of State has failed to substantiate the assertions made in her reasons for refusal letter for depriving the appellant of British citizenship and failed to comply with the Tribunal directions to produce supporting evidence or documentation. The judge found that the respondent cannot rely on the bare assertion of fraudulent activity alone, and particularly when given repeated opportunities to submit the documents required given that the burden of proof lies on the respondent, and allowed the appellant's appeal.
6. The grounds of appeal of the respondent state that there has been a mistake as to a material fact. The respondent states that at paragraphs 9 to 10 of her decision the judge records that the only document before the Tribunal was the respondent's reasons for refusal letter from 2014 and a further letter in response to the directions dated December 2015.
7. This is in fact a mistake as to a material fact. The letter dated December 2015 written in response to directions clearly indicates that the Secretary of State stated that she wises to rely upon the bundle of evidence which was submitted for the previous hearing in 2014 before Judge Bird. This bundle included a copy of the appellant's interview record, solely upon which the respondent relied, to derived the appellant of his fraudulently attained citizenship. The respondent states that if the judge had regard to this evidence she would have reached an alternative conclusion.
8. I heard submissions from both parties at the hearing as to whether there was an error of law in the decision of the First-tier Tribunal. Mr Bramble in his submissions said that the judge had clearly failed to focus on the 13 December 2015 letter which refers to the bundle of documents that the respondent wished to rely upon. It has been a clear misunderstanding and he speculated that the two files may not have been linked or because of some other administrative error. He said that this is a very serious matter and it is a matter of fairness that the decision be allowed after having considered the bundle of documents by the respondent.
9. Mr Mustafa on behalf of the appellant stated that the respondent has had ample opportunities to furnish the documents and this is no more than an attempt at a second bite of the cherry. He said that the judge considered all the evidence and even considered adjourning the hearing but eventually decided that they had been given sufficient opportunity to provide whatever evidence they wanted the judge to consider.
My Decision as to whether there is an Error in the Decision of the First-tier Tribunal.
10. Deprivation of citizenship is a very serious matter. It is a matter which should only have been considered and decided when all the evidence was before the Tribunal. Considering the decision it is clear that the judge at paragraph 8 stated that the only document from the Secretary of State before the Tribunal was a reasons for refusal letter and a further letter from the respondent on 13 December 2015 but clearly did not consider the contents of the letter in which it is stated that the Secretary of State seeks to rely on the bundle which was before Judge Bird in the initial hearing.
11. I do not wish to go into why and how this bundle was not before the Tribunal. I accept Mr Bramble's submissions that this is a matter of such importance that it cannot simply be made without the evidence of the respondent. This is especially so because the burden of proof lies on her.
12. Mr Bramble has said that he does have the bundle of documents at the hearing which he can produce if I was to find an error of law in the determination. This clearly demonstrates to me that a bundle does indeed exist and it is in the hands of Mr Bramble. Not that I condone the Secretary of State's lacksadaisical behaviour in not providing the bundle of documents upon which they seek to rely, but in this particular instant fairness demands that this appeal be heard on all the evidence so I find that there is an error of law in the decision and I set it aside.

Notice of Decision
13. I therefore remit this appeal to the First-tier Tribunal for findings of fact to be made. The appeal will be placed before any First-tier Tribunal Judge except for Judge Rimington on the first available date.
No anonymity direction is made.

Signed Mrs S Chana Dated this 25th day of September 2016

Deputy Upper Tribunal Judge Chana

TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.

Signed Mrs S Chana Date 25th day of September 2016

Deputy Upper Tribunal Judge Chana