Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-004223
First-tier Tribunal No: DC/50161/2021
LD/00008/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 28 April 2023

Before

UPPER TRIBUNAL JUDGE RINTOUL
DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

DARA OMAR ABDULLAH
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Holt instructed by Lei Dat & Baig Solicitors
For the Respondent: Ms Z Young, Senior Home Office Presenting Officer

Heard at Phoenix House (Bradford) on 24 March 2023

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Pickering, dismissing his appeal against a decision of the Secretary of State made on 4 June 2021 to deprive him of British citizenship.
2. The appellant arrived in the United Kingdom on 13 January 2003, claiming asylum as Karwan Mohammed Ahmed, an Iraqi national born on 21 July 1974 in Jalawla. His asylum claim was refused but he was granted exceptional leave to remain for six months. Further leave to remain was refused on 30 September 2005 and he appealed against that decision. That appeal was also dismissed.
3. On 14 May 2020 the appellant was granted indefinite leave to remain in line with the Rashid litigation and was on 28 December 2011 issued with a certificate of naturalisation as a British citizen subsequent to his application for that on 9 November 2011. The appellant subsequently changed his name to Dara Omar Abdullah and was issued with a British passport in that name.
4. The respondent’s case is that she was entitled to deprive the appellant of his citizenship as he had not told the truth about his name, date of birth or, more importantly, the place from which he originated as, had the respondent been aware that his true place of origin was Halabja, which was in the Kurdish Autonomous Zone of Iraq, not Jalawla which was in the GCI area of Iraq, he would not have been considered under the scope of Rashid and would in all likelihood have been returned to Halabja.
5. In the skeleton argument put before the First-tier Tribunal, it is acknowledged [5] that the appellant had provided false information but relied on mitigating circumstances at the time of his claim for asylum. The appellant accepted [8] that he provided false information in his claim for asylum and that had the Secretary of State been aware that he is actually from Halabja he would not have automatically qualified for a grant of leave to remain. His mitigation is that at the time Kurdistan was in a very precarious and volatile state and that he had fled a militant Islamist group calling itself Jund Al-Islam which had established itself in the Halabja area. He submitted that his judgment at the time was clouded, and it was plausible given the circumstances in the country at the time and very real fears of being harmed this explains his decision to give false details which, he says, he was advised to do by other Kurdish people.
6. In her response, the Secretary of State did not accept the appellant’s explanation, noting that he had not provided any medical evidence demonstrating mental or physical impairment when he claimed asylum in 2003 or subsequently in his other applications, nor was she satisfied that he was unable to make would be independent decisions at the time the material fraud took place.
7. The judge directed himself as to the law [15] to [18] setting out the headnote in Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 00238. The judge recorded [20] that Mr Holt on behalf of the appellant accepted that the condition precedent – that citizenship was obtained by fraud – was made out. He accepted that the appellant’s rights under Article 8 were engaged, noting that the reasonably foreseeable consequences of deprivation would be that the appellant would hold only Iraqi nationality [24] and had not gone further, noting that it would not be necessary and indeed appropriate to conduct a proleptic assessment of the appellant being removed from the United Kingdom. The judge then wrote: -
“25. In terms of proportionality, I have attached significant weight to the maintenance of a system of integrity for providing British Citizenship. It is for that reason I am unable to attach any weight to the appellant’s evidence about his reasons for his dishonesty, namely that he was fearful about being removed to Iraq”.
8. The appellant sought permission to appeal on the grounds that the judge had erred in failing properly to consider the reasons given by the appellant and the country situation as confirmed by the country reports and erred stating that no weight is attached to the appellant’s reasons without giving adequate reasons for doing so.
The Hearing on 24 March 2023
9. Both representatives were in agreement that there was an error of law in that the judge had wrongly stated he was unable to attach any weight to the appellant’s reasons for dishonesty, Ms Young submitting that this was not material.
10. Mr Holt submitted that a full balancing exercise had to be carried out in the proportionality analysis, not simply an assessment of whether there had been a public law error on the part of the Secretary of State. He accepted that the starting point was the significant weight to be attached to the Secretary of State’s point of view but the balancing exercise was not to be conducted on the basis that an appellant could succeed if no reasonable decision-maker could have reached the same conclusion. Mr Holt submitted that the appellant’s fear explained his actions and that it was unlikely that his fear which was operative due to the circumstances which had occurred between 2001 which prompted him to make the prior representations in 2003 was something he would have revisited even if it was no longer objectively made out. Mr Holt drew attention to the evidence indicating that, as a photographer, the appellant would have been particularly at risk from Jund Al-Islam as he had held a shop in which he had photographs of women which would attract adverse attention. He submitted that the mitigating factors set out in Chapter 55.7.11.3 to 6 remain apt.
11. Ms Young submitted that the mitigating factors simply did not cover the appellant’s case and the only reason for the dishonesty was fear of removal to Iraq; but if that were true, then he had no proper reason not to tell the truth. No proper explanation had been given as to why he had not told the truth in his claim for asylum if that was indeed the real reason he feared.
12. At the end of the hearing, we announced our decision that we would dismiss the appeal for reasons to be given in writing, which we now give.
Discussion
13. The issue here is narrow. The issue is whether in stating that he could attach no weight to the mitigating factors put forward by the appellant that he was unable to attach any weight to the evidence about reasons for dishonesty the judge erred materially.
14. It is sufficiently clear from what is written at [25] that the judge was aware that there was a balancing exercise to be undertaken. That is implicit in his observations as to weight. As Mr Holt accepted when we put it to him, had the judge said that he was able only to attach limited weight to the appellant’s evidence then there would have been no error of law.
15. Our first observation is, that properly understood, the judge did not say he was unable to attach weight to any factor in the appellant’s favour. He did not direct himself that weight could not be attached to delay, and so his misdirection was not to say that no factors could outweigh the public interest in maintaining the system.
16. We have considered what weight the judge could or would have attached to the appellant’s case, had he directed himself correctly.
17. Even taken at its highest, the appellant’s explanation for not telling the truth does not engage the mitigating factors set out in Chapter 55.7.11 of the respondent’s guidance. That is because those factors they simply do not show that he was suffering from any mental or physical impairment which impacted on his judgment at the time the material fraud took place, nor do they indicate some form of coercion, properly understood. That is not of course determinative but it is a relevant consideration.
18. Further, it is difficult to see how any of the claimed fear could properly explain the later deceptions perpetrated – well after he had acquired leave to remain in the United Kingdom - in the subsequent application for leave, the application for a travel document, and in the application for naturalisation. Despite Mr Holt’s valiant submissions, we do not accept that there is sufficient evidence of that in the appellant’s witness statement; in reality, the appellant is silent on those points. As the respondent submitted, if what the appellant now says about the reasons he left Iraq are true, then the question arises why he did not initially think that the real reason for his fear was sufficient to ground a claim for asylum.
19. The point is that the appellant lied. He accepts that. We find no rational basis on which it could be said that anything other than minimal weight that could be attached to the explanation now given for his sustained deception. Even taking it at its highest, it could not on any rational view displace the significant weight to be attached to maintaining the integrity of the system. Further, even if it were accepted that the explanation could explain the initial claim in 2003, he cannot adequately explain the later maintenance of the deception upon which the Secretary of State also relied.
20. Accordingly, we consider that even had the judge not misdirected himself as to law, he would inevitably come to the same conclusion, and that little weight could be attached to the appellant’s explanations for his conduct. Given the defects in the evidence, and the maintenance of the lie for a considerable period, up to and including the application for naturalisation, which was material, we conclude that no judge could rationally have concluded on this evidence that the public interest was outweighed by the purported reason for deception.
21. Accordingly, for these reasons we find the decision of the First-tier Tribunal was not material and we uphold it.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of an error of law and we uphold it.

Signed Date 23 April 2023

Jeremy K H Rintoul

Upper Tribunal Judge Rintoul