Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-006090

First-tier Tribunal No: DC/50104/2022
LD/00229/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 28 April 2023

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

IBRAHIM GHAZALI IBRAHIM
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms S Cunha, Senior Home Office Presenting Officer
For the Respondent: Mr A Slatter, of Counsel instructed by Ernst Law Solicitors

Heard at Field House on 21 March 2023

DECISION AND REASONS
Introduction
1. The claimant was born in Iraq in January 1985. He arrived in the UK in December 2005 and made an asylum claim in the name of Howkar Mohammed Aziz, a citizen of Iraq, born in 1989. In this name the claimant was granted indefinite leave to remain in June 2010 under the Legacy Scheme, and on 31st January 2012 he was naturalised as a British citizen.
2. On 29th November 2018 the claimant applied to correct his name, date of birth and place of birth to the Secretary of State explaining he had given false details provided by the agent who brought him to the UK and that his legal representative had told him without documentation from Iraq it would be hard to change his details to his original or true name with the Home Office. In March 2019 he was told his case had been referred to the Status Review Unit, and in November 2019 he was told the Secretary of State was considering depriving him of his British citizenship. The claimant responded to this in December 2019. On 28th April 2022 the Secretary of State decided to deprive him of his British citizenship under s.40(3) of the British Nationality Act 1981 on the basis that he had acquired his naturalisation by fraud. The claimant’s appeal against the decision to deprive him of his British citizenship was allowed by First-tier Tribunal Judge Wright after a hearing on 30th November 2022.
3. Permission to appeal was granted to the Secretary of State by Judge of the First-tier Tribunal Grimes on 4th January 2023 on the basis that it was arguable that the First-tier judge had erred in law in determining the appeal against the decision to deprive the claimant of his citizenship in finding that the Secretary of State was aware of the claimant’s fraud when considering the naturalisation application despite the claimant’s failure to disclose the earlier fraud and his perpetuating it in the naturalisation application. It was found that it was also arguable that the Article 8 ECHR proportionality assessment was contaminated by the arguable error of law in the s.40(3) decision. Permission was granted on all grounds.
4. The matter came before me to determine whether the First-tier Tribunal had erred in law, and if so to decide if any error was material and the decision should be set aside.
Submissions – Error of Law
5. In the grounds of appeal it is argued, in short summary, as follows. The First-tier Tribunal concluded, at paragraphs 46 and 47 of the decision, that the claimant had used deception in his asylum and legacy application and in his citizenship application, but also finds that because the Secretary of State had been told about his true date of birth and identity (as a result of information which came to them from the German authorities as a result of a Dublin 11 application in 2005 to remove him to Germany) that the Secretary of State was aware of these facts when granting leave to remain and citizenship, and so the claimant’s deception was not instrumental in his getting citizenship.
6. Firstly, it is argued that there was a material misdirection of law, a failure to take material information into account and ultimately the First-tier Tribunal made an irrational decision. It is argued that the claimant never attended the second screening interview at which the matters raised in the German response to the Dublin II request would have been discussed in December 2005 and that no decision was ever made on the German information in 2005 as a result of the claimant absconding. It was irrational to blame the Secretary of State when the claimant had obscured his true identity, and perpetuated the original fraud, in his citizenship application, and when the Secretary of State would have clearly taken this into account as evidence of a lack of good character had she known about it.
7. Secondly, it is argued, that the proportionality assessment under Article 8 ECHR is flawed as the delays by the Secretary of State (not acting on the German information provided in 2005, and then not acting on the information the claimant provided in 2018 until 2022) should not have weighed in the claimant’s favour because the Chapter 55 Policy: Deprivation and Nullity of British Citizenship states that there is no time in which such proceedings must be initiated, and in any case proceedings started towards making this decision a year after the claimant sent his 2018 information, and further it is not made clear in which of the EB (Kosovo) senses delay weighed in the claimant’s favour. It is also argued that it was irrational to have found that it weighed in the claimant’s favour that the only evidence of bad character was the deception itself at paragraph 75 of the decision. Further, it is argued, it is not right to give him credit for coming clean about the deception.
8. In the Rule 24 response from Mr Soloman, of counsel, for the claimant, it is argued that there are no material misdirections of law; all relevant matters are considered; and the decision is rational and not based on consideration of immaterial matters. It is argued that the grounds only amount to a disagreement with the outcome of the appeal and are an attempt to reargue the substantive merits of the appeal. At the hearing before the First-tier Tribunal the presenting officer conceded that the claimant would have been successful in obtaining indefinite leave to remain under the legacy scheme even if he had come clean, and also that the claimant is very likely to be entitled to leave to remain in the UK on human rights grounds.
9. In respect of the s.40 deprivation appeal it is argued that it was open to the First-tier Tribunal to conclude that Secretary of State mishandled information that she held about the claimant’s different identities; it is clear that the First-tier Tribunal had taken into account the fact that the claimant had absconded prior to his second screening interview and had continued to use the false details given by the smuggler including in the naturalisation application; it is argued that the judge takes into account the use of false information and applies the Secretary of State’s own policy when assessing this fact and rationally comes to the conclusion that the Secretary of State had the information about the use of the false identity and ought to have applied her policy to consider if she had in fact deprived herself of the opportunity to judge the claimant’s character.
10. In respect of the Article 8 ECHR appeal it is argued that it was reasonable to consider the Secretary of State’s delay in acting on information available to her even if her own policy is that proceedings to deprive can be taken at any time; and arguments that there was no delay are just a disagreement on the facts as found by the First-tier Tribunal. Further the First-tier Tribunal applies EB Kosovo and finds that the delay is reflective of a dis-functional immigration system, and has enabled private and family life ties to deepen, particularly as the claimant’s wife has been granted leave to enter as a spouse and his son has been granted indefinite leave to remain; and consideration is given to the nature of the deception in the context of the Secretary of State’s Chapter 55 policy which accepts that using a different name is only unacceptable if it is done to conceal criminality or other information relevant to good character. Weight is given to the public interest, and, properly, to the length of the claimant’s residence, work history and integration within the UK.
11. In the alternative it is argued for the claimant that even if there are errors of law that none are material given the concessions of the Secretary of State in the appeal.
12. At the hearing I focused the parties’ submissions on the reasoning of the First-tier Tribunal, and include their submissions in my reasoning regarding the contended errors of law as set out below.
Conclusions – Error of Law
1. At paragraph 20 of the decision of the First-tier Tribunal it is clear that it was common ground between the parties that the claimant factually made a false representation in giving a false name and date of birth on his asylum application, legacy leave application and application for citizenship, but the parties disagreed as to whether it was material in obtaining citizenship. The presenting officer conceded before the First-tier Tribunal that the claimant would have been successful in obtaining legacy leave to remain regardless of the deception. This concession is set out at paragraphs 21 and 29 of the decision, and at paragraph 46 in the conclusions section of the decision.
2. The First-tier Tribunal properly directed itself in relation to the law relating to the deprivation appeal, by reference to Laci v SSHD [2021] EWCA, Begum v SSHD [2021] UKSC 7, Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 00238. At paragraphs 38 and 45 of the decision it is noted that the First-tier Tribunal must decide whether the Secretary of State did or did not follow her own policy or otherwise did or did not act in an irrational way in making the deprivation decision. Reference is also made to Deliallisi (British citizenship; deprivation appeal: Scope) Albania [2013] with respect to the result that the claimant would have no leave to remain if deprived of his citizenship but it is noted that the presenting officer’s concession that if a human rights appeal was made the claimant would be likely to be granted some sort of leave to remain given the fact that his minor son has indefinite leave to remain in the UK. I find that the First-tier Tribunal correctly understood that the s.40(3) appeal was to be conducted by applying public law review principles to the decision of the Secretary of State. I indicated to the parties before me that this had implications for the meaning of an appeal being allowed: if it was allowed what was found was that the Secretary of State had made such errors and the decision-making was flawed and should be withdrawn, but it was clearly open to the Secretary of State to remake the decision remedying an such flaws in the process of decision-making, in this case by applying the relevant policies identified by the First-tier Tribunal, as ultimately the First-tier Tribunal correctly did not express its own view on the s.40(3) decision-making.
3. I find that the deprivation appeal is allowed, in the conclusions paragraphs 48 to 50 of the decision, for two reasons.
4. Firstly, it is allowed because the First-tier Tribunal finds that the Secretary of State did not consider that she was aware of information going to the claimant’s true identity as a result of the Dublin II take back request to the German authorities (which appears in the Secretary of State’s bundle at Annex W p.200 onwards) and so ignored relevant information when considering whether the deception was material. Ms Cunha accepted that this information was not discussed in the decision letter depriving the claimant of his citizenship but argued before that the material was not conclusive of the claimant’s identity because he did not attend the second screening interview to discuss it, and instead, absconded, and because it included three sets of details suggesting he had said he was also from Iran, as well as details giving his nationality as Iraqi, and two different dates of birth. I find that the information in the take-back request was in no way conclusive evidence of the claimant’s identity nevertheless it was evidence that was material to the claimant having given different names in the course of his dealings with immigration authorities. It was therefore evidence that strongly suggested that claimant had used multiple names, and which did in fact disclose his true identity. I find that it was open to the First-tier Tribunal to have rationally found that this evidence ought to have been considered as material when considering whether there was a material deception by the claimant on his naturalisation form. This is particularly the case given the Secretary of State’s policy, Chapter 55: Deprivation and Nullity of British Citizenship, at 55.7.4 (set out at page 188 in Annex V of the Secretary of State’s bundle) which indicates that a person may use a different name if they so wish so long as this is not to conceal criminality and was not material to the claimant being able to obtain naturalisation, and given that it was conceded by the presenting officer that the false name did not lead to the claimant obtaining immigration status (indefinite leave to remain under the legacy policy) which he would not otherwise have been able to obtain.
5. The First-tier Tribunal then moves on to find that the Secretary of State also falls into public error because she failed to follow her own policy at 55.7.10.2 (which appears at page 190 of the Secretary of State’s bundle in Annex V) which advises that evidence which was disregarded or mishandled by the Secretary of State should not in general be used at a later stage to deprive a claimant of citizenship. It is concluded by the First-tier Tribunal that the above evidence had been apparently disregarded or mishandled, in the sense that known material held by the Secretary of State disclosing the multiple names pertaining to this claimant had not been addressed, and that this policy ought therefore to have been considered as potentially relevant and reasoning ought to have been set out in the reasons for refusal letter if the claimant was to be deprived of his citizenship. This part of the policy is not referenced in the reasons for refusal letter, and there is no reasoning considering it.
6. It is clearly not the case that the Secretary of State could not deprive this claimant of his citizenship even if the Secretary of State accepted that relevant evidence had been disregarded or mishandled, as applying the Chapter 55 policy it would have been possible to deprive the claimant if it was considered that deprivation remained in the public interest. Nevertheless, I find it was rationally open to the First-tier Tribunal to consider that reference ought to have been made to this part of the Chapter 55 policy and reasoning set out in the decision depriving the claimant of his citizenship, and failure to do so was a public law error.
7. I find that there are no material errors relating to Article 8 ECHR decision as the appeal is not, in conclusion, allowed on this basis. At paragraph 64 of the decision it is decided that Article 8(1) is not engaged by the decision under appeal; and at paragraph 76 of the decision it is found that after consideration of all the evidence that the appeal would not have been allowed on Article 8 ECHR grounds if it had been dismissed under s.40(3) British Nationality Act 1981; and the appeal is clearly only allowed on the basis of s.40 in the final decision.
Decision:
1. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
2. I uphold the decision of the First-tier Tribunal allowing the appeal under s.40(3) of the British Nationality Act 1981.

Fiona Lindsley

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27th March 2023