Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-006516

First-tier Tribunal No: DC/00071/2019

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 10th of October 2025

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN
DEPUTY UPPER TRIBUNAL JUDGE KUDHAIL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

GENTIAN HOTI
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms S Lecointe, Senior Presenting Officer
For the Respondent: Mr D Jones, Counsel, instructed by Direct Access

Heard at Field House on 18 September 2025

DECISION AND REASONS
Introduction
1. In our decision the appellant before the Upper Tribunal is referred to as the Secretary of State and the respondent as Mr Hoti.
2. The Secretary of State appeals a decision of the First-tier Tribunal sent to the parties on 16 November 2022. Designated First-tier Tribunal Judge Shaerf allowed Mr Hoti’s appeal under section 40A(1) of the British Nationality Act 1981.
3. Mr Hoti’s underlying appeal is directed against a decision of the Secretary of State to deprive him of his British citizenship which was issued as long ago as 6 June 2019.
4. The appeal came before this panel consequent to the parties agreeing a consent order following the Court of Appeal granting Mr Hoti permission to appeal a previous decision of this Tribunal.
Relevant Facts
5. Mr Hoti is a national of Albania, who was born on 17 June 1984 and is presently aged 41. Almost to the day 26 years ago, on 30 September 1999, he arrived in the United Kingdom as a minor, then aged 15, and claimed asylum under an assumed identity, namely “Gentian Hoti”, an “ethnic Kosovan Albanian” born on “17 June 1985”. His assumed identity therefore included his genuine name, with his age reduced by one year and the false identification that he was a citizen of the Federal Republic of Yugoslavia.
6. On 27 October 1999, a Self-Completion Questionnaire was completed by a solicitor on Mr Hoti’s behalf. It was stated that his family had suffered at the hands of the Serbian-dominated Yugoslavian authorities in Kosovo, that consequently his father had arranged for the family to leave Kosovo, and he had lost contact with his family as they were crossing the Kosovan/Montenegrin border.
7. On 17 November 1999 the Secretary of State refused Mr Hoti’s claim for international protection but, on the same day, she granted him exceptional leave to remain until 17 November 2003. The Secretary of State correctly understood Mr Hoti to be a minor on the date leave was granted. However, the Secretary of State had been misled as to Mr Hoti’s identity, namely his country of nationality and his date of birth. Mr Hoti was subsequently placed into local authority care and in August 2000 the local authority made a successful application on his behalf for a travel document.
8. On 17 October 2003, while still in the care of a local authority, Mr Hoti applied for indefinite leave to remain (‘ILR’). On his false date of birth, he was aged 18 and no longer a minor. He was actually aged 19. However, on his correct date of birth, having spent more than 13 weeks in care since the age of 14, the local authority would have held responsibilities towards him under the Children Act 1989 until at least the age of 21.
9. The Secretary of State granted him indefinite leave to remain on 2 April 2004. At this date, Mr Hoti was still aged 18 under his false identity and 19 in his true identity.
10. On 28 March 2005, Mr Hoti applied to naturalise as a British citizen. On his true age, he was 20. He was aided in his application by the local authority who engaged with a solicitor on his behalf. Mr Hoti confirmed at section 4.11 of the application form that he was of good character. On 2 August 2005 his application was granted. Throughout the time of application and subsequent naturalisation Mr Hoti remained in the care of a local authority.
11. The Secretary of State sent Mr Hoti an investigation letter regarding his British citizenship on 22 April 2010. Mr Hoti replied on two occasions, firstly in May 2010 and again on 18 October 2011. On 18 February 2013 the Secretary of State issued Mr Hoti with a notice of decision advising him that his naturalisation as a British citizen was null and void. Mr Hoti instructed solicitors and a pre-action letter resulted in the Secretary of State maintaining her decision. A subsequent judicial review challenge in which Mr Hoti relied upon his ‘Kosovan identity’ was dismissed by Dingemans J (as he then was) by a decision dated 3 October 2013.
12. On 3 October 2017, Mr Hoti was issued with a biometric residence permit (“BRP”) conferring settlement. Importantly for these proceedings in 2025, it is accepted by the Secretary of State that that extension of previously held ILR required satisfaction of the then relevant suitability requirements. The issuing of the BRP followed Mr Hoti’s application for an extension dated 3 September 2017.
13. On 8 January 2018, Mr Hoti was advised that the nullity decision made on 18 February 2013 was being reviewed, and it was thereafter withdrawn by the Secretary of State consequent to a decision dated 3 February 2018. These acts followed the Secretary of State’s concession as to her approach to nullity before the Supreme Court in R (Hysaj) v. Secretary of State for the Home Department [2017] UKSC 82; [2018] 1 WLR 221 (17 December 2017).
14. The Secretary of State advised Mr Hoti on 17 March 2018 that the deprivation of his British citizenship was again being considered. Less than two weeks later, on 28 March 2018, Mr Hoti submitted mitigating and compassionate circumstances to be considered by the Secretary of State. On 6 June 2019, the Secretary of State issued a notice of decision to deprive Mr Hoti of British nationality. The Secretary of State observed, inter alia;
(i) in every application made to the Secretary of State since his arrival in the United Kingdom, Mr Hoti had maintained or left uncorrected that he had been born in 1985 and that he was a Kosovan national;
(ii) it was accepted that Mr Hoti could not properly be held accountable for relying upon a false identity when he was a minor, but the view was taken that Mr Hoti had intended to deceive her in each of his applications after his initial application; and
(iii) that depriving Mr Hoti of his citizenship would not have a significant impact on the best interests of either his children or on his partner’s status.
15. Mr Hoti filed grounds of appeal to the First-tier Tribunal on 20 June 2019. The appeal came before First-tier Tribunal Judge Swaney, who allowed the appeal by a decision dated 4 August 2020. There was a significant delay in the Secretary of State filing her application for permission to appeal to the Upper Tribunal. Having read the reasons provided for the delay, Upper Tribunal Judge Rimington granted the Secretary of State permission to appeal Judge Swaney’s decision on 15 September 2021.
16. By a decision sent to the parties on 23 November 2021, Upper Tribunal Judge Sheridan and Deputy Upper Tribunal Judge Black found that the approach adopted by Judge Swaney was inconsistent with the approach to be adopted to deprivation appeals under the British Nationality Act 1981 as confirmed by the Supreme Court in R (Begum) v Special Immigration Appeal Commission [2021] UKSC 7; [2021] AC 765. This appeal was remitted back to the First-tier Tribunal to be heard afresh. We consider it appropriate to observe that Judge Swaney’s decision pre-dates the judgment of the Supreme Court.
Decision of the First-tier Tribunal
17. The appeal came before Judge Shaerf sitting at Taylor House on 4 October 2022. Mr Hoti attended the hearing remotely and was cross-examined along with his wife. He was not represented but relied upon a detailed skeleton argument previously prepared by Ms H Foot, Counsel, who was junior counsel in the Supreme Court matter of Hysaj. The Secretary of State was represented by Mr P Armstrong, a Home Office Presenting Officer.
18. By his decision promulgated on 16 November 2022, in which he allowed the appeal, Judge Shaerf found as to fact:
(i) The Secretary of State did not challenge Mr Hoti’s credibility in other areas of his evidence save for the applications made to her subsequent to the expiry of exceptional leave to remain on 17 November 2003 and though there were a few apparent inconsistencies across the entirety of his evidence, Mr Hoti’s evidence was broadly credible and his wife’s evidence was also credible, [51] of the decision.
(ii) When Mr Hoti made his application for ILR in 2003 and in each subsequent application to the Secretary of State prior to consideration of nullity by the Secretary of State, Mr Hoti was aware that the basis of his original leave to remain in the United Kingdom was because of his claimed Kosovan origin, [52].
(iii) In light of the Presidential panel decision in Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238; [2021] Imm AR 1909, no weight could be attached to the issue of any delay on the Secretary of State’s behalf between February 2013, when notice was issued that Mr Hoti’s citizenship had been nullified, and December 2017, when judgment in Hysaj was delivered by the Supreme Court, [58].
(iv) However, there was an eighteen month delay until 6 June 2019 in the Secretary of State issuing her decision to revoke citizenship and a further period of almost one year in which the Secretary of State failed to seek permission to appeal the First-tier Tribunal decision of Judge Swaney of 4 August 2020, albeit the latter was of less relevance. These periods contributed to delay on the part of the Secretary of State, [58].
(v) The questionnaire dated 27 October 1999 was completed when Mr Hoti was a minor and so no culpability for any misrepresentations in it could be attached to him, [62].
(vi) There was no evidence as to the circumstances around the ILR application of 16 October 2003 or the naturalisation application, [64].
(vii) Since his application for judicial review in 2013, Mr Hoti had not and continued not to maintain that he was born in Kosovo. Since that time, he has accepted that he was born in Albania, [66].
(viii) Mr Hoti “probably” told Malik & Malik (his previous legal representatives) that he was born in Albania in May 2010, and he may have been advised by friends that this might cause problems for him as it was inconsistent with the identity he had previously informed the Secretary of State when he first arrived as a minor, [67].
(ix) The Secretary of State accepted that on arrival and being an unaccompanied minor, it was not feasible to return Mr Hoti to Kosovo or to Albania, [69].
(x) In contrast to the position of the Secretary of State in her challenged decision, which prescribed it would be about twelve weeks before Mr Hoti’s appeal against deprivation being unsuccessful and the exhaustion of his rights of appeal (the limbo period), it was more likely that this period will be some eighteen months (this length of time being identified by Mr Armstrong at the hearing), [78].
(xi) Mr Hoti was effectively placed in limbo between the nullity decision of 18 February 2013 and the grant of ILR in 2017. During that time, he had lost his employment and his accommodation, and he was supported by his wife who was working at the time. Depriving him of his citizenship at this time would place him back in the position that he had previously experienced for a very extended period. The consequences for his family of him losing his employment and accommodation for a second time for much the same reason that he did in 2013 and the likely extended length of any limbo period, and also having regard to the length of time he had been living in the United Kingdom which was now in excess of twenty years, was found to be a sufficiently grave interference with his private and family life to engage the State’s obligation under article 8, [80].
19. Having reviewed the context in which Mr Hoti’s immigration applications were made, Judge Shaerf expressly applied the review approach required in Ciceri, and found following a public law review that the Secretary of State’s deprivation decision was flawed in law:
(i) The Secretary of State’s decision failed to go beyond what was on the face of each application made since 1999 and there had been no review subsequent to the filing of Mr Hoti’s appeal bundle, [72].
(ii) The Secretary of State persisted in relying upon there being misrepresentation by Mr Hoti in 1999 as to his place of birth, despite the Secretary of State’s acceptance that because he was a minor at the time he could not be considered culpable for it, [73].
(iii) There was no consideration by the Secretary of State of the context to which the documents leading to the grant of leave and naturalisation were prepared, such evidence being submitted before August 2020, [73].
(iv) The Secretary of State failed to consider that the grant in 2017 of ILR which was made in Mr Hoti’s Albanian nationality. The Judge observed had the grant of ILR has led Mr Hoti to believe that the issue regarding the matter of good character had been considered settled. The Secretary of State had provided no explanation as to why the grant of ILR was limited to “two years”, [74].
(v) The Secretary of State had failed to carefully examine what advantage Mr Hoti would be seeking to retain because of any deceit or misrepresentation he practised. The advantage he obtained arose, initially, by virtue of his claiming to be an unaccompanied minor and the Secretary of State not being able to return him anywhere because of the lack of adequate reception facilities in either Kosovo or Albania, or because his parents had not by then acquired residence status in Italy. Consequent to his true age, the same advantage would have occurred. The subsequent advantages of ILR and naturalisation arose because of his length of residence in the United Kingdom, [75].
20. As to article 8, Judge Shaerf found that the consequences of deprivation upon Mr Hoti and his family were not considered in the article 8 assessment, at [76]. Adopting the approach set out by the Supreme Court in EB (Kosovo) v. Secretary of State for the Home Department [2008] UKHL 41, [2009] 1 AC 1159, the Judge held that Mr Hoti had a long established private and family life in this country, that the Secretary of State’s decision engaged her obligations under article 8, and as to proportionality the failure to consider all relevant information about being satisfied that family life rendered the decision inadequate and Wednesbury unreasonable, at [78], [82–83].
Grounds of Appeal
21. The Secretary of State’s grounds of appeal are now of some age, being dated 28 November 2022, and the relevance of this observation is addressed below. We were helpfully aided by Ms Lecointe to identify the thrust of the grounds as encompassing two issues. The first being material error for misdirection of law, and secondly a failure to give adequate reasons.
Appeal History
22. By a decision dated 30 March 2023 First-tier Tribunal Judge Davidge granted the Secretary of State permission to appeal from the decision of Judge Shaerf, reasoning that it was arguable that the Judge did not correctly apply the guidance in Ciceri and consequently conflated the relevant tests.
23. The appeal initially came before Upper Tribunal Judge Gleeson who by a decision dated 15 January 2024 found material error of law, set aside the decision of Judge Shaerf in its entirety, re-made the decision and dismissed Mr Hoti’s appeal. Mr Hoti was aggrieved, in part, by the decision to re-make the decision in the absence of further submissions. He contends that this potential approach was not identified at the hearing.
24. Mr Hoti appealed to the Court of Appeal. By an order sealed on 3 July 2024, Lady Justice Falk granted him permission to appeal reasoning, inter alia:
“In deciding that the threshold for a second appeal is met, I have taken into account that the Appellant has succeeded twice before the FTT and that the SSHD has not explained the decision to grant settlement in 2017, at a time when the Department was aware of the deception. I have also considered it appropriate to grant permission on all grounds due to their interrelated nature.
I note that the potential application of the Supreme Court’s judgment in Begum v Secretary of State for the Home Department [2021] UKSC 7; [2021] AC 765 to s.40(3) of the British Nationality Act 1981 was left open in both Shyti v Secretary of State for the Home Department [2023] EWCA Civ 770 and Ahmed v Secretary of State for the Home Department [2023] EWCA Civ 1087. I raise this because it might affect the way in which the arguments are put”.
25. Relevant to our consideration below, we note Falk LJ’s observation to there being no explanation by the Secretary of State as to why she granted Mr Hoti settlement in his Albanian nationality in 2017.
26. Consideration as to the deprivation of citizenship regime has moved on since Falk LJ’s reasoning in the summer of 2024, particularly with recent decisions of the Court of Appeal that we address below.
27. Following the order of the Court of Appeal the parties agreed a consent order which was approved. The relevant terms of the order are:
“BY CONSENT, IT IS ORDERED THAT:
1. This appeal be allowed and the entire decision of UTJ Gleeson dated 15 January 2024 (finding error in the FTT’s decision promulgated 16 November 2022, setting it aside and remaking the decision dismissing the Appellant’s appeal) be set aside.
2. The Appellant’s deprivation appeal be remitted to the Upper Tribunal to consider afresh whether there is an error of law in the FTT’s decision of 16 November 2022, before a different judge”.
28. We therefore proceed on the basis that the Court of Appeal did not set aside Judge Rimington’s grant of permission to appeal and considered that the Secretary of State’s appeal continued to be arguable.
Law
29. Section 6 of the British Nationality Act 1981:
“Acquisition by naturalisation
(1) if, on application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.”
30. Schedule 1 to the Act provides, inter alia, that applicants must be of good character.
31. Section 40(2) and (3) of the 1981 Act:
“Deprivation of citizenship
(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.
(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 the registration or naturalisation was obtained by means of -
a) fraud,
b) false representation, or
c) concealment of a material fact.”
32. An appeal is by way of section 40A of the 1981 Act:
“40A. Deprivation of citizenship: appeal
(1) A person who is given notice under section 40(5) of a decision to make an order in respect of him under section 40 may appeal against the decision to the First-tier Tribunal.”
33. For several years, deprivation appeals under section 40A adopted the guidance in Deliallisi (British Citizen: deprivation appeal; Scope) [2013] UKUT 439 (IAC) and, more recently, BA (deprivation of citizenship: Appeals) [2018] UKUT 85 (IAC), [2018] Imm AR 807 and Hysaj (Deprivation of Citizenship: Delay) [2020] UKUT 128 (IAC); [2020] Imm AR 1044.
34. Lord Reed, giving judgment for the Court in Begum was critical of the conclusion reached in Deliallisi and BA that it was necessary when considering such an appeal for the First-tier Tribunal to exercise afresh any judgment or discretion which had been exercised by the Secretary of State in reaching the decision against which the appeal was brought. In short, Lord Reed rejected the suggestion that a full merits review was required in an appeal under section 40A of the 1981 Act.
35. Thereafter from [63] to [71] of his judgment Lord Reed sets out the essence of the Supreme Court's decision in relation to the scope of the jurisdiction on an appeal under section 2B of the Special Immigration Appeals Commission Act 1997 against a decision under section 40(2) of the 1981 Act. We are not required to set out these paragraphs as they have been considered in the judgments considered below.
36. By the time of the hearing before Judge Shaerf in October 2022, the relevant reported case was Ciceri. The headnote to the decision confirms that the Tribunal must first establish whether the relevant condition precedent specified in section 40(2) or (3) of the British Nationality Act 1981 exists for the exercise of the discretion whether to deprive an appellant of British citizenship. In a section 40(3) case, this requires the Tribunal to establish whether citizenship was obtained by one or more of the means specified in that subsection. If the relevant condition precedent is established, the Tribunal must determine whether the rights of an appellant or any other relevant person under the ECHR are engaged. If they are, the Tribunal must decide for itself whether depriving an appellant of British citizenship would constitute a violation of those rights, contrary to the obligation under section 6 of the Human Rights Act 1998 not to act in a way that is incompatible with the ECHR. These are often referred to as the three steps.
37. This Upper Tribunal gave further guidance in Chimi (Deprivation Appeals: Scope and Evidence: Cameroon) [2023] UKUT 115 (IAC); [2023] Imm AR 1071.
38. In recent times, issues arising from the judgment in Begum have been considered by the Court of Appeal in Chaudhry v. Secretary of State for the Home Department [2025] EWCA Civ 16; [2025] KB 395; Secretary of State for the Home Department v. Kolicaj [2025] EWCA Civ 10 and Secretary of State for the Home Department v. Daci [2025] EWCA Civ 18.
39. In Chaudhry, at [54] and [58], the court gave guidance on the approach to be adopted on an appeal to the First-tier Tribunal from a decision made under section 40(3). It is for the Tribunal to (i) find, in the event of a dispute, as a fact whether there had been “fraud”, “false representation” or “concealment of a material fact” for the purposes of section 40(3)(a) to (c), (ii) review on public law grounds the Secretary of State's decision as to whether the person's registration or naturalisation had been obtained “by means of” such fraud, false representation or concealment for the purposes of section 40(3), (iii) review on public law grounds the exercise of the Secretary of State's discretion to make an order depriving the person of citizenship status and (iv) consider whether the Secretary of State had acted in breach of other relevant legal obligations, including those arising under section 6 of the Human Rights Act 1998, giving due weight to the findings, evaluations and policies of the Secretary of State. Steps 1 to 3 are confirmed, but with greater precision. i) and ii) are linked elements of step 1.
Analysis
40. This panel is mindful that judicial caution and restraint is required when considering whether to set aside a decision of a specialist Tribunal. We note the observation of Baroness Hale in AH (Sudan) v. Secretary of State for the Home Department [2007] UKHL 49; [2008] 1 AC 678, at [30], that appellate courts should not rush to find misdirection simply because they might have reached a different conclusion on the facts or expressed themselves differently.
41. We have been greatly aided by the oral submissions of Mr Jones and Ms Lecointe. Mr Jones produced a comprehensive, focused and very helpful skeleton argument. Whilst not withdrawing the appeal, Ms Lecointe appropriately observed the difficulties the Secretary of State faced, particularly as to the grant of ILR in 2017 as consequence of which Mr Hoti’s good character was accepted.
42. We observe that at the time of the drafting of the grounds of appeal the Secretary of State’s focus was upon the Presidential panel’s decision in Ciceri. Observations were made in respect of the Court of Appeal judgment in Laci v. Secretary of State for the Home Department [2021] EWCA Civ 769 and the Upper Tribunal Presidential panel decision in Hysaj. Reliance was also placed upon the reported decision of Sleiman (Deprivation of Citizenship: Conduct) [2017] UKUT 367 (IAC). Both representatives acknowledged that judicial consideration of the relevant regime has moved on, and focus was primarily directed towards Chaudhry.
43. Following discussion between the representatives it was acknowledged by Mr Jones that Mr Hoti had accepted before Judge Shaerf the condition precedent, namely that there had been false representation of a material fact for the purpose of Section 40(3) of the 1998 Act, namely in relation to his country of nationality and his date of birth, both of which went towards the identification of his personal identity. Ms Lecointe accepted that the second stage required the exercise of the Secretary of State’s discretion to make an order depriving a person’s citizenship status to be reviewed on appeal by the First-tier Tribunal on public law grounds. She acknowledged that the grounds of appeal in respect of this step were drafted in the manner of a challenge to a merits-based decision, rather than public law reasoning. Both representatives agreed that our assessment of Article 8 fell to be considered under step 3.
Step 2 - review on public law grounds the exercise of the Secretary of State's discretion to make an order depriving the person of citizenship status
44. We observe para. 24 of the Secretary of State’s decision:
“24. ... Had you declared your true details at the time of your ILR application, the discrepancies in your identity would have been noted and once it was established that you were actually from Albania rather than Kosovo as initially claimed, it is likely that removal to Albania would have been applicable. As such, you would not have acquired the residence requirements needed to naturalise and any application for citizenship made in the absence of the same would have fallen for refusal. Furthermore, your application for naturalisation would have fallen for refusal due to failure to satisfy the good character requirement had the details of your deception been known.” {Emphasis added].
45. Mr Hoti was issued with his BRP confirming ILR on 3 October 2017, approximately five months before the Secretary of State informed him that deprivation of his citizenship was being considered and almost seventeen months before the decision to deprive was made. On the date of the Secretary of State’s decision, paragraph 339R of the Immigration Rules, concerned with the requirements for indefinite leave to remain for persons granted refugee status or humanitarian protection, provided at (iii)(f) a requirement as to conduct, character or associations. Additionally, paragraph 276DE, concerned with the requirements for leave to remain on the grounds of private life in the United Kingdom also had at this time a requirement as to conduct, character or associations at (e). The same requirement was identified at Section S-ILR.1.8 to Appendix FM
46. Mr Jones has drawn our attention to the Secretary of State’s “Asylum Policy Instruction: Settlement Protection” version 4.0 (2 February 2016), at para. 5.6:
“5.6 Character, conduct or associations
Considering whether to refuse settlement on the basis of an applicant's or their dependants' conduct, character or association involves a case-specific assessment. This will include where the person's conduct (including convictions which do not fall within paragraphs 339R(iii)(a-e)), character, associations, or other reasons, make it undesirable to grant settlement. This includes those who espouse extremist views or unacceptable behaviours that run counter to British values. Where there is any evidence of such views it will be appropriate to refuse settlement. All cases involving terrorism, extremism and unacceptable behaviours, national security or war crimes must be referred to Special Cases Unit (SCU). Caseworkers must refer to the General Grounds for Refusal guidance on applying the criminality requirements when considering whether to refuse settlement on the basis of character, conduct or associations.” [Emphasis added].
47. Annex D to chapter 18: The good character requirement established at the date of decision in 2017 confirmed that its application was discretionary:
“1.3 Aspects of the Requirement The decision maker will not normally consider a person to be of good character if there is information to suggest:
...
e. They had been deliberately dishonest or deceptive in their dealings with the UK Government.
...
This is a non-exhaustive list.” [Emphasis added].
48. The existence of discretion was further confirmed by the Secretary of State’s “General grounds for refusal: Section 4 of 5: considering leave to remain” version 28.0 (10 April 2017).
49. With characteristic fairness, and observing Falk LJ’s reasoning, Ms Lecointe acknowledged that the Secretary of State remained unable to inform this panel as to the basis of the grant of ILR in 2017, namely under which paragraph of the Immigration Rules it was granted. Ms Lecointe accepted that such failure was a difficulty for the Secretary of State in this appeal as the applicable rules required Mr Hoti to be of “good character” and if he could not meet this requirement, discretion could be exercised in his favour. She accepted that the Secretary of State’s decision of 3 February 2018 was silent as to Mr Hoti having been granted settlement in the 2017 and the necessary implication of either his being accepted to be of good character, or discretion being exercised in his favour as to good character.
50. We observe that Mr Hoti’s evidence as to his parent’s having left Albania and secured residency in Italy not long after he left Albania was not challenged by the Secretary of State before the First-tier Tribunal. As Judge Shaerf concluded, at [75], the Secretary of State did not place into her decision the fact that in his true identity Mr Hoti was not removable to Albania at the time he was granted exceptional leave to remain because there were no suitable reception facilities in the country and his parents resided in Italy.
51. To the extent that the Secretary of State’s grounds address Judge Shaerf’s decision in respect of step 2, which the Judge correctly identified as a matter he was to consider on conventional public law grounds / Wednesbury principles, we consider Ms Lecointe to be correct in accepting that this ground is erroneously advanced by adopting a merits-based challenge. Observing the failure by the Secretary of State to place into her assessment her grant of settlement to Mr Hoti in 2017 and the relevance of this grant to her assessment of “good character”, we conclude that the First-tier Tribunal did not materially err in law when undertaking its consideration of step 2. The Judge gave cogent reasons for concluding that the Secretary of State’s decision was Wednesbury failure because of the failure to consider a material fact.
52. This ground is dismissed.
Step 3 – article 8 ECHR
53. Having considered the guidance in R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11; [2017] 1 WLR 823, and considered his findings of fact, the Judge concluded as to article 8 at [78] and [80]:
“78. ... The SSHD in the reasons for refusal adopted the same timetable as described in paragraph 14 of the judgment in Laci v. SSHD [2021] EWCA Civ 769. When this was put to the SSHD at the hearing, the Presenting Officer indicated that such matters can currently take some 18 months to reach the appeal stage. In this context the appeal stage would have to commence within 14 days of the SSHD’s decision being appealed. Having regard to the SSHD’s public acknowledgment of the number of outstanding applications remaining to be dealt with and its well-publicised current operational difficulties I find this to be a more likely estimate than the 12 weeks indicated at paragraph 34 of the reasons for refusal and paragraph 14 of Laci.
...
80. The appellant was effectively placed in limbo following the SSHD’s decision on 18 February 2013 to nullify his citizenship and to grant to him a residence permit for settlement. The appellant lost his job and his accommodation. He managed only because at the time his wife was working and able to support him and their child. Deprivation of citizenship would put the appellant back into limbo for what is likely to be a very extended period. It will be more difficult for the appellant and his family because his wife is currently unemployed and they now have three children. The consequences for the family of the appellant losing his employment and accommodation for a second time for much the same reason as he did in 2013 and the likely extended length of any limbo period and having regard to the length of time the appellant has been living in the United Kingdom, now in excess of 20 years, would be a sufficiently grave interference with his private and family life to engage the State’s obligations under article 8 of the European Convention.”
54. The Secretary of State’s challenge to the article 8 proportionality assessment is founded upon:
i. No reasons given as to why Mr Hoti’s wife could not secure employment and support the family.
ii. The public interest was diluted by reliance being placed upon her taking time to implement the decision under challenge.
iii. Paucity of reasons which enables the reader to understand why the delay was of significant weight.
55. As to i) above, we note that the wife’s evidence at [35] of the decision, including her concern as to her realistic ability to secure employment, was not challenged as she was accepted by the Secretary of State to be a credible witness. We consider this challenge as a point not taken by the Secretary of State before the First-tier Tribunal.
56. The remaining challenges are interlinked. In respect of delay, the Judge was focused on the limbo period running from when Mr Hoti will be deprived of his citizenship not, as the grounds suggest, the time taken to issue the latest decision to deprive, particularly in relation to time passing before the Supreme Court decision in Hysaj. Ms Lecointe properly accepted the difficulty the Secretary of State laboured under in respect of her challenge to the article 8 proportionality assessment consequent to her acceptance before Judge Shaerf that the expected limbo period for Mr Hoti was assessed to be eighteen months.
57. As Mr Jones pointed out, this was but one of several relevant findings made in respect of the proportionality assessment:
i. The Secretary of State failed to consider the consequences of the annulment proceedings on Mr Hoti and his family.
ii. The Secretary of State had the option to consider deprivation instead of annulment.
iii. The reality of the limbo period (18 months) as opposed to that specified in the Secretary of State’s refusal decision (14 weeks).
iv. The maintenance of integrity and reliability of the documentation generated for systems of immigration control and naturalisation;
v. The consequences for the family of the loss of Mr Hoti’s employment and accommodation in view of his wife’s unemployment and they now have 3 children;
vi. The gravity of interference in view of Mr Hoti having resided in the United Kingdom for in excess of 20 years.
vii. Issues arising under section 117A and 117B of the Nationality, Immigration and Asylum Act 2002 include the maintenance of immigration control and public interest; and Mr Hoti’s knowledge of English, employment and maintenance of himself and his family.
viii. The lack of challenge as to the nature and genuineness of Mr Hoti’s relationship with his wife and British citizen children.
ix. Mr Hoti’s long-established family and private life in this country.
58. Having weighed the evidence with care, and placed into his assessment the public interest, we are satisfied that the Judge properly directed himself and his conclusion as to proportionality was reasonably open to him.
59. The Judge did not materially err in law in respect of step 3.
60. This ground is dismissed.

Notice of Decision
61. The decision of the First-tier Tribunal sent to the parties on 16 November 2022 is not subject to material error of law.
62. The Secretary of State’s appeal is dismissed.

D O’Callaghan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 October 2025