Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-001890

First-tier Tribunal No: DC/50041/2022
LD/00241/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 9th of December 2025

Before

UPPER TRIBUNAL JUDGE JACKSON
and
UPPER TRIBUNAL JUDGE BLUNDELL

Between

OUSMANE DIABY
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Jay Gajjar and Ahmed Badar, instructed by Axis Solicitors
For the Respondent: Nicholas Wain, Senior Presenting Officer

Heard at Field House on 6 November 2025

DECISION AND REASONS

1. We issued our first decision in this appeal on 4 September 2025. We found that the First-tier Tribunal had erred in law in dismissing Mr Diaby’s appeal against the respondent’s decision to deprive him of his British citizenship on grounds of fraud. We ordered that the decision on the appeal would be remade in the Upper Tribunal. The remaking hearing took place before us on 6 November and this is our decision following that hearing.

Background

2. The appellant entered the United Kingdom in 2006. He entered as a French citizen, using a French passport, the number of which ended with the digits 404 (“passport 404”). The appellant lived and worked in the United Kingdom as a French citizen for a number of years.

3. On 21 June 2015, the appellant applied to naturalise as a British citizen. He stated that he was Ousmane Diaby, a French citizen of Gambian heritage who was born in Paris on 29 September 1980. He submitted passport 404 with that application. On 17 December 2015, the appellant was naturalised as a British citizen.

4. In 2018, the respondent was notified by the French authorities that an “unknown person” had fraudulently obtained a French passport and identity card in the identity of Ousmane Diaby, born on 29 September 1980. The numbers for an identity card and a passport were given. The passport was passport 404.

5. The respondent did not draw this to the appellant’s attention until 8 February 2021, when a letter was sent to his solicitors. There followed an exchange of communications which we need not rehearse; it suffices to note that the respondent sought confirmation of the appellant’s identity and nationality but the only additional evidence provided in response was a psychological assessment report by a psychologist named Kevin O’Doherty.

6. On 16 February 2022, the respondent decided to deprive the appellant of his British citizenship on the basis that he had obtained it by false representation. The letter is overlong but the essential conclusion was that the appellant had used a false identity and nationality when he applied for naturalisation and that he had provided fraudulently obtained documents in support of that application. He had been given opportunities to establish that he was a French national but had consistently failed to provide evidence in support of that assertion. The respondent concluded that he had obtained naturalisation by fraud and she decided in the exercise of her discretion to deprive him of his British citizenship.

Proceedings on Appeal

7. The appellant appealed to the First-tier Tribunal and his appeal was dismissed by Judge Scott, who rejected the appellant’s argument that the respondent’s evidence was insufficient to establish a case to answer and found that the respondent had been entitled on the evidence to conclude that he had been obtained by fraud. The proceedings and the judge’s conclusions were set out in greater detail in our first decision, at [7]-[12]. We need not repeat what we said there in this decision.

8. The appellant was granted permission to appeal to the Upper Tribunal. The single ground of appeal was that the judge had been wrong to conclude that there was a case to answer. The hearing was first listed in September last year but, for the reasons set out at [15]-[16] of our first decision, it was only in June this year that we heard final closing submissions.

9. We decided in our first decision that the FtT had not erred in law in concluding that the appellant had a case to answer: [54]-[63]. For reasons we gave at [28]-[33], however, we concluded that the judge had erred in law by directing herself in accordance with the law as it stood at the time, as the Upper Tribunal authorities on which she relied had been overruled by the Court of Appeal in Chaudhry v SSHD [2025] EWCA Civ 16; [2025] KB 395. We therefore directed that there should be a resumed hearing before the Upper Tribunal so that the appeal could be considered in accordance with the law as it now stands.

10. We had before us the core bundle of 428 pages which was provided for the earlier hearings; a supplementary bundle of 16 pages from the appellant and, from the respondent, an email from the French Embassy dated 10 January 2018. The advocates mounted no opposition to the late admission of this evidence. The parties had also filed updated skeleton arguments for the resumed hearing. The appellant had filed a supplementary bundle of authorities.

11. In refinement of the submissions made in the skeleton argument, Mr Gajjar indicated that he would not be making any submissions on the second or the fourth questions set out at [58] of Chaudhry v SSHD, which we set out below. Mr Gajjar also indicated that the appellant would not be attending the hearing to give oral evidence and as such, no freestanding Article 8 claim was pursued. In those circumstances, Mr Gajjar was content to accept our invitation to make his submissions first.

Submissions

12. For the appellant, Mr Gajjar noted that the Upper Tribunal had not expressly preserved any findings of fact made by the FtT. It had found that there was no error of law in the FtT’s decision to accept that the appellant had a case to answer but the entirety of the decision had been set aside. It was for the respondent to establish that the appellant had used fraud in his application for naturalisation. As the Upper Tribunal had accepted in its first decision, with reference to Ullah v SSHD [2024] EWCA Civ 201; [2024] 1 WLR 4055 and Chowdhury v SSHD [2025] EWCA Civ 36, that involved a three-stage enquiry.

13. In seeking to establish a prima facie case of fraud, the respondent now relied on three pieces of evidence: (i) the recently adduced email from the French authorities in 2018; (ii) the email exchange with the French authorities which was before the FtT, which also dated from 2018; and (iii) the witness statement from an official named Harry Wells. There was no Document Verification Report (“DVR”), although these were commonly provided in such cases. The process which had been employed by the French authorities, and the identity of the investigator, was wholly unclear as a result. The recent email seemingly referred to an attached report, but that had not been provided and the rest of the email was noticeably non-committal. The French authorities had offered to provide a witness statement but that had not been done. There was no witness from the French authorities. The Secretary of State had relied uncritically on what she had been told by the French authorities despite the fact that that evidence had “more holes than Swiss cheese”.

14. In the circumstances, the appellant’s case was that the respondent’s evidence was insufficient to establish a prima facie case of fraud and the appeal fell to be allowed for that reason.

15. In any event, Mr Gajjar submitted that there was an innocent explanation which addressed the respondent’s evidence. All that was required at that stage was an explanation which satisfied a minimum level of plausibility: Ullah v SSHD at [22] refers. The cogency of the respondent’s evidence was also relevant at this stage; the weaker the case to answer, the less it would take to cross the threshold. The appellant said in his witness statement that he is a French national who was born in France. He had relocated to Gambia and then back to France. He had used the services of an agent to obtain his French documents. He said that his French birth certificate had been retained by the French authorities.

16. Mr Gajjar accepted that there was no evidence of this beyond the appellant’s statement. He also accepted that we might permissibly draw an inference from the appellant’s absence but it was ultimately a question of weight. It was to be noted that he had previously attended the FtT on two occasions. Mr Gajjar accepted that the appellant had adduced no documentary evidence of his birth in France or his French nationality. The only evidence in that respect was the appellant’s statement and the identity documents which the French authorities had impounded. It was to be recalled that his father was dead and his mother was significantly unwell, and it was perfectly feasible that he had encountered some difficulty in obtaining evidence. Mr Gajjar accepted, however, that there was no evidence in support of either of those assertions. He noted that there was evidence of the appellant making contact with the French authorities with a view to obtaining a copy of his birth certificate.

17. In the circumstances, Mr Gajjar submitted that the appellant had adduced evidence which sufficed to satisfy the minimum level of plausibility. It was then for the respondent to establish on a balance of probabilities that the appellant’s explanation was to be rejected. The burden was not on the appellant. The respondent had not contacted the French authorities about the claim that they had retained the appellant’s birth certificate in 2005. Mr Wain sought in his skeleton argument to attach significance to the fact that the appellant had been found in a previous appeal to have contracted a marriage of convenience but that decision was reached on the papers and did not bear the weight suggested. It was to be noted that the appellant and his wife had remained together and now had two children, which tended to suggest that the judge was wrong in his conclusion.

18. In the event that the respondent prevailed on the first two questions posed by Chaudhry v SSHD (fraud and causation), the appellant submitted that the respondent had erred in concluding that deprivation was a proper course. The appellant had spent much of his adult life in the UK.

19. We noted that Mr Gajjar had not addressed us on the expert report of Rommel St Hill. We asked him what he had to say to Mr Wain’s submission that Mr St Hill is not an expert on French nationality law. Mr Gajjar took us to Mr St Hill’s profile on the Electronic Immigration Network and asked us to note that France was one of the countries listed on that page. Mr Gajjar submitted that the expert had wide-ranging experience and that he had set out the relevant provisions of French law. He had focused on the revocation of citizenship rather than the revocation of identity documents but the two issues went hand in hand. The proper procedural steps had not been taken. Whilst there might be some basis for the respondent’s submission that there was advocacy in the report, that did not mean that the contents as a whole fell to be rejected.

20. For the respondent, Mr Wain submitted that the evidence relied on by the Secretary of Statement was evidently sufficient to establish a prima facie case against the appellant. That was the conclusion of the FtT and it had been endorsed by the UT on appeal. The appellant’s criticisms of that evidence were unmeritorious. Mr Gajjar misunderstood the email which had first been adduced in this hearing; the “attached report” was not a reference to a separate document but to the un-italicised part of the email. The document provided more context than the evidence previously adduced.

21. We asked Mr Wain whether there had been any contact from the British authorities which prompted the French authorities to investigate the appellant’s claim to French nationality. He noted that the appellant’s wife had made visa applications in 2019 and 2021 but that this shed no light on the decision to investigate in 2018.

22. Mr Wain submitted that the three items of evidence on which the Secretary of State relied were easily sufficient to cross the first threshold in Ullah v SSHD. The French authorities had not spelt out how they knew that no-one called Ousmane Diaby had been born in the 20th arrondissement of Paris on 29 September 1980 but they did not need to do so. The evidence from the French authorities clearly related to the appellant as it gave the same numbers for the French identity documents and the same UK address.

23. At the second stage of the enquiry required by Ullah v SSHD, there was nothing of substance adduced by the appellant to provide an innocent explanation. The attempts he had made to obtain a copy of his birth certificate were half-hearted at best. He had not taken the obvious step of approaching the French Consulate, although he had apparently done so in 2015. The appellant had chosen not to attend the hearing to answer questions. There were obvious problems with his evidence. Firstly, he had given conflicting information about his father’s nationality, saying in the naturalisation application that his father was a Gambian national but saying in his response to the deprivation proceedings and his initial witness statement that his father was French. Secondly, the appellant said in his initial witness statement that he had obtained a French passport via an agency, whereas the response to the deprivation proceedings suggested that he had obtained the French birth certificate via an agency.

24. At the third stage of the enquiry, the tribunal should find that the Secretary of State had shown that the appellant’s innocent explanation should be rejected. The appellant’s actions in responding to the allegation were “significantly minimal” and amounted in reality to bare assertion. He had been legally represented throughout. Funds were evidently not an issue. He had worked as an investment banker and was plainly an intelligent person. The lack of evidence to show that he was a French national, or that he had been born in France, was highly relevant. Judge Ross’s decision that the appellant had engaged in a marriage of convenience was part of the factual backdrop, not least because that conclusion was also borne out of the appellant’s failure to provide evidence. The expert report was of no assistance; the expert had no experience of French nationality law. Even if the expert was properly described as such, the report took matters no further; the allegation was not that the appellant was not a French national, it was that the French identity documents had been fraudulently obtained. The advocacy in the report tainted it as a whole and no weight should be attached to it.

25. Mr Wain noted that the question of causation had been conceded by Mr Gajjar. He did not seek to amplify the written submissions he had made about the exercise of discretion at [48]-[51] of his skeleton argument.

26. Mr Gajjar responded briefly, and assisted by providing the appellant’s current address (which we had queried earlier in the hearing), which is in London E15. He stated that this is the address which the appellant uses “when he visits the UK” which suggested that the appellant was not usually resident in the UK. The decision that the marriage was one of convenience was a red herring. The passage of time and the birth of two children clearly showed that it was wrong. It was significant that there was no indication from the Secretary of State as to what prompted the investigations by the French authorities. The Secretary of State had undertaken no checks on the “safety” of the decisions reached by the French authorities and her deprivation decision amounted effectively to deprivation by proxy.

27. We reserved our decision at the end of the submissions. We are grateful to Mr Gajjar and Mr Wain for their submissions.

Legal Framework

28. There is no need to set out s40(3) or s40A of the British Nationality Act 1981, which provide respectively for the Secretary of State by order to deprive a person of their British nationality on grounds of fraud and for there to be a right of appeal against a decision to make such an order.

29. The leading authority on the proper approach in such an appeal is Chaudhry v SSHD, to which we have already referred. At [58] of his judgment in that case, Dingemans LJ (with whom Underhill and Edis LJJ agreed) summarised his conclusions in this way:

[T]he proper approach to appeals under section 40A of the BNA 1981 from decisions of the Secretary of State made pursuant to section 40(3) of the BNA 1981 is: (i) it is for the FTT to find, in the event of a dispute, as a fact whether there was fraud, false representation or concealment of a material fact for the purposes of section 40(3) of the BNA 1981; (ii) the decision of the Secretary of State on the causation issue whether the registration or naturalisation was obtained by the impermissible means is to be reviewed on appeal by the FTT on public law grounds, in accordance with the principles referred to by Lord Reed in paragraph 71 of Begum (No.1); (iii) the exercise of the Secretary of State's discretion to make an order depriving a person of citizenship status is to be reviewed on appeal by the FTT on public law grounds in accordance with the principles referred to by Lord Reed in paragraph 71 of Begum (No.1); and (iv) it is for the FTT to 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. Although due weight would need to be given to the findings, evaluations and policies of the Secretary of State, the decision was for the FTT …

30. It is agreed by the advocates before us that the first stage of that enquiry is to be conducted in accordance with the guidance given by Green LJ (with whom Lewison and Andrews LJJ agreed) at [22] of Ullah v SSHD:

The legal burden of proving that the Appellant acted dishonestly lies upon the Secretary of State. There is a three-stage process: (i) the Secretary of State first must adduce prima facie evidence of deception ("the first stage"); (ii) the Appellant then has a burden of raising an innocent explanation which satisfies the minimum level of plausibility ("the second stage"); and (iii), if that burden is discharged, the Secretary of State must establish on a balance of probabilities that this explanation is to be rejected ("the third stage").

31. Mr Gajjar sought to augment those submissions at [10] of his skeleton argument, by submitting that “the more serious an allegation, the stronger must be the evidence before a Court will find the allegation proved on the balance of probabilities”. But that submission takes no account of what was said by the Supreme Court in Re B (Children) (Sexual Abuse: Standard of Proof) [2008] UKHL 35; [2009] AC 11, and it is that decision which represents the final word on that subject.

Analysis

32. Adopting the staged approach immediately above, we find as follows.

A prima facie case of fraud?

33. We concluded in our first decision that there was “clearly enough evidence” before the FtT to establish a prima facie case of fraud. Despite Mr Gajjar’s valiant attempts to identify “holes” in that evidence, we remain firmly of the view that there was enough before the FtT (and still before us) to cross that initial threshold.

34. We are fortified in that conclusion by the email which was appended to Mr Wain’s skeleton argument. That is an email from the France Immigration Liaison Officer at the French Embassy in Knightsbridge, sent on 10 January 2018. The material parts of the email are as follows. (The formatting and redaction is in the version appended to Mr Wain’s skeleton but we have omitted the parts in square brackets, relating as they do to the appellant’s address and other such details):

STARTS
The document numbered as highlighted in the attached report has been fraudulently obtained by a person unknown and the person detailed does not exist or The document numbered as highlighted in the attached report has been fraudulently obtained by a person unknown but the person detailed does exist.
The French Embassy in the UK can provide a witness statement for prosecution purposes if required. Contact:
………………………………………..
France Immigration Liaison Officer - Officier de liaison immigration Home Affairs Dept - Service de l'Attaché de Sécurité Intérieure French Embassy - Ambassade de France 58, Knightsbridge LONDON SW1X 7JT UNITED KINGDOM Tel. ……………………… ………………………..
ENDS

- Ousmane DIABY dob 29.09.1980 in Paris 20e

Use of false identity (investigations proved that the birth certificate presented was false and that no one by this name was born at this date in this town)
4 ID fraudulently obtained:
ID 051069102267 and Passeport 05HI20404 (both validity expired)

Still in use: ID 1511LON00176 and Passport 15CT84117 (Both cancelled due to the discovery of the fraud)

Details given to the consulate in 2015:
[XXX] London E9 6BN
Cell phone [XXX] 304

35. Mr Gajjar made various criticisms of the evidence adduced by the respondent. There is no evidence of the way in which the French authorities established that no one by the name of Ousmane Diaby was born in the 20th arrondissement of Paris on 29 September 1980. The identity of the person who made those enquiries or reached that conclusion has never been revealed, nor has the reason that such enquiries were made in the first place. There is no Document Verification Report in which details such as these might often be provided.

36. We accept all of those points, but they take the appellant nowhere, even bearing in mind as we do that the burden is on the Secretary of State to establish a prima facie case. The evidence shows that the French authorities believe that no one by the appellant’s name was born in the 20th arrondissement of Paris on 29 September 1980. It was not necessary for the French authorities to show their “workings out” in order for this evidence to be deserving of weight. The French authorities can be relied upon to check and confirm the birth records which will obviously be available to them, just as they would be available to the British authorities. There was no need for there to be a Document Verification Report, or for the investigator to be identified or to attend the tribunal to give evidence.

37. That conclusion caused the French authorities to retain the four documents described above (two of which were handed to the Presenting Officer at the FtT). They specifically stated that the documents had been “fraudulently obtained”. That information directly contradicts the information the appellant provided to the Secretary of State in his application for naturalisation, and obviously establishes a prima facie case that the appellant provided false information in that application. That information is clearly sufficient to call for an explanation from the appellant.

An innocent explanation?

38. At the second stage of the enquiry, the appellant states that he has an innocent answer to the respondent’s evidence. We take that from [7] of Mr Gajjar’s original skeleton argument. The appellant believes that he is a French national. His late father was a French national. The appellant’s parents told him that he was born in Paris and the family relocated to The Gambia for a short while, when the appellant was a toddler, before moving back to France in 2005. The appellant states that his French birth certificate was obtained through an agency, and what was obtained was a certified copy of his French birth certificate. If there was deception, the appellant “cannot sensibly be deemed to be the architect of the false information” and he obtained a French passport without difficulty. In other words, if there was a problem of some description, the appellant knows nothing of the reasons for that problem.

39. It is necessary to recall two aspects of the context. The first aspect is that we are concerned in this case with the French authorities. Had the appellant wanted to do so, he could easily have made contact with the French authorities in order to provide evidence in response to the Secretary of State’s decision. We are not here concerned with a hostile or persecuting state, or even with one that is geographically distant. The appellant could easily have engaged with the French authorities, either via the French Consulate or, if he preferred, by travelling to Paris and making enquiries.

40. The second aspect is that the appellant is a highly intelligent man who is not impecunious and who has been legally represented throughout. His current solicitors have been assisting him since the Secretary of State first initiated deprivation consideration in 2021. Had the appellant wished, he could readily have instructed French lawyers to undertake investigations, make representations or even to take legal action against the French authorities. He has taken no such step. Mr Gajjar sought to attach some significance to the appellant’s family circumstances – his father is said to have died in 1999 and his mother is said to be blind and has had one leg amputated. There is no evidence of any of that. But, in any event, the appellant is not dependent on his mother for assistance in this regard. He is an intelligent man of means who has had over four years to respond with evidence to the respondent’s case.

41. The only step which the appellant has actually taken is to send an email (the contents of which are not before us) to info@votre-acte-enligne.com in 2021. We note that the website in question describes itself as being “an independent service providing assistance in applying for civil status documents” but we are prepared to assume that it was a relevant organisation for these purposes. The response was sent to the appellant on 15 July 2021 and was in the following terms (the emboldening is in the original):

Dear Ousmane Diaby,

Thank you for your request.

We hereby wish to inform you that your request for a birth certificate could not be processed online.

We apologise for any inconvenience this may cause you.

The amount has been refunded in accordance with our terms and conditions since your request could not be processed.

The amount has already been refunded to the same credit/debit card used to make the payment and no further action is required. Please note that this transaction can take up to 10 days depending on your bank.

Yours sincerely,
Customer Service

42. The response was therefore that the request could not be processed online and not that it could not be processed for any other substantive reason, the appellant simply did not approach the organisation in the right way.

43. The appellant has made no contact with the French authorities since then. We are bound to observe that we find that quite extraordinary. Were the appellant an innocent man accused of deceiving the French and British authorities, we consider that he would have made further enquiries of the French authorities, either in person or with the assistance of a French lawyer. The fact that he has done no such thing rather suggests that he has no innocent explanation and no prospect of establishing that he is in fact a French national called Ousmane Diaby.

44. It is also a matter of concern that the appellant chose not to attend the hearing and gave no explanation for the same. We were informed by Mr Gajjar that he is abroad, but that he retains a property in the UK for when he “visits” this country. He could have attended the hearing to answer questions from Mr Wain but he chose not to do so.

45. As Mr Wain noted in his submissions, there are inconsistencies in the appellant’s evidence. We mention only those on which Mr Wain specifically alighted, although we have noted others in the evidence. There is an inconsistency as to the appellant’s father’s nationality, with the appellant stating in his application for naturalisation that his father was Gambian, whereas his solicitors stated in their letter of 9 June 2021 that the appellant’s father was French. There was also an inconsistency over whether an agency assisted the appellant to obtain his birth certificate or his passport. There are clearly difficulties with the appellant’s account but his absence from the hearing meant that those difficulties could not be explored with him.

46. Of course, the fact that a party or a witness chooses not to attend a hearing to face cross-examination is not a reason to reject their evidence out of hand. But this is a case in which there were highly relevant matters which could properly have been explored with the appellant, particularly as he had chosen not to address any of those raised before the hearing in any further written statement. The inconsistencies identified by Mr Wain could have been put to him and the truthfulness of the account which we have summarised at [38] above could have been explored. He could have been asked about the decision that he has made over the course of the last four years not to make any contact with the French authorities. Ultimately, we would have been able to take a view on the likelihood that the appellant honestly believed that he was Ousmane Diaby born on 29 September 1980 in the 20th arrondissement of Paris when he completed his application for naturalisation. Having chosen not to attend the hearing, the appellant has deprived us of the opportunity to see his evidence tested, and we do consider that to be a significant impediment to him crossing the modest threshold at the second stage of the three-stage test from Ullah v SSHD.

47. It is submitted at [13] of the appellant’s current skeleton argument that we should attach weight to the expert report of Rommel St Hill but there are two fundamental problems with that report.

48. Firstly, recalling that questions of foreign law are matters of fact which are to be proved by evidence, we do not accept that Mr St Hill is qualified to provide expert evidence on French law, nor specifically in French nationality. His qualifications and experience are impressive on any view, but not in that area. We note, for example, that he served as the Assistant Solicitor General of Guyana and that he has worked in various senior legal roles in the Caribbean and also in Mauritius. The difficulty, however, is that he has no apparent expertise in French nationality law. That point was taken squarely by Mr Wain in his skeleton argument.

49. When Mr Gajjar came to make his oral submissions, he made no reference whatsoever to Mr St Hill’s report. Concerned that he might have overlooked the report because he had fielded a number of questions from the bench, we asked him whether he wanted to respond to Mr Wain’s criticism of the report. Mr Gajjar responded by drawing to our attention the fact that Mr St Hill lists France as one of his countries of expertise on his profile on the Electronic Immigration Network. We asked whether there was anything else which was capable of showing that Mr St Hill was an expert on French nationality law specifically. All that Mr Gajjar was able to say was that Mr St Hill has wide ranging experience and that he had set out the relevant provisions of French law.

50. As Mr Gajjar evidently understood, the fact that Mr St Hill lists a country in his online profile does not mean that he is qualified to provide expert evidence about it. We know that Mr St Hill is an attorney of eighteen years’ standing, and we can see from his CV that he has worked in a number of impressive roles around the world. But there is nothing before us to suggest that he is qualified to practice law in France, or that he has any experience of French law whatsoever. We can see from his report that he has undertaken some research into French law but we do not know whether he has the necessary knowledge of the French legal system or, for that matter, the French language.

51. The second difficulty with Mr St Hill’s report is that it focuses on the acquisition and deprivation of French nationality, whereas that is not what this case is about. The French authorities’ stance is that the appellant was not born in Paris in 1980 because they have no record of that birth. They have consequently impounded the four identity documents which were previously issued to him. There is no suggestion that he has been deprived of French nationality and everything said in Mr St Hill’s report about the process for revocation of nationality is simply irrelevant. Mr St Hill proceeds, inexplicably, on the basis that the appellant “was born in France, and hence prima facie benefits from the operation of French nationality law” but that is to assume the very fact which is at the heart of the dispute between the parties in this case.

52. In the circumstances, we do not feel able to attach any weight to Mr St Hill’s report.

53. We take a step back, therefore, and consider the appellant’s response to the prima facie case established by the Secretary of State. For the reasons given above, we consider there to be fundamental difficulties with his account. He says that he knows nothing about any irregularities in the process by which his French documents were obtained but he chose not to attend the hearing to have his evidence tested. Despite his obvious intelligence and his ready access to legal advice, he has not sought to contact the French authorities with a view to contesting their assertions or obtaining evidence from them to counter the case again him. For all of those reasons, we do not accept that the appellant raised an innocent explanation which satisfies the minimum level of plausibility. We accept that that is a modest threshold but the appellant’s essential silence in response to the Secretary of State’s case is stark.

54. In these circumstances, it is not necessary to go on to consider the third stage if the burden was discharged, as to whether the Secretary of State can establish on the balance of probabilities that the appellant’s explanation is to be rejected. However, if we are wrong in our conclusion on the second stage, the same reasoning would apply equally to any consideration of the third stage and we would inevitably also have found that the respondent had established that the appellant had acted dishonestly on the balance of probabilities.

55. We remind ourselves that a finding of dishonesty in the application for naturalisation is needed so as to justify deprivation: Ullah v SSHD, at [28]. We also remind ourselves that this must be resolved by the application of the two-stage test which Green LJ then borrowed from the Northern Ireland Court of Appeal in LLD v SSHD [2020] NICA 38:

When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.

56. In our judgment, the appellant was aware when he completed his naturalisation application that he was not born in Paris on 29 September 1980. We think it is more likely than not that he has known that all along, and that he knew that he was not entitled to any of the French documents identified at the start of this judgment. Each of those documents was issued to Ousmane Diaby, born in Paris on 29 September 1980, yet no one by that name was born in Paris on that date. We do not accept that the appellant genuinely believed that he was entitled to the French documents, and we find that he misrepresented the facts when he made his application for naturalisation. By the standards of ordinary decent people, the appellant’s choice to misrepresent the facts was dishonest.

57. In the circumstances, we find as a fact that the appellant practiced fraud and made false representations in his application for naturalisation.

Causation

58. We have recorded above that Mr Gajjar made no oral submissions on the question of causation (i.e. whether the naturalisation was obtained by means of the fraud) and we answer that question in the Secretary of State’s favour. Applying the public law test which we must in light of Chaudhry v SSHD, we find that it was open to the Secretary of State to reach the conclusion she did in that respect.

Discretion

59. The remaining submission which Mr Gajjar did make, albeit rather briefly, is that the respondent erred in the exercise of her discretion. As is made clear in [58] of Chaudhry v SSHD, that question is also to be considered on public law grounds. The appellant’s latest skeleton argument refers to his original skeleton argument in this regard. We have therefore taken account of the matters set out at [11] of the original skeleton argument, which concern the appellant’s residence in the UK since 2006, his education here, his extensive and impressive employment history in the financial sector, the absence of criminal convictions, and his two British children, who live with their mother (then in Gambia). We have also reminded ourselves of the Psychological Assessment Report which was presented to the respondent before she took the decision under appeal.

60. In considering the appellant’s length of residence and his ties to the UK, however, we note that he has not been continuously residence since 2006 and, as Mr Gajjar clarified at our request, he is not living in the UK at present. He said that the appellant had been living in the UK between November 2006 and January 2020 and had been “in and out” of the UK since then. His wife and children do not appear to have resided with him in the UK at any point. She has previously made unsuccessful entry clearance applications, the last of which (in 2021) was from Saudi Arabia. She holds Saudi and Gambian nationality, and she appears to reside in Saudi Arabia with the children. The appellant was said to be residing with them in Saudi Arabia when she made the 2021 application.

61. As the Court of Appeal emphasised in SSHD v Daci [2025] EWCA Civ 18, it is necessary to give deprivation decisions such as the one under appeal a fair reading. It is also necessary to recall what was said by Leggatt LJ (as he then was) at [19] of KV v SSHD [2018] EWCA Civ 2483; [2018] 4 WLR 166:

Where, as in the present case, it is established not only that deception was used but that, without it, an application for naturalisation as a citizen would not have been granted, it seems to me that it will be an unusual case in which the applicant can legitimately complain of the withdrawal of the rights that he acquired as a result of naturalisation. That is because the withdrawal of those rights does no more than place the person concerned in the same position as if he had not been fraudulent and had acted honestly in making the application.

62. Adopting the approach from the authorities, we consider the respondent’s decision to be unassailable on public law principles. She was clearly cognisant of the fact that she was exercising a discretion, since that is what she said at [35]. She was conscious of the need to take all material factors into account, since she listed all of the representations made by the appellant in the same paragraph.

63. In concluding that “deprivation would be both reasonable and proportionate” the respondent turned her mind to the loss of British identity [36]-[38]; section 55 of the Borders, Citizenship and Immigration Act 2009 and the impact on the appellant’s children [39]. There was also reference in the letter to the psychological assessment and to the appellant’s “strong private life” in the UK: [18]-[19] and [31]-[32]. There can be no doubt that all of these matters were taken into account by the respondent. It was undoubtedly rational for the Secretary of State to exercise her discretion and to conclude that it was proper for her to deprive the appellant of that which was obtained by fraud because none of the countervailing considerations outweighed that concern.

Conclusion

64. As Mr Gajjar did not seek to develop any Article 8 ECHR submissions before us, the conclusions we have reached above require us to dismiss the appellant’s appeal.

Notice of Decision

The First-tier Tribunal’s decision having been set aside, we remake the decision on the appeal by dismissing it.

Mark Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

5 December 2025

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-001890

First-tier Tribunal No: DC/50041/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE JACKSON
and
UPPER TRIBUNAL JUDGE BLUNDELL

Between

OUSMANE DIABY
Appellant
and

THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Gajjar and Mr A Badar, instructed by Axis Solicitors
For the Respondent: Mr N Wain, Senior Presenting Officer

Heard at Field House on 5 June 2025

DECISION AND REASONS

1. The appellant appeals with the permission of UTJ Bruce against the decision of First-tier Tribunal Judge Scott. By her decision of 19 April 2023, Judge Scott dismissed the appellant’s appeal against the respondent’s decision to deprive him of his British citizenship on the basis that he obtained that citizenship by false representation.

Background

2. The appellant entered the United Kingdom in 2006. He entered as a French citizen, using a French passport, the number of which ended with the digits 404 (“passport 404”). The appellant lived and worked in the United Kingdom as a French citizen for a number of years.

3. On 21 June 2015, the appellant applied to naturalise as a British citizen. He stated that he was Ousmane Diaby, a French citizen of Gambian heritage who was born in Paris on 29 September 1980. He submitted passport 404 with that application. On 17 December 2015, the appellant was naturalised as a British citizen.

4. In 2018, the respondent was notified by the French authorities that an “unknown person” had fraudulently obtained a French passport and identity card in the identity of Ousmane Diaby, born on 29 September 1980. The numbers for an identity card and a passport were given. The passport was passport 404.

5. The respondent did not draw this to the appellant’s attention until 8 February 2021, when a letter was sent to his solicitors. There followed an exchange of communications which we need not rehearse; it suffices to note that the respondent sought confirmation of the appellant’s identity and nationality but the only additional evidence provided in response was a psychological assessment report by a psychologist named Kevin O’Doherty.

6. On 16 February 2022, the respondent decided to deprive the appellant of his British citizenship on the basis that he had obtained it by false representation. The letter is overlong but the essential conclusion was that the appellant had used a false identity and nationality when he applied for naturalisation and that he had provided fraudulently obtained documents in support of that application. He had been given opportunities to establish that he was a French national but had consistently failed to provide evidence in support of that assertion.

The Appeal to the First-tier Tribunal

7. The appellant appealed against the respondent’s decision to the First-tier Tribunal, and his appeal was first listed before Judge Scott on 18 January 2023. The appellant was represented by Mr Gajjar. The respondent was represented by Ms Hogben, a Presenting Officer.

8. The hearing was adjourned part-heard upon the appellant stating in his oral evidence that the respondent was wrong in the deprivation decision to suggest that his passport had been impounded by the French authorities. He produced copies of a passport and a French identity document. That caused the Presenting Officer to seek an adjournment so that further enquiries could be made of the French authorities. The judge granted that application despite Mr Gajjar’s opposition.

9. The hearing resumed on 17 April 2023, when the appellant completed his evidence and the judge heard submissions from the advocates, after which she reserved her decision.

10. The judge’s reserved decision was issued on 19 April 2023. At [19], she directed herself that there were three issues before her, which she described in the following way:

(a) Was the respondent entitled to conclude the relevant section 40(3) condition precedent exists?

(b) What is the impact of the reasonably foreseeable consequences of deprivation upon the applicable Article 8 rights?

(c) Discretion

11. In the carefully structured analysis which followed, the judge resolved each of those questions adversely to the appellant. She rejected Mr Gajjar’s submission that the respondent had failed to establish a prima facie case of fraud by reference to an email dated 2 March 2018 and a witness statement from an official named Harry Wells: [22]-[28]. The judge noted that the appellant had not provided any documentary evidence to rebut the respondent’s case and that an email from the French authorities was merely an automatically generated response: [29]-[30]. At [31], she concluded as follows:

I accept, in part, Mr Gajjar’s submission that the evidence relied on by the respondent could have been better. That being said, I must consider whether she has satisfied the burden on her on the balance of probabilities. On the evidence before me, and for the reasons given, I am satisfied that she has and as such, that the condition precedent is met.

12. At [32]-[34], the judge found that deprivation of citizenship would not be in breach of Article 8 ECHR. At [39]-[40], the judge found no error in the respondent’s consideration of the discretion in s40 of the British Nationality Act 1981. She therefore dismissed the appeal.

The Appeal to the Upper Tribunal

13. Permission to appeal was refused by the First-tier Tribunal. The appellant renewed his application before UTJ Bruce. There was a single ground of appeal, which was that the judge had reached an irrational conclusion in deciding that there was a case for the appellant to answer because the respondent’s evidence was incapable of discharging the initial evidential burden upon her.

14. Judge Bruce considered the grounds of appeal to be arguable and granted permission.

15. The appeal was first listed to be heard before us on 24 September 2024. At that hearing, UTJ Blundell invited the advocates to consider whether the tribunal was prohibited by the Foreign Act of State Doctrine from considering the lawfulness of the French authorities’ decision to declare that the appellant was not a French national and to impound his passport. We provided Mr Gajjar and Mr Wain with copies of Maduro Board of the Central Bank of Venezuela v Guaido Board of the Central Bank of Venezuela [2021] UKSC 57; [2023] AC 156. The advocates applied jointly to adjourn the hearing so that they could consider that question. Skeleton arguments directed to that question were duly filed and the matter was listed to be heard on 9 December 2024.

16. We had initially decided to proceed with the hearing on 9 December 2024 despite the fact that we were aware that the appeal in Chaudhry v SSHD had been heard on 3 December 2024 and that judgment was awaited. During the course of the hearing, however, we were informed that the respondent had conceded before the Court of Appeal that the tribunal was required in an appeal against a decision taken under s40(3) BNA 1981 to consider the “precedent fact” question for itself. Having heard some argument by that stage, we decided to adjourn the appeal part-heard to await the guidance which was to be given by the Court of Appeal.

17. The judgment in Chaudhry v SSHD [2025] EWCA Civ 16; [2025] KB 395 was handed down on 17 January 2025. Dingemans LJ (with whom Edis and Underhill LJJ agreed) agreed with the Secretary of State’s concession that it was for the tribunal to find whether there had been fraud (etc) in the application for naturalisation. The court also concluded that the respondent was correct to submit that the materiality of any fraud and the respondent’s exercise of discretion were to be reviewed on public law principles. It was then for the tribunal to consider for itself whether deprivation would be in breach of other legal obligations, including those arising under the Human Rights Act 1998.

18. Additional skeleton arguments were then filed by the parties. The respondent accepted in her skeleton argument that the First-tier Tribunal had misdirected itself in adopting a public law approach to the precedent fact question. She submitted, however, that Foreign Act of State doctrine was applicable, and that the lawfulness of the French authorities’ actions were not justiciable before the tribunal. Any error was said to be immaterial for that reason, and in any event because the judge’s findings of fact were dispositive. The appellant adopted the contrary stance, submitting that the FtT’s misdirection was material because the doctrine was of no application and the findings of the FtT were inadequate. We therefore directed that the appeal would be listed for a further hearing at which the competing submissions could be considered.

19. The appeal came before us again on 5 June 2025. Mr Gajjar and Mr Badar represented the appellant, and Mr Wain represented the respondent. We had two skeleton arguments from each party, for the reasons we have already explained. There was a consolidated bundle of 428 pages and an authorities bundle of 1007 pages.

20. We asked Mr Wain to make his submissions first. He submitted that the sole ground of appeal was unmeritorious, for three reasons. Firstly, it was not for the respondent to establish a prima facie case of fraud first, and the authorities which tended to suggest as much no longer applied. What was said at [22] of Ullah v SSHD [2024] EWCA Civ 201; [2024] 1 WLR 4055 was obiter, and Chaudhry v SSHD merely required the tribunal to consider all of the evidence adduced on both sides in deciding the precedent fact question for itself. That was the approach adopted by the First-tier Tribunal and the analysis was a sustainable one despite the judge’s self-directions being at odds with Chaudhry v SSHD.

21. Secondly, even if Mr Gajjar was correct to submit that what was required was a three-stage approach to the consideration of fraud, the respondent’s evidence before the FtT had plainly been sufficient to discharge the evidential burden. Notably, he submitted, there had been no request to cross-examine Harry Wells, the maker of the statement on which the respondent had relied. The judge had been entitled in the circumstances to find that the evidential burden had been discharged and then to note the absence of any evidence adduced by the appellant to counter the case against him.

22. Thirdly, and in any event, the lawfulness of the actions of the French authorities was not justiciable because the Foreign Act of State doctrine applied. The actions of the French authorities were not justiciable before the tribunal.

23. Mr Gajjar responded, submitting that the three-stage approach to the assessment of fraud in Ullah v SSHD was binding on the tribunal. Ullah v SSHD was not the last word on the subject – the same approach had been adopted in Chowdhury v SSHD [2025] EWCA Civ 36. The judge had reached an irrational conclusion on the question of whether the respondent had established a prima facie case of fraud.

24. There was no actual or implicit challenge to the actions of the French authorities on the facts, and the Foreign Act of State doctrine was accordingly of no application. The appellant did not allege that the actions of the French authorities were unlawful, and the FtT was not called upon to consider that question. The decisions and actions of the French authorities could be respected by the FtT, indeed those actions could be taken as the starting point of the analysis which was still required by s40A of the BNA 1981. The appellant was still permitted within the context of that analysis to adduce evidence in his defence against the deprivation of citizenship.

25. It had been submitted by the respondent that the analysis of the FtT accorded in substance with what was required by Chaudhry v SSHD but that submission did not withstand scrutiny. Paragraphs [19], [24] and [31] of the FtT’s decision showed that the judge had adopted a public law review approach to the precedent fact question. The judge would not inevitably have reached the same conclusion with the benefit of Chaudhry v SSHD.

26. We asked Mr Wain to reply to the submission that the three-stage approach to the consideration of fraud allegations was binding on the tribunal. He accepted, in light of Chowdhury v SSHD, that it was.

27. We reserved our decision at the conclusion of the submissions.

Analysis

(i) Did the FtT err in its consideration of the precedent fact question in s40(3) BNA 1981?

28. The FtT determined this appeal on 19 April 2023. At that stage, the Upper Tribunal had considered the impact of R (Begum) v SIAC [2021] UKSC 7; [2021] AC 765 on appeals against s40(3) deprivation decisions in two reported cases: Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238, [2021] Imm AR 1909 and Berdica (Deprivation of citizenship: consideration) [2022] UKUT 276 (IAC). The headnote to the second of those decisions stated that it was for an appellant to establish “that the Secretary of State could not now take the same view” on the question of whether an appellant had practised deception in his application for naturalisation, thereby reflecting what was thought at the time to be the reviewing function of the FtT in appeals of this nature.

29. The full merits assessment of the precedent fact question which is required by [58] of Dingemans LJ’s judgment in Chaudhry is a different approach to that required by Berdica, Ciceri and Chimi (deprivation appeals; scope and evidence) [2023] UKUT 115 (IAC); [2023] Imm AR 1071, and that line of Upper Tribunal authority was expressly disapproved by the Court of Appeal in that respect.

30. In the instant appeal, the judge in the FtT directed herself meticulously, in accordance with the law as it stood at the time. Chimi had not been reported by that stage but she cited Berdica at [24] and the way in which she framed the first of the issues – “Was the respondent entitled to conclude…” - was clearly informed by what was said in the Upper Tribunal decisions. Notwithstanding that accepted misdirection, Mr Wain submits that the judge’s assessment was compliant with what was subsequently said in Chaudhry v SSHD because she reached her own conclusion on the evidence, rather than applying a public law review to the respondent’s conclusions.

31. We accept that there are aspects of the judge’s decision which support Mr Wain’s submission. The conclusion which the judge expressed at [25] was expressed in a way which potentially suggested that she had considered the precedent fact question for herself:

I am satisfied that in making his application for naturalisation, the appellant used fraud/false representations.

32. The analysis which followed, at [26]-[30], was expressed in a way which might also suggest that the judge had considered the evidence for herself, rather than considering whether the respondent’s conclusion was one which she had been entitled as a matter of law to reach. The ultimate conclusions at [30] and [31] were also expressed in terms which might have suggested that the judge’s assessment had been a ‘full merits’ one, rather than a review of the kind required by the Upper Tribunal authorities. At [31], the judge found in terms that the evidence was sufficient to discharge the burden of proof on the respondent. That is not a mode of expression which aligns clearly or at all with the approach required by the Upper Tribunal authorities. As Mr Wain submitted, a conclusion expressed in that way might suggest that the tribunal has considered the question for itself.

33. Given the judge’s express self-direction, and given the way in which she framed the issues for consideration, however, we cannot be sure that the judge considered the precedent fact question on its merits, rather than considering the very different question posed by the Upper Tribunal authorities. We therefore agree with Mr Gajjar that the judge misdirected herself in law and that the finding she reached on the precedent fact question cannot stand. Whether that error of law is material to the outcome depends on our resolution of the competing submissions on the Foreign Act of State Doctrine. If Mr Wain succeeds in that respect, then the dismissal of the appeal was an inevitability because its subject matter was not justiciable. It is therefore to that issue which we must turn.

(ii) Was the FtT’s error immaterial because the Foreign Act of State doctrine applied?

34. The actions of the French authorities in this case were described in two documents which were before the First-tier Tribunal. Given their importance to the resolution of this issue, it is necessary to set those documents out in full.

35. The first document was an internal Home Office email dated 2 March 2018, which was materially as follows:

Information received from the French Consulate in London that an unknown person obtained French passports and identity cards fraudulently in the identity of Ousmane Diaby, born 29/09/1980.

Diaby has subsequently been naturalised as a British citizen and has obtained a British passport.

French documents numbered x267 and x404 have been fraudulently obtained by an unknown person.

The French Embassy in the UK can provide a witness statement for prosecution purposes if required.

36. The email ended by providing the contact details of a named Commandant in the French police force based at the French Embassy in Knightsbridge. The second item on which the respondent relied was the witness statement from Harry Wells, an International Liaison Office within the Home Office’s International Operations at the British Embassy in Paris since May 2022. That witness statement contained the following:

On 06/02/2023, HOIO Paris received a request from a Senior Executive Office (SEO) from the Appeals Litigation and Admin Review (ALAR) on behalf of a Higher Executive Office (HEO) from the Status Review Unit (SRU) Deprivations Team 2. The request related to a deprivation of citizenship for an individual who was believed to have obtained French documents fraudulently and used them to obtain British nationality. The French documents were in the identity of Ousmane Diaby, born 29 September 1980 in Paris. Two French passports; respectively numbered x404 and x117, and two French identity cards, respectively numbered x267 and x176 had been identified. The individual denied all knowledge of wrongdoing and produced copies of French identity card x176 and French passport x117 as evidence of his identity. The request was to:

(i) Verify with the French authorities if French identity card x176 and French passport x117 are valid documents and genuinely issued to Ousmane Diaby.

(ii) Provide the results to the Senior Executive Officer (SEO) from the Appeals Litigation and Admin Review (ALAR) and to the High Executive Officer from the Status Review Unit (SRU) Deprivations Team 2.

On 23/02/2023, HOIO Paris sent a request to their reliable point of contact within the French authorities to obtain this information.

On 23/02/2023, the French authorities responded to HOIO Paris stating that the French identity card x176 and French passport x117 had been issued in the identity of Ousmane Diaby but had since been revoked. The French authorities states that the documents had been revoked – without providing dates of revocation – because they had been obtained fraudulently.

This information was relayed to the Senior Executive Officer (SEO) from the Appeals Litigation and Admin Review (ALAR) and to the Higher Executive Officer (HEO) from the Status Review Unit (SRU) Deprivations Team 2 on 24/02/23.

37. Rule 20 of Dicey, Morris & Collins on the Conflict of Laws (16th Edition) (“Dicey”) provides that:

English courts have no jurisdiction to entertain an action:
(1) for the enforcement either directly or indirectly, of a penal, revenue or other public law of a foreign State; or
(2) founded upon an act of State.

38. When this appeal was initially listed before us, we were concerned that clause 2 of that Rule might apply in the instant case, in which the appellant might be thought to contend that the actions of the French authorities, which precipitated those of the Home Secretary, were unlawful. Having now received considered submissions from Mr Gajjar and Mr Wain on the issue, however, we are satisfied that the Rule is of no application in this case. We have reached that conclusion for the following reasons.

39. As explained at paragraph 8-030 of Dicey, the principle in the second clause of the Rule was concisely expressed by Chief Justice Fuller, giving the judgment of the United States Supreme Court in Underhill v Hernandez 168 US (1897). He said that

Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory.

40. That statement was cited with approval by the Court of Appeal in Luther v Sagor [1921] 3 KB 532 and Princess Paley Olga v Weisz [1929] 1 KB 718. More recently, the broad principle was said in Kireeva v Bedzhamov [2024] UKSC 39; [2025] AC 812 to be that:

In general, courts in this jurisdiction will normally recognise and will not question the lawfulness or validity of a foreign state's executive and legislative acts within its territory, including acts affecting all kinds of property situated in its territory at the material time.

41. The scope of the principle has been considered judicially in a large number of international decisions. We need not attempt to repeat the comprehensive survey of the authorities which was undertaken by the Court of Appeal of the Dubai International Financial Centre Courts at [154]-[265] of Korek Telecom Company LLC & Ors v Iraq Telecom & Anor [2024] DIFC CA 016. In the interests of brevity, it suffices at this stage to focus on one domestic authority.

42. Belhaj v Straw [2017] UKSC 3; [2017] AC 964 concerned claims that the British government had been complicit in torts, including unlawful detention, rendition and torture, allegedly committed by other states in overseas jurisdictions. It was contended by the British government that the English courts had no jurisdiction to hear claims that the UK had been complicit in torts allegedly committed by other states in overseas jurisdictions. Those claims were said by the government to be non-justiciable by reason of state immunity or the doctrine of Foreign Act of State. Both submissions were rejected by the Supreme Court. We need not say anything about the resolution of the first.

43. In relation to the doctrine, the overall effect of the lengthy judgments of the majority was that the concept of a foreign act of state should be disaggregated and approached at a more particular level of enquiry. Three types of act of state were established in the domestic authorities:

(1) The court will recognise and will not question the effect of an act of a foreign state’s legislation or other laws in relation to any acts which take place or take effect within the territory of that state.

(2) The court will recognise, and will not question, the effect of an act of a foreign state’s executive in relation to acts which take place or take effect within the territory of that State if the acts relate to property (and not personal injuries or death) within that state and are lawful under the law of that state (it being unnecessary to decide whether the same result flows if the acts are unlawful.

(3) An English court will refrain from resolving issues which are inappropriate for the court to resolve because they involve a challenge to the lawfulness of the act of a foreign state which is of such a nature that a municipal court cannot or ought not to rule on them, such as dealings between sovereign states, including making war and peace, making treaties with foreign sovereigns, and annexation and cession.

44. In the instant case, as Mr Wain recognised, it is only the third of those rules which is potentially of application. Mr Gajjar is necessarily correct in the submissions made at paragraphs 21.1 and 21.2 of his first skeleton argument: there is no question raised by the appellant in this appeal about the effect of an act of French legislation or other laws, nor does this case raise a question about acts relating to property. The question, therefore, is whether the tribunal should refrain from resolving issues which are inappropriate for it to resolve because they involved a challenge to the lawfulness of the act of a foreign state which is of such a nature that it cannot or ought not to rule on it. As was explained in Belhaj v Straw, however, whether an issue is non-justiciable under the third rule falls to be considered on a case-by-case basis and considerations of separation of powers and of the sovereign nature of foreign state or inter-state activities may lead to a conclusion that an issue is non-justiciable in a domestic court.

45. Further consideration of the judgments in Belhaj v Straw suggests quite clearly that the actions of the French authorities in this case do not fall within the scope of the third rule. At [128], Lord Neuberger explained that it was a rule which applied to “transactions between states”. At [147] he said that it “almost always only will apply to actions involving more than one state” and “will normally involve some sort of comparatively formal, relatively high level arrangement”. As Mr Gajjar submitted, these dicta reflect the earlier statement by Lord Wilberforce in Buttes Gas & Oil Co v Hammer (Nos 2 and 3) [1982] AC 888, at 931, that the act of state cases are part of a “more general principle that the courts will not adjudicate on the transactions of foreign sovereign states.” Mr Gajjar helpfully drew attention at [18] of his second skeleton argument to another domestic case in which the scope of the doctrine was considered at the highest level: Nissan v Attorney General [1970] AC 179, in which Lord Pearson said:

[…] it is necessary to consider what is meant by the expression “act of state”, even if it is not expedient to attempt a definition. It is an exercise of sovereign power. Obvious examples are making war and peace, making treaties with foreign sovereigns, and annexations and cessations of territory. Apart from these obvious examples, an act of state must be something exceptional.

46. The decision of the French authorities that French passports and identity cards had been fraudulently obtained in the appellant’s identity, and the decision to impound those documents, do not fall within the scope of the third rule as defined by those authorities. Those decisions do not represent any transaction between foreign states and they do not involve a comparatively formal, high-level arrangement in respect of which a court or tribunal should exercise what has been described as “judicial abstention” as a result of the subject matter. These are not matters in which the tribunal is asked to determine the legality of acts of a foreign government in the conduct of foreign affairs, or in which an assessment of the underlying facts would have consequences for foreign relations: Maduro Board v Guaido Board, at [164].

47. We consider Mr Gajjar to have further cogent reasons for submitting that the doctrine was of no application in the present context.

48. Firstly, as he submitted at [8]-[16] of his second skeleton argument, the tribunal is not being invited to assess a French act of any kind. It was no part of Mr Gajjar’s submission before the FtT (or before us) that the French authorities had acted unlawfully. The question before the FtT was framed by the British Nationality Act 1981, and was whether the appellant had obtained naturalisation by means of fraud, false representation or concealment of a material fact. The FtT was able to adjudicate upon that question without any investigation of the lawfulness of the actions of the French authorities, and the nature of the tribunal’s enquiry would not require the French authorities to justify their position. The municipal judge – in this case Judge Scott - was required by the statute to evaluate the conclusions of the Secretary of State in relation to the means by which the appellant acquired British citizenship; she was not required to assess the lawfulness of what the French had or had not done.

49. Secondly, as Mr Gajjar submitted at [14] of his skeleton argument, the doctrine does not apply where the subject matter may incidentally disclose that a state has acted unlawfully. Mr Gajjar made reference to [240]-[241] of Lord Sumption’s judgment in Belhaj v Straw in support of that submission. We respectfully decline to set out the whole of the lengthy passage, since the opening sentences of [240], which appear under the sub-heading “Incidental unlawfulness”, suffice to illustrate the point:

The act of state doctrine does not apply, in either form, simply by reason of the fact that the subject-matter may incidentally disclose that a state has acted unlawfully. It applies only where the invalidity or unlawfulness of the state's sovereign acts is part of the very subject matter of the action in the sense that the issue cannot be resolved without determining it.

50. In Maduro Board v Guaido Board, Lord Lloyd-Jones (who gave the only judgment) identified seven exceptions to the doctrine. The sixth exception reflected the principle above, in the following way:

For the doctrine to apply, challenges to foreign acts of state must arise directly “and not be a matter of merely ancillary or collateral aspersion”.

51. Mr Gajjar is correct, in our judgment, to submit that this exception necessarily applies in a case such as this, in which the tribunal’s primary focus is on the means by which the appellant obtained his British nationality, and not on the underlying entitlement to French nationality.

52. For all of these reasons, it follows that foreign act of state doctrine was – and is – of no application in the present context. The FtT was required to consider whether the appellant had obtained his British naturalisation by fraud, and it was not constrained by the doctrine from inquiring into the facts which resulted in the respondent concluding as she had.

53. That is not the end of the matter, however. We have concluded that the FtT erred by applying a pre-Chaudhry approach and that the foreign act of state doctrine was of no application. It remains for us to consider Mr Gajjar’s original ground of appeal, that the FtT erred in law in concluding that the appellant had a case to answer or that the Secretary of State had adduced sufficient evidence to discharge the initial evidential burden upon her.

(iii) Did the FtT err in concluding that the appellant had a case to answer?

54. We spent some time at the hearing exploring the current state of the law in this respect. In DK & RK [2022] UKUT 112 (IAC), a senior constitution of the Upper Tribunal concluded that the burden of proving fraud or dishonesty is on the Secretary of State and the standard of proof is the civil standard; the burdens of proof do not switch between parties but are those assigned by law. The frankly compelling reasoning upon which the latter conclusion was based appears at [35]-[54].

55. Mr Gajjar submitted, however, that it is necessary for the tribunal to enquire distinctly whether the respondent has made out a prima facie case before considering what, if anything has been done by an appellant to counter that evidence.

56. This is a point which will require more fulsome consideration on a different occasion. Mr Wain was content to accept that the law is currently as stated in Chowdhury v SSHD [2025] EWCA Civ 36. Singh LJ gave the only full judgment, with which Nicola Davies and Cobb J (as he then was) agreed. At [27]-[33], Singh LJ considered what was said about the burden of proof in civil proceedings in Phipson on Evidence (20th edition). Having done so, he cited what was said by Green LJ at [22] of Ullah v SSHD [2024] EWCA Civ 201; [2024] 1 WLR 4055:

The legal burden of proving that the appellant acted dishonestly lies upon the SSHD. There is a three-stage process: (i) the SSHD first must adduce prima facie evidence of deception (the first stage); (ii) the appellant then has a burden of raising an innocent explanation which satisfies the minimum level of plausibility (the second stage); and (iii) if that burden is discharged, the SSHD must establish on a balance of probabilities that this explanation is to be rejected (the third stage).

57. We note that Singh LJ went on at [38]-[43] to consider at some length what was said about the burden of proof in DK & RK. Nothing he said in those paragraphs or elsewhere suggests disapproval of the Upper Tribunal’s decision, and he noted at [46] that the UT’s decision was approved by the Court of Appeal in SSHD v Akter [2022] EWCA Civ 741; [2022] 1 WLR 3868. We doubt, therefore, that anything said in the Court of Appeal authorities represents disapproval of what was said on this subject in DK & RK.

58. Be that as it may, Mr Wain accepted (if we understood him correctly) that there was a distinct evidential burden on the Secretary of State to adduce prima facie evidence of deception. To that extent there is nothing between the parties on the proper approach.

59. Mr Gajjar submits that the evidence before the FtT was not sufficient on any proper view to discharge the evidential burden. We note that the burden has been described in the authorities as presenting a “comparatively modest threshold”: SM & Qadir, at [68], cited without criticism at [21] of SSHD v Shehzad & Anor [2016] EWCA Civ 615.

60. We have already set out in full the evidence on which the respondent relied before the FtT. Mr Gajjar makes four specific criticisms of that evidence, and submits that the judge erred in concluding that it established a prima facie case. His four submissions are:

(i) It is not clear who in the French Consulate made the allegation;

(ii) No information has been provided as to the processes that were used by the French authorities;

(iii) The respondent has not “done anything” to suggest that she has critically assessed the evidence “as opposed to simply taking the source at its word”; and

(iv) Harry Wells’ statement was infected with the same difficulty.

61. We are unable to accept these submissions. It is correct that the identity of the person who made the allegation was not disclosed to the First-tier Tribunal, and that no information was provided about the investigative process which had been followed. That person made no witness statement and did not attend to give evidence either. But these were all matters which went to the weight which could properly be attached to the email evidence; they did not establish that there was simply no case to answer.

62. It is necessary to consider what was actually said in the email. It states that an “unknown person” had fraudulently obtained French documents in the appellant’s identity. That suggests that the appellant is not Ousmane Diaby, born in Paris on 29 September 1980. It states that passport 404 and another document in that identity had been “fraudulently obtained”. The French authorities were clearly not content, therefore, to treat those identity documents as proof of the details they bore, including the appellant’s identity and French nationality. The witness statement made by Mr Wells showed that further documents in the same identity had been “revoked” because they had been “obtained fraudulently”.

63. We do not accept that it was necessary for the respondent to take any further action to investigate the allegations made in formal communications from the French authorities. The material from the French authorities was sufficient to cast very serious doubt on the appellant’s identity, nationality and his entitlement to passport 404. Given that he had made his application for naturalisation as a Frenchman called Ousmane Diaby who was the lawful holder of passport 404, there was obviously enough here to cross the comparatively modest threshold at the first stage of the enquiry prescribed by Ullah v SSHD. Like the judge, we think that the evidence could have been better but that is not the point; she was rationally entitled to conclude that the respondent had established a prima facie case, and then to take account of the fact that the appellant had done nothing of substance in the ensuing two years to rebut the respondent’s case.

64. We therefore reject Mr Gajjar’s original ground of appeal. There was clearly enough evidence adduced by the respondent to discharge the evidential burden and the judge was correct so to find. The error into which she did fall, however, is demonstrated by Chaudhry v SSHD, albeit through no fault of her own as the Respondent’s position on the correct approach had not changed, nor had this case even been heard at the time of her decision. That error was a material one, and necessitates her decision being set aside.

65. The proper course, in our judgment, is for the decision on the appeal to be remade in the Upper Tribunal. That is the usual course, as set out at paragraph 7.2 of the Practice Statement, and there is no reason on the facts of this case to depart from that course. In fact, the relative complexity of the case and the conclusion we have expressed on the first stage of the enquiry also suggests that it should be retained in the Upper Tribunal.

66. The decision on the appeal will therefore be remade on the first suitable date after 13 October 2025. The hearing will be listed for half a day, in consultation with the clerks to Mr Gajjar and Mr Badar. No interpreter will be arranged unless the appellant requests one.

67. We make the following directions:

• Any further evidence upon which the respondent seeks to rely is to be filed and served by 4pm 15 September 2025

• Any further evidence upon which the appellant seeks to rely is to be filed and served in a composite bundle by 4pm on 29 September 2025

• The respondent is to file and serve a skeleton argument by 4pm on 6 October 2025

• The appellant is to file and serve a skeleton argument by 4pm on 13 October 2025

• Any application to vary these directions is to be marked for the attention of UTJ Jackson and UTJ Blundell.

Notice of Decision

The decision of the FtT is set aside. The decision on the appeal will be remade in the Upper Tribunal on a date to be notified.

Mark Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 August 2025