The decision

Case No: UI-2023-002684
First-tier Tribunal No: DC/50076/2022


Decision & Reasons Issued:
On the 25 April 2024




(no anonymity order made)


For the Appellant: Mr B Hawkin, instructed by Lillywhite Williams & Co Solicitors
For the Respondent: Ms S McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 16 April 2024


1. This is the re-making of the decision in the appellant’s appeal, following the setting aside (in part), in a decision of 21 February 2024, of the decision of First-tier Tribunal Mulready in which she allowed the appellant’s appeal against the decision to deprive him of his British nationality under section 40(3) of the British Nationality Act 1981.

2. The appellant is currently a British citizen. He is of Albanian nationality, born on 10 March 1972 in Albania. He entered the UK illegally and claimed asylum on 27 May 1999 in the name of Agim Jonuzi, born on 10 March 1971 of Kosovan nationality. His claim was refused on 7 October 2000 but he successfully appealed the refusal decision and was granted indefinite leave to remain as a refugee on 30 June 2003 in the same false identity. He obtained a UK travel document in July 2003 and on 23 September 2004 he applied for naturalisation as a British citizen, again all in his false identity. He became a British citizen on 23 December 2004. His wife was subsequently naturalised as a British citizen on 21 August 2015.

3. Following a referral from HMPO on 28 September 2020 regarding his nephew and brother who were both considered to be Albanian nationals, the appellant was issued with a Home Office investigation letter on 1 July 2021, stating that it was considered that his genuine identity was Artan Onuzi born on 10 March 1972 in Kukes, Albania and notifying him that consideration was being given to deprive him of his British citizenship under section 40(3) of the British Nationality Act 1981. The letter requested a response to the allegation and details of his genuine identity.

4. The Home Office also made enquiries to the solicitors of the appellant’s brother, Betim Jonuzi, requesting contact details for the appellant. In an email of 15 July 2021 the appellant, in the name of Agim Jonuzi, provided his contact details to the Home Office.

5. On 16 July 2021 a further investigation letter was issued to the appellant, again stating that it was considered that his genuine identity was Artan Onuzi born on 10 March 1972 in Kukes, Albania and requesting a response to the allegation and details of his true identity. The investigation letter was re-sent on 17 August 2021. The appellant did not respond to any of the letters.

6. On 29 April 2021 Hatique Onuzi, whom the respondent believed to be the appellant’s mother, applied for entry clearance to the UK and provided supporting documents which included a Family Certificate giving details of her two children Artan Onuzi and Betim Onuzi.

7. The respondent, in a decision dated 25 November 2021, advised the appellant that it was considered that his British citizenship had been obtained fraudulently and that he should be deprived of his British citizenship under section 40(3) of the British Nationality Act 1981. The respondent considered that the appellant had misled the Home Office and that, had his true identity been known at the time of his appeal, it was likely that his appeal would have been dismissed and he would not have been granted asylum and ILR, and it was unlikely that his application to naturalise as a British citizen would have been granted had his deception been known. The respondent considered that the appellant’s circumstances fell within the terms of Chapter 55 of the Deprivation & Nullity of British Citizenship guidance and that his grant of British citizenship had been obtained as a result of fraud. The respondent concluded that it was reasonable and proportionate to deprive him of his British citizenship. The respondent did not consider that depriving the appellant of his British citizenship would breach his Article 8 rights.

8. The appellant appealed against that decision under section 40A(1) of the British Nationality Act 1981. His appeal was heard on 2 June 2023 by First-tier Tribunal Judge Mulready. The judge noted that the appellant lived with his wife and three children, aged 20, 18 and 15 years, all of whom were British citizens. She noted that the appellant was suffering from depression and that he had various physical ailments and was unable to work owing to his ill-health. She noted that the appellant’s wife was working at Sainsbury’s and that her salary paid half of the family’s rent with the other half covered by housing benefit. She noted that the family had suffered from long-term unstable housing and were currently facing eviction. She considered evidence about the appellant’s mental and physical health issues, his financial situation and the impending eviction, and she considered the best interests of his three children. The judge rejected the appellant’s argument that he would have been granted asylum as an Albanian in any event, owing to the dangerous country situation in Albania in 1999. She concluded that the appellant’s deception was material to his grant of citizenship and that the condition precedent in section 40(3) was satisfied. The judge found further that the respondent had not erred in law in exercising discretion to deprive the appellant of his British citizenship. The judge considered, however, that depriving the appellant of his British citizenship would constitute a disproportionate breach of his Article 8 human rights and she allowed the appeal on that basis.

9. Permission to appeal was sought by the respondent in relation to the judge’s findings on Article 8, on the grounds that the judge had failed to have regard to the 8 week ‘limbo’ period identified in the deprivation decision or to any quantifiable ‘limbo period’, and that the judge had failed to identify anything rare or exceptional that was capable of outweighing the public interest in depriving the appellant of his British citizenship.

10. There was no challenge by the appellant to the judge’s findings on the condition precedent issue and the respondent’s exercise of discretion.

11. Permission was granted to the respondent and, following a hearing on 7 February 2024, Judge Mulready’s decision on Article 8 was set aside in a decision of the Upper Tribunal promulgated on 21 February 2024, on the following basis:

“15. I do not agree with Mr Hawkin that the respondent’s challenge is simply a disagreement or quarrel with the judge’s findings and conclusions. On the contrary the grounds challenge the judge’s approach to the Article 8 assessment in a deprivation case and her application of relevant legal principles. It seems to me that that challenge has been properly made out and that the judge failed to confine her assessment to the reasonably foreseeable consequences of deprivation in the short-term, during the limbo period, as consistent with the guidance in Hysaj.

16. I do not agree with Mr Hawkin that it should be assumed that the judge was considering the limbo period, because she made no specific reference to it and did not consider the factors relied upon under the various headings at [43] to [48] in the context of that limited period of time. At [43] and [44] the judge, when considering the appellant’s mental health, relied upon his fear and worry about the future as a result of being deprived of his British citizenship. Although she reminded herself at [44] that she had to look exclusively at the impact of the deprivation and not at the impact of a hypothetical next step after deprivation, she went on to consider factors unrelated to the limited period of limbo. As the grounds assert at [14] to [20], she considered the impact of deprivation on the appellant in terms of his mental health on the basis of speculation, relying upon historical evidence and without reference to any specific evidence of the short-term impact upon his health. Likewise, at [45], when considering the appellant’s financial situation, the judge made assumptions and generalised findings without reference to particular evidence, and in fact appeared to place the burden of proof upon the respondent. At [46] she relied upon matters which were largely historical and were unrelated to deprivation of citizenship, as the grounds assert at [21] to [24]. The same can be said about the judge’s findings at [48] about the best interests of the children which, again, were unparticularised and speculative and were made without reference to any specific evidence in the context of the limbo period.

17. In the circumstances I agree with Mr Lindsay that the judge took an unsustainable approach to the assessment of reasonably foreseeable consequences of deprivation during the relevant period and that the basis for her conclusions was inconsistent with the guidance in Hysaj. As such, Judge Mulready’s decision on Article 8 cannot stand and must be set aside and re-made. There being no cross-appeal or challenge to the judge’s findings on the condition precedent and exercise of discretion issues in relation to the appellant’s deception, those findings are preserved.

18. It was Mr Lindsay’s submission that there was only one possible outcome to the Article 8 assessment when considering the limbo period and that the decision could simply be re-made by dismissing the appeal without the need for a further hearing. Mr Hawkin, however, requested that there be a further hearing in order for the appellant to produce updated evidence. Mr Lindsay had no particular objection to that course and, in the circumstances, I accept that the decision should be re-made at a resumed hearing.”

12. Directions were made for the parties to file and serve a consolidated bundle and skeleton arguments. The appellant produced a supplementary appeal bundle containing a supplementary statement from himself, a Court Order in relation to his accommodation, his GP medical notes and a letter from Redbridge Talking Therapies.

13. The matter came before me for a resumed hearing on 16 April 2024. At the hearing the appellant produced an Order for Possession dated 1 November 2023 which related to the Court Order in his supplementary appeal bundle. The appellant gave oral evidence before me with the assistance of an Albanian interpreter.

14. The appellant adopted his statement as his evidence in chief and was cross-examined by Ms McKenzie. He confirmed that he was still living at the property which was the subject of the Order for Possession and had remained there after receiving the Order, on the advice of Redbridge Council who told him to stay there until he was told otherwise. He was very stressed by that and did not know what to do. The property was a three bedroom house where he had been placed by the council. He lived there with his wife and children. His wife paid part of the rent and the council paid the rest. He would be homeless if he had to leave the property. Neither he nor his wife had any savings and all of his wife’s money went towards paying for food and rent. His wife worked part time, 23 hours a week, and earned about £1000 or £1100 a month. He did not work himself. He used to work as a taxi driver but he lost his licence because of his diabetes. His three children all lived at home, the eldest of whom were adults and were studying at university and working part-time. The appellant believed that his wife received child benefit for the youngest child. Ms McKenzie referred the appellant to his statement for the hearing before the First-tier Tribunal where he had mentioned having a network of support and asked him whether his friends could help him with his accommodation problems, to which he replied that none could offer him a home but could only help with small things.

15. Both parties made submissions. Ms McKenzie relied upon the refusal decision and submitted that the evidence did not support the claim that the family would be destitute during the limbo period as they were still living in the property which they had been told to leave by 26 October2023. Ms McKenzie relied upon the case of Hysaj (Deprivation of Citizenship:Delay) Albania [2020] which she submitted involved similar circumstances, as well as the case of Aziz & Ors v Secretary of State for the Home Department [2018] EWCA Civ 1884 which referred to deprivation being likely to have minimal impact upon family life and the interests of the children. She referred to the case of Muslija (deprivation: reasonably foreseeable consequences) [2022] UKUT 337 in regard to the limbo period and submitted that the limbo period could not tip the proportionality balance in the appellant’s favour. On my enquiry, Ms McKenzie confirmed that there was no intention to deprive the appellant’s wife and children of their British citizenship.

16. Mr Hawkin submitted that the cases of Hysaj and Muslija provided a general view but that it was relevant to look at the individual facts of the case. In so far as Hysaj referred to the need for there to be ‘something more’, he relied upon the appellant’s health problems and his family being at risk of eviction and submitted that the appellant’s situation was already precarious and delicate. The appellant was facing eviction and would not be eligible for re-housing by the council once he was subject to immigration control. He relied upon section 160ZA of the Housing Act 1996 in that respect and submitted that the appellant would therefore be destitute and homeless during the limbo period.


17. The significance and impact of the ‘limbo’ period was considered by the Upper Tribunal in Hysaj (Deprivation of Citizenship:Delay) Albania [2020] UKUT 128 and Muslija (deprivation: reasonably foreseeable consequences) [2022] UKUT 337. It is relevant, at this point, to set out the most significant parts of their findings as follows:

18. In Hysaj, the Upper Tribunal found as follows:

“105.      'Limbo' is convenient shorthand for the appellant's concern that he faces an uncertain period awaiting a decision. Though he has enjoyed lawful presence in this country for many years through his fraud, he is being returned to the position he would have been in at the time the respondent considered his application for international protection if he had been truthful as to his personal history. He has no identifiable claim for international protection and his wish is to remain here on the basis of established private and family life rights. There is no requirement that he enjoy temporary leave whilst a decision is made on possible deportation action.
106.      We are satisfied in this matter that the short time-period identified by the respondent within which the appellant will be required to make representations and for a decision to deport or a grant of leave to then be made cannot require the grant of leave to remain pending the respondent's ultimate decision as to deportation.
107.      The appellant's articulated concern is that deprivation will adversely impact upon not only his life, but also that of his wife and children. He contends that the expected 'upheaval' in their lives will be accompanied by financial and emotional concerns. Such upheaval is a consequence of the appellant losing rights and entitlements from his British citizenship that he should never have enjoyed.
108.      The Court of Appeal has confirmed that article 8 does not impose any obligation upon the State to provide financial support for family life. The ECHR is not aimed at securing social and economic rights, with the rights defined being predominantly civil and political in nature: R. (on the application of SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615; [2019] 1 WLR 5687, at [28]-[38]. The State is not required to grant leave to an individual so that they can work and provide their family with material support.
109.      The time period between deprivation and the issuing of a decision is identified by the respondent as being between six to eight weeks. During such time the appellant's wife is permitted to work. She accepted before us that she could seek employment. She expressed concern as to the impact her limited English language skills may have on securing employment but confirmed that she could secure unskilled employment. She confirmed that her husband could remain at home and look after their children. The appellant accepted that his wife is named on the joint tenancy and will continue to be able to lawfully rent their home upon his loss of citizenship and status. In addition, the children can access certain benefits through their citizenship. Two safety nets exist for the family. If there is an immediate and significant downturn in the family's finances such as to impact upon the health and development of the children, they can seek support under section 17 of the Children Act 1989. If the family become destitute, or there are particularly compelling reasons relating to the welfare of the children on account of very low income, the appellant's wife may apply for a change to her No Recourse to Public Funds (NRPF) condition.
110.      There is a heavy weight to be placed upon the public interest in maintaining the integrity of the system by which foreign nationals are naturalised and permitted to enjoy the benefits of British citizenship. That deprivation will cause disruption in day-to-day life is a consequence of the appellant's own actions and without more, such as the loss of rights previously enjoyed, cannot possibly tip the proportionality balance in favour of his retaining the benefits of citizenship that he fraudulently secured. That is the essence of what the appellant seeks through securing limited leave pending consideration by the respondent as to whether he should be deported. Although the appellant's family members are not culpable, their interests are not such, either individually or cumulatively, as to outweigh the strong public interest in this case.”

19. The Headnote in Muslija states as follows:

“(1) The reasonably foreseeable consequences of the deprivation of citizenship are relevant to an assessment of the proportionality of the decision, for Article 8(2) ECHR purposes.  Since the tribunal must conduct that assessment for itself, it is necessary for the tribunal to determine such reasonably foreseeable consequences for itself.
(2) Judges should usually avoid proleptic analyses of the reasonably foreseeable consequences of the deprivation of citizenship.  In a minority of cases, it may be appropriate for the individual concerned to demonstrate that there is no prospect of their removal.  Such cases are likely to be rare.  An example may be where (i) the sole basis for the individual’s deprivation under section 40(2) is to pave the way for their subsequent removal on account of their harmful conduct, and (ii) the Secretary of State places no broader reliance on ensuring that the individual concerned ought not to be allowed to enjoy the benefits of British citizenship generally.
(3) An­ overly anticipatory analysis of the reasonably foreseeable consequences of deprivation will be founded on speculation.  The evidence available and circumstances obtaining at the time of making of the deprivation order (and the appeal against that decision) are very likely to be different from that which will be available and those which will obtain when the decision regarding a future application or human rights claim is later taken.
(4) Exposure to the “limbo period”, without more, cannot possibly tip the proportionality balance in favour of an individual retaining fraudulently obtained citizenship.  That means there are limits to the utility of an assessment of the length of the limbo period; in the absence of some other factor (c.f. “without more”), the mere fact of exposure to even a potentially lengthy period of limbo is a factor unlikely to be of dispositive relevance.
(5) It is highly unlikely that the assessment of the reasonably foreseeable consequences of a deprivation order could legitimately extend to prospective decisions of the Secretary of State taken in consequence to the deprived person once again becoming a person subject to immigration control, or any subsequent appeal proceedings.”

20. In re-deciding the appellant’s case, the conclusions have been reached with these, and other, relevant authorities in mind. There is a need to avoid an unduly proleptic analyses of the reasonably foreseeable consequences of the deprivation of citizenship and it is not appropriate to undertake an analysis of, or to include as a material part of the assessment, the likelihood of the appellant being granted leave to remain in the UK or being removed from the UK. Having said that, it seems to me that this is a case where, on its face, it is very unlikely that the appellant would be facing removal from the UK. The focus, in any event, is upon the impact of the loss of British citizenship and the period of uncertainty during the limbo period when the appellant will have no leave and no status. The respondent states at [62] of the decision letter that that period would be about eight weeks from the making of the deprivation order. I bear in mind that the decision was made in November 2021 and that time scales for decision-making may have changed and indeed lengthened since then, but I have no evidence from either party to suggest a different period of time and, in any event, I have regard to what the Upper Tribunal said at headnote [4] and at [67] in Muslija in relation to that period.

21. It is undeniable that the appellant’s current situation is far from ideal and is certainly precarious, in that he suffers from diabetes and as a result is unable to work, he suffers from depression, anxiety and stress, the family’s financial circumstances are limited and they are facing eviction from their current property. As I said to Mr Hawkin, I have considerable sympathy for the family in their current situation, and it is perhaps for that reason that Judge Mulready went on to allow the appellant’s appeal. However, as identified in my decision of 21 February 2024, in allowing the appeal Judge Mulready strayed into the realms of speculation and strayed from the real issue, which was to focus on the limbo period and the reasonably foreseeable consequences of deprivation particularly during that period of uncertainty, as is made clear at headnote (3) of Muslija. The problem with which I am faced is that I am being asked to speculate as to what is likely to happen to the appellant and his family without there being a proper evidential basis to support those concerns. I am unable to see how the matters relied upon by the appellant are, in fact, relevant to the issue of, and the consequences of, deprivation of British citizenship. That was a question I put to Mr Hawkin on two occasions and I do not consider that the limited evidence before me provides a satisfactory response.

22. The appellant relies upon his health, both mental and physical, in challenging the decision to deprive him of his British citizenship. The evidence is that he is unable to work, and has not worked for some time, because of his diabetes and other health issues. The evidence before the First-tier Tribunal in that regard is set out at [26] to [33] and [44] of Judge Mulready’s decision. It is clear that the appellant has suffered from depression and anxiety for a long time, as a result of his poor housing conditions and an assault he suffered in January 2017. Indeed, a letter dated 23 August 2017 from the appellant’s GP practice, in the appeal bundle before the First-tier Tribunal, refers to the appellant’s mental health and physical problems dating back to 2004. The appellant has since submitted further evidence on his supplementary bundle for the appeal before me which consists of his more recent GP records and a letter from Redbridge Talking Therapies dated 5 July 2023. In regard to the latter, the letter refers to the appellant presenting symptoms of PTSD (without any further details provided) and being placed on a waiting list for Cognitive Behavioural Therapy (CBT) . The appellant claimed in his statement that he had had five sessions of therapy, but he has not produced evidence of his appointments or a report from the therapist to explain the nature and extent of his mental health concerns. I note that evidence of referral for therapy in the appeal bundle before the First-tier Tribunal included evidence of him having attended two appointments with Talking Therapies in 2017 but then discontinuing the therapy and being discharged from their services in June 2017. There is therefore no evidence before me detailing the extent of the appellant’s mental health problems and certainly no evidence to show the possible impact on his health of the uncertainty arising throughout a period of limbo. Likewise, the appellant’s GP records add little to the records previously before the First-tier Tribunal, other than being more recent. They refer to his ongoing issues with his diabetes and to various other ailments from which he was suffering, but these are long-term conditions and historical matters which have been ongoing for many years.

23. Clearly, therefore, the appellant’s issues in relation to his health, being historical, are unrelated to his citizenship or potential loss of his British citizenship. There is no evidence before me to suggest that there has been a significant deterioration in his health as a result of the deprivation proceedings and neither is there any evidence to show the likely impact of deprivation upon his mental or physical health during the period of limbo or beyond. There is no evidence to suggest that the appellant would no longer have access to the medical care and treatment from which he has benefitted to date in the event that he loses his British citizenship and becomes subject to immigration control. Therefore, other than showing that the appellant is a man of ill-health, and aside from the appellant’s assertion that the deprivation proceedings are causing him anxiety, as would be expected in any event, the evidence in regard to the appellant’s health is limited in the extent to which it assists in the assessment of the reasonably foreseeable consequences of deprivation.

24. As for the effects of deprivation on the appellant’s financial situation, it is not the case that the family would lose a source of income from the appellant being unable to work, since he has not been able to work for some years in any event owing to his medical condition. The appellant’s wife is in employment and his two adult children work part-time and their ability to do so will not be impacted by the deprivation of the appellant’s British citizenship. Ms McKenzie assured me that there was no intention to deprive the appellant’s wife and children of their British citizenship. Although the appellant may well lose his benefits during the period of limbo until his immigration status is regularised, no reason has been given as to why his wife could not increase her hours of employment from 23 hours a week, at least for the duration of that period, to supplement the family’s income.

25. Much reliance is placed upon the fact that the family are facing eviction from their property. The appellant has produced an Order for Possession in relation to the property where he currently resides and an Order of the County Court in which the matter is to be transferred to the High Court for enforcement. It is entirely understandable that this is a very stressful time for the appellant and his family. However there is no suggestion that the eviction is connected in any way to the deprivation decision and Mr Hawkin accepted that it was not. The appellant’s evidence before Judge Mulready, as recorded at [23] of her decision, was that the possession proceedings initiated by the landlord were due to her wish to sell the property. It is relevant to note that the claimant named in the possession order is Sandra Davidson Estate Agents, namely a private landlord. It is also clear from the tenancy agreement in the appeal bundle before the First-tier Tribunal that this was just temporary housing. There is no evidence that the council itself was requiring the appellant and his family to leave the property. Indeed the appellant’s evidence before me, when asked why he was still at the property if he had been required to leave on or before 26 October 2023, was that the council told him to stay there until told otherwise. Mr Hawkin submitted that that was no doubt because the family would be treated as being intentionally homeless if they vacated the property at this stage which may lead to difficulties being re-housed. There is, accordingly, nothing in the evidence before me to suggest that the council was terminating, or intends to terminate, their services to the family or that they would not re-house the family.

26. When I asked Mr Hawkin how, therefore, the pending eviction had anything to do with the deprivation proceedings, he replied that the appellant would have no housing rights during the limbo period as he would be subject to immigration control and would not be re-housed by the council, and he relied upon section 160ZA of the Housing Act 1996 in that respect, as referred to by the appellant in his statement. However, whilst I note that the current tenancy is in the appellant’s previous, false identity, it seems to me that there is no reason why the appellant’s wife could not be named in a new tenancy agreement instead of the appellant and no reason why she would not be entitled to be housed by the council with the children, as British citizens. Mr Hawkin suggested that the council would not permit the appellant to reside in the property himself. However that claim appears to be based upon nothing but speculation and there is no evidence to demonstrate that that would be the case. If the appellant was going to rely upon being homeless and destitute during the period of limbo it was open to him to obtain confirmation from the council or otherwise that that was the case. In the absence of such evidence, however, I cannot speculate about the position. I take note, in any event, of the appellant’s reference, in his previous statement (paragraph 13) to a network of support in the UK and, whilst the appellant claimed that his friends were not in a position to offer his family a home, there is no reason why he would not be assisted by some short term support during the limbo period, if necessary, from that network.

27. As for the best interests of the appellant’s children, there is no reason why their situation would be affected by their father’s loss of British citizenship. Neither they nor their mother would lose their British citizenship. They would be able to continue with their education and would be entitled to assistance with housing and other financial matters as previously. There is no reason why their financial situation would change in any material way. There is no medical or other evidence in relation to the claimed emotional harm caused to them by the deprivation proceedings. Indeed there is no evidence of any material considerations in assessing their best interests which would be of weight in the proportionality balancing exercise as a whole.

28. What is left, therefore, is the submission that deprivation would be an additional weight to the appellant and his family in what was already a precarious and delicate situation and that the uncertainty of the appellant’s future would increase his anxiety and stress. However, as discussed above, such a claim is not based upon any specific evidence, but is simply an assertion of fact. It is clear from the relevant authorities, that that is the natural consequence of the appellant’s own actions and cannot tip the proportionality balance in his favour. The evidence does not demonstrate anything particularly exceptional about the appellant’s circumstances or those of his family and does not demonstrate that the “without more” requirement as discussed at [110] of Hysaj has been satisfied. Any upheaval in the lives of the appellant and his family is a consequence of him losing rights and entitlements from his British citizenship that he should never have enjoyed.

29. In the circumstances the appellant has provided no evidence to show that the consequences of the loss of his British citizenship would have any material impact on him and his family other than by way of the anxiety caused by the period of uncertainty and upheaval, and certainly nothing that would outweigh the public interest in depriving him of a citizenship obtained through deception and to which he was not entitled. Accordingly the appellant has failed to show that depriving him of his British citizenship would be disproportionate and in breach of his Article 8 rights and the appeal must be dismissed.

Notice of Decision

30. The decision of the First-tier Tribunal having been set aside, the decision is re-made by dismissing the appellant’s appeal.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 April 2024