Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2023-004316
First-tier Tribunal No: DC/50132/2022
LD/00180/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

26th August 2026

Before

UPPER TRIBUNAL JUDGE O'BRIEN

Between

THEODOR LACI
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Lee of Counsel, instructed by Cranbrook Legal
For the Respondent: Mr N Wain, Senior Home Office Presenting Officer

Heard at Field House on 29 May 2026

DECISION AND REASONS
1. The appellant appeals from the decision of the First-tier Tribunal (FtT) promulgated on 19 July 2023 dismissing his appeal against the Respondent’s decision dated 17 June 2022 to deprive him of his British citizenship under s40(3) British Nationality Act 1981 on the basis that he had obtained his citizenship through the adoption of a false (Kosovan) nationality.
2. In an error of law decision promulgated on 23 June 2025, a presidential panel of which I was a member agreed that the decision of the FtT involved the making of a material error on a point of law and set the decision aside with no facts preserved and retained the appeal for remaking in the Upper Tribunal. That error of law decision is annexed below.
3. I need not go into too much detail regarding the procedural history following the error of law decision. It suffices to note that, on 2 September 2025, I refused the appellant’s application to exclude from consideration the report of Mr Zjalic but granted him permission to rely on a further expert imagery analysis report and, on 27 May 2026 (2 days before the hearing), refused the appellant’s application to adjourn on the basis that the report had still not been received. As it was, the report was available by the time of the hearing and neither party required further time for its consideration, and so the rehearing went ahead as listed.
The Hearing
4. In addition to the evidence before the FtT, I was provided with additional evidence from both parties which included in particular: an email chain between the respondent and the British Embassy in Tirana and the new expert evidence: an imagery analysis report by Grace Plahé dated 26 May 2026. The appellant gave oral evidence and was cross-examined by Mr Wain.
5. The representatives made oral submissions in closing, in Mr Lee’s case supplementing his skeleton argument. Whilst I refer below only to such matters as necessary to understand my decision, I took the evidence and submissions into account in their entirety.
6. I gave my decision orally at the conclusion of the hearing, with brief reasons. I indicated that I would subsequently provide full written reasons. I do so now, with apologies for a longer than expected delay.
The Issues
7. The respondent’s case in a nutshell is as follows. The appellant naturalised as a British citizen on 10 May 2005. However, he had throughout misrepresented himself as a Kosovan refugee whereas he was in fact Albanian named Theodhori Laçi, born on 28 August 1973. In the challenged decision, she relied in particular on a reproduction of a passport-style photograph annotated with the details of an Albanian identity card and passport that expired on 8 May 2021 in the name of Theodhori Laçi (‘the ID card photo’). She now seeks to rely in addition (amongst other things) on the report of Mr Zjalic.
8. The appellant’s case in short is that he has been misidentified. He is in fact Kosovan and has given his true name, Theodor Laci, and date of birth, 27 August 1973. In support of his own evidence to that effect, the appellant relies on the report of Ms Plahé.
9. The sole issue between the parties is whether the appellant is in fact Albanian (and therefore that he misrepresented his nationality on arrival in the United Kingdom and thereafter as Kosovan). It is not in issue that, if so, it was reasonably open to the respondent to conclude that his naturalisation was obtained by means of that false representation and he should be deprived of his British citizenship. Nor is it in issue that deprivation in such circumstances would not be unlawful pursuant to s6 of the Human Rights Act 1998.
Consideration
10. The parties agreed that the approach I should take to an allegation of deceit is that set out at [57] in SM & Qadir v SSHD (ETS – Evidence – Burden of Proof) [2016] UKUT 00229 (IAC) (overturned by the Court of Appeal but not on this point). The respondent must first adduce sufficient evidence to establish a prima facie case of deception. If she does, the appellant must adduce evidence of an innocent explanation (an account satisfying ‘the minimum level of plausibility’). If so, the respondent must establish on the balance of probabilities that that explanation should be rejected. The Upper Tribunal emphasised however, that the burden of proving deception remained throughout on the respondent.
11. The respondent has provided documentary evidence of inquiries made with the British Embassy in Tirana in 2017, which returned details of an individual named Theodhori Laçi. The documents provided included in particular an Albanian birth certificate, Albanian family certificate and photograph associated with that individual. Theodhori Laçi’s date birth was given on the documents as 28 August 1973, his place of birth as Tirana, Albania, and his parents’ names as Pandeli (father) and Androniqi (mother). The decision records that the Tirana Embassy had also confirmed that there was no trace in Kosovo of an individual named Theodor Laci born in Mitrovica on 28 August 1973 (although the evidence before me appears to suggest something subtly but materially different, as noted below).
12. When challenged by this evidence, the appellant maintained that he had given his correct name, date of birth and nationality. He gave his parents’ names as Pandeli (father) and Nazime (mother). He denied ever having held a birth certificate or passport in Yugoslavia, belonging to an ethnic group (Roma) not registered by the Yugoslavian authorities.
13. In summary, the respondent had by the time of the challenged decision received details from Albania of an Albanian with a very similar name, a very similar date of birth and identical father’s name, together with a very poor quality photograph, and an absence of any trace in Kosovo of an individual with the appellant’s claimed details. That is the evidence relied on by the respondent at the time not only to establish a prima facie case of deception but also to conclude that the appellant had been deceptive about his nationality.
14. I am satisfied (just) that the respondent had a reasonable basis to suspect deception but not that the evidence was sufficient to establish the matter on the balance of probabilities. Even the FtT whose decision we overturned found that it was not lawfully open to the respondent, absent the photograph, to conclude that the appellant and Theodhori Laçi were one and the same, and I agree. There is no evidence of how common the surname Laci (or Laçi) are, or the name Pandeli. There is no apparent consideration of the disparity of name and date of birth. As for the photograph, it is of very poor quality and is not so obviously similar to any of the photographs provided of the appellant (either current or historical) to render the evidence before the respondent capable of establishing deception, even in the absence of any innocent explanation.
15. There arose before me some dispute as to whether the subsequent, erroneously but nevertheless deliberately disclosed, expert report from Mr Zjalic could be relied on by the respondent to establish her prima facie case. I expressed no settled view in my oral decision. On reflection, I conclude that she can. As is clear from the annexed error of law decision, my role is not to consider whether it was reasonably open to the respondent to conclude that the appellant had used deception, but rather to decide the point for myself. It follows that I can and should do so on the basis of the evidence before me now. Having ruled that Mr Zjalic’s report should not be excluded, the respondent was entitled to rely on it (the appellant unsurprisingly choosing not to). She did so, and so I can and do take it into account in deciding whether the respondent has adduced evidence to establish a prima facie case of deception.
16. Therefore, I return to the evidence before the respondent in light of that report. That said, I deal first with the claimed lack of any trace of the appellant in Kosovo. The evidence in question was provided in the respondent’s supplementary bundle: an email exchange in early 2022, culminating in a response from the Tirana Embassy on 22 March 2022 stating, ‘The subject is NO trace in Kosovo with the provided details: Theodhori Laçi, 28081973.’ It is hardly surprising that ‘Theodor Laci’ is not traced in Kosovo, when the respondent appears to have about a ‘Theodhori Laçi’. This email evidence does not, therefore, take the respondent’s case any further.
17. The key piece of evidence against the appellant, therefore, is the report of Mr Zjalic, about which I have the following criticisms to make (and would have made even had none been made by Ms Plahé in her report).
18. First, Mr Zjalic’s report is entirely premised on the appellant being more likely to be Theodhori Laçi than another individual from within the light-skin tone population of the United Kingdom. That is an entirely inappropriate comparative group. The appellant is from the Balkans, and so is the individual in the comparison photograph.
19. Second, there is no effort whatsoever to explain the extent to which the 42 comparison points are similar or dissimilar. Rather, there is a binary assessment of whether the compared photographs fit into the same classification or not. Neither is there any explanation of how common-place each classification is. I have to say that I struggle to agree with all of the assessments myself, but even taking the report at its highest, it is a blunt instrument.
20. All in all, even taking Mr Zjalic’s report into account, I find that the respondent has failed to establish a prima facie case of deception.
21. Even if I were to have found there to have been prima facie evidence calling for an explanation from the appellant, I would have infinitely preferred Ms Plahé’s report, which is balanced and well-reasoned. She accepts where matters might favour either party’s case, even when finding something to be a dissimilarity. She explains why certain matters might not be particularly strong persuasive factors one way or the other. As for the similarities she finds, some of them are extremely generic, such as gender, tone of skin, et cetera. She explains how she came to her conclusion. She approaches the exercise of her duties in accordance with authority. Further, and perhaps most importantly if I were considering the appellant’s explanation for the case against him, she makes the obvious point: the comparison photograph is extremely poor quality. It is of such poor quality that she, as an expert, says it is no basis to conclude the individuals are the same. I agree.
22. Therefore, even if I were to have found that it had fallen to the appellant to adduce evidence of his innocence, I would have accepted he had done so. For these reasons, I find that the respondent has not proved that the appellant misrepresented his identity and nationality. It follows that the appeal succeeds.
23. I have considered whether to make a fee award. Given my findings above, I see no reason why the fee should not follow the event, and so I make an award in the sum of any fee paid or payable by the appellant.

Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error on a point of law and is set aside with no facts preserved.
2. The decision is remade and the appeal is allowed.
3. I make a fee award of any fee which has been paid or is payable.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 August 2026

Annex

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2023-004316
First-tier Tribunal No: DC/50132/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

THE HON. MR JUSTICE DOVE, PRESIDENT
UPPER TRIBUNAL JUDGE O’BRIEN
UPPER TRIBUNAL JUDGE HIRST

Between

THEODOR LACI
a.k.a. THEODORI LAÇI
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Lee of counsel, instructed by Cranbrook Legal
For the Respondent: Mr Wain, Senior Home Office Presenting Officer

Heard at Field House on 22 May 2025

DECISION AND REASONS
1. The Appellant appeals from the decision of the First-tier Tribunal promulgated on 19 July 2023 dismissing his appeal against the Respondent’s decision dated 17 June 2022 to deprive him of his British citizenship under s40(3) British Nationality Act 1981 on the basis that he had obtained his citizenship through the adoption of a false (Kosovan) nationality.
2. This is a decision to which all members of the Panel have contributed.
Background
3. The Appellant entered the UK on 13 January 2000 and claimed asylum. He stated in that claim that he was a Kosovan national born in Mitrovica in Kosovo on 27 August 1973, was a member of the Kosovan Liberation Army (‘KLA’) and that his life was in danger from the Serbian authorities. His asylum application was refused on 15 March 2000, but his appeal against the refusal was allowed on 27 November 2000.
4. On 4 February 2005, the Appellant applied for naturalisation as a British citizen and on 10 May 2005, he was issued with a certificate of naturalisation as a British citizen.
5. In 2017, the Respondent made enquiries into the Appellant’s identity. As a result of those enquiries, information was received from the Albanian authorities which the Respondent believed indicated that the Appellant was in fact Theodhori Laçi, a national of Albania born on 28 August 1973. The Respondent referred the Appellant’s case to the Status Review Unit on 13 October 2017.
6. On 10 November 2021, the Respondent notified the Appellant that she was considering depriving him of his British citizenship under s40(3) of the British Nationality Act 1981 on grounds that he had obtained his citizenship through fraud. The Appellant was invited to make representations, which he did on 1 December 2021, asserting that he was “Theodor Laci, son of Pandeli and Nazime born in North Mitrovica on 27 August 1973” and that that identity had previously been accepted by the Albanian authorities.
7. On 1 February 2022, the Respondent sent a further letter notifying the Appellant that she was considering deprivation and inviting him to submit any evidence in support of his claimed Kosovan identity. The Appellant responded on 17 and 18 February 2022, explaining why he could not provide such evidence, including that he had never been issued with a Yugoslavian identity document or birth certificate because of his Roma ethnicity.
8. On 22 February 2022, the Respondent sent a third letter acknowledging his previous response and notifying the Appellant that he was still considered to have used deception to obtain his British citizenship. The Appellant responded on 5 June 2022.
9. On 17 June 2022, the Respondent decided to deprive the Appellant of his British citizenship under s40(3) of the British Nationality Act 1981. The Appellant’s appeal against that decision came before the First-tier Tribunal on 19 April 2023 and was dismissed in a decision and reasons promulgated on 19 July 2023.
The First-tier Tribunal decision
10. The evidence before the First-tier Tribunal is set out in detail at paragraphs 17-19 of the decision. The Respondent’s evidence included in particular a reproduction of a passport-style photograph annotated with the details of an Albanian identity card and passport that expired on 8 May 2021 in the name of Theodhori Laçi (‘the ID card photo’). Other documentation included an Albanian birth certificate, a partially multilingual Albanian family certificate, and an untranslated letter dated 18 November 2021.
11. The Appellant’s evidence included his witness statement, a letter from the Ministry of the Interior of Albania dated 10 January 2023 showing the travel history of Theodor Laci between 2011 and 2023 and refusing to provide the same information regarding Theodhori Laçi due to data protection issues, a statement from the Appellant’s maternal uncle dated 29 December 2022, background information about Mitrovica, and documents relating to the Appellant’s business and life in the UK.
12. The Appellant also filed an expert report by James Zjalić dated 30 December 2022, which compared the ID card photo to the Appellant’s UK passport photo. The report identified 35 points of similarity between the facial features in the two photos and 7 points of dissimilarity, reaching the overall conclusion that it was more probable that the Albanian ID card photo was of the Appellant than of an individual “within the light skin tone population of the UK”. The report was, understandably, not relied upon by the Appellant, and the First-tier Tribunal recorded that the report had been included within the Appellant’s bundle because the Appellant’s representatives considered that they were obliged to disclose it by “the duty of candour”.
13. At paragraphs 25-26 of the decision, the First-tier Tribunal judge set out the applicable legal framework by reference to Chimi v SSHD [2023] UKUT 115 (IAC), which had been promulgated on the date of the First-tier Tribunal hearing. The judge directed himself, in accordance with the guidance in Chimi, that he was required to apply “established public law criteria” and review the Respondent’s conclusion as to whether the Appellant had engaged in deception, rather than carrying out a “merits based review” and determining the question for himself.
14. At paragraph 40, the judge found that
“…In particular, I am satisfied that the ID card photo and the information confirming that the photo relates to an ID card in the name Theodhori Laçi that expired in May 2021, was provided by the Albanian authorities. In my view, the ID card photo is the key piece of evidence supporting the respondent’s case on deception/fraud.”
15. He continued, at paragraphs 41-42:
“41. The other evidence (i.e. the very similar names, the very similar dates of birth and the identical surnames of the fathers) suggests the appellant and the Theodhori Laçi may be the same person. However, I do not consider that on its own, this other evidence is sufficiently cogent to allow a decision maker to conclude, on the balance of probabilities that the appellant and Theodhori Laçi are the same person….I do not find this evidence, in itself, is capable of establishing the appellant and Theodhori Laçi are the same person. I find that to do so would not be ‘reasonable’ in the public law sense (i.e. no sensible person who applied their mind to the question could have reached that conclusion).
42. I find the ID card photo and the appellant’s passport photograph are sufficiently similar to enable the respondent to conclude that they show the same person….I do not find the respondent’s conclusion that the photographs show the same person can be characterised as unreasonable or irrational in the public law sense. The respondent was entitled to conclude that looking at the evidence provided by the Albanian authorities as a whole, the likelihood of mistaken identity based on so many coincidences occurring simultaneously was very small indeed.”
16. At paragraphs 43-50, the judge considered the Appellant’s evidence, including the expert report and other supporting evidence. In respect of the expert report, he considered that it provided “strong support for the respondent’s conclusion that the appellant and Theodhori Laçi are the same person.”
17. At paragraph 48, having summarised the Appellant’s evidence of attempts to obtain information regarding Theodhori Laçi from the Albanian authorities, the judge stated:
“…I do not find that this or any of the other new evidence relied on by the appellant is sufficiently cogent to undermine the respondent’s decision, particularly in the context of the public law review.”
18. He concluded, at paragraph 50:
“Accordingly, looking at the evidence as a whole, applying the approach set out in Chimi (above) I do not find the respondent materially erred in law in finding the appellant and Theodhori Laçi are the same person and that the appellant obtained is [sic] UK citizenship by deception.”
19. He therefore dismissed the appeal.
The appeal to the Upper Tribunal
20. The Appellant’s appeal to the Upper Tribunal came before a panel (the President and Deputy Upper Tribunal Judge Holmes) at an error of law hearing on 7 June 2024. By the time of the error of law hearing, the grounds of appeal were:
a. Ground 1: The methodology adopted by the expert was so obviously flawed that any reliance upon it by the First-tier Tribunal was irrational;
b. Ground 2: The judge had erred in limiting himself to considering only a public law challenge to the respondent’s conclusion on the condition precedent.
21. The Upper Tribunal found that there was no error of law in the First-tier Tribunal’s decision. In relation to Ground 2, the panel concluded, in reliance on Chimi and the Supreme Court decision in R (Begum) v Special Immigration Appeals Commission & Anor [2021] UKSC 7, [221] 2 All ER 1063, (“Begum No1”) that the First-tier Tribunal was correct to adopt a public law review approach to the question of whether the Appellant had used deception. The panel found no merit in Ground 1.
22. On 10 January 2025, the Appellant sought permission to appeal the Upper Tribunal’s decision to the Court of Appeal.
23. Whilst that application was pending, on 17 January 2025 the Court of Appeal handed down judgment in Chaudhry v SSHD [2025] EWCA Civ 16, [2025] WLR(D) 27, which is discussed in more detail below.
24. On 14 February 2025, the Upper Tribunal reviewed the error of law decision in light of Chaudhry and set the decision aside pursuant to Rules 45 and 46 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The matter was listed for a further error of law hearing before this panel on 22 May 2025.
25. Before us, it was not in issue that the First-tier Tribunal had erred in law as asserted in Ground 2 and the only question under that Ground was whether that error was material to the outcome of the appeal. Having heard submissions from the parties, we concluded that it was material, for the following reasons. We have scrutinised the concession made under Ground 2 and for reasons which follow we are satisfied that it was soundly made.
Legal framework
26. It will be apparent that this case is concerned with the nature of the jurisdiction of the First-tier Tribunal in relation to appeals under section 40A of the British Nationality Act 1981. Section 40 of the 1981 Act provides as follows:
“Deprivation of citizenship

(1) In this section a reference to a person's “citizenship status” is a reference to his status as—
(a) a British citizen,
…

(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.

(3) The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—
(a) fraud,
(b) false representation, or
(c) concealment of a material fact.

(4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.

(4A) But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if—
(a) the citizenship status results from the person's naturalisation,
(b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and
(c) the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.

(5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying—
(a) that the Secretary of State has decided to make an order,
(b) the reasons for the order, and
(c) the person's right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997.”
27. This case is concerned with a decision notified under section 40(5), pertaining to the exercise of the Secretary of State’s power under section 40(3). Despite the evident similarity of the statutory language between section 40(2) and section 40(3) of the 1981 Act, as well as the common entitlement to an appeal under either of those subsections provided by section 40A, it is important to observe that this appeal is solely in connection with a decision under section 40(3) of the 1981 Act and does not touch upon considerations related to appeals against decisions made under section 40(2). This distinction arises on the recent consideration of these issues by the Court of Appeal in Chaudhry. The history of the evolution of this issue is helpfully set out in Dingemans LJ’s judgment in the Court of Appeal at paragraph 3 and paragraphs 24 to 33 such that it is unnecessary for us to set out the detail of the current position as to the appropriate approach to an appeal against a decision made under section 40 of the 1981 Act. The key issue is the adjustment of the approach to this type of appeal which was introduced by the Court of Appeal in their decision in Chaudhry. This followed a concession made by the respondent that the approach previously set out in Ciceri (Deprivation of Citizenship Appeals: Principles) v Secretary of State for the Home Department [2021] UKUT 238(IAC); [2021] Imm AR 1909 and Chimi, and accepted by the Upper Tribunal as being accurate following the judgment of the Supreme Court in Begum (No1), was no longer considered by the Secretary of State to be appropriate. It was conceded by the Secretary of State that a different approach to appeals against decisions made pursuant to section 40(3) of the 1981 Act needed to be adopted as set out below.
28. The principal adjustment to the approach set out in the cases of Ciceri and Chimi relates to what the Court of Appeal described as the first part of the test in respect of an appeal against a decision made under section 40(3) of the 1981 Act (whilst paragraph 37 of the Court of Appeal’s judgment refers to section 40(2) of the 1981 Act this must be a reference to section 40(3)). This first part of the test relates to whether, as a question of fact, there had been fraud, false representation or concealment of a material fact by the appellant at the time of the original decision to grant citizenship. The approach adopted by the Upper Tribunal in the cases of Ciceri and Chimi, following the decision of the Supreme Court in Begum (No1) and its criticism of the earlier Upper Tribunal case of Deliassisi (British Citizen: Deprivation Appeal: Scope) [2013] UKUT 00439(IAC) (itself a case related to a decision under section 40(3) of the 1981 Act), was that the question in an appeal in relation to this first part of the test was whether or not there was an error of public law in the decision of the respondent that there had been fraud, false representations or concealment of a material fact.
29. The Court of Appeal in Chaudhry accepted the submissions of the parties that on an appeal under section 40(3) of the 1981 Act it was for the FtTIAC judge to find as a fact whether there was a fraud, false representation or concealment of a material fact and to determine that first stage of the test on the merits and afresh based on the evidence presented to the Tribunal. At paragraph 42, the Court of Appeal concluded that, notwithstanding the concession, it was not bound by the agreement of the parties as to the correct approach to an appeal under section 40(3) of the 1981 Act but needed to make up its own mind on this issue. The Court of Appeal’s reasoning for accepting the concession and concluding that it was for the First-tier Tribunal judge to find as a fact whether or not there had been fraud, false representation or concealment of a material fact for the purposes of section 40(3) of the 1982 Act is set out in paragraphs 46 to 49 of the leading judgment of Dingemans LJ as follows:
“46. In my judgment, on the first part of the test, 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. This is for a number of reasons. First, it is apparent that the existence of the fraud, false representation or concealment of a material fact is, under section 40(3), the statutory precondition for the Secretary of State making the order. The FTT has, as the parties both accepted, institutional competence to make a fair determination of whether there was fraud, false representation or concealment of a material fact.
47. Secondly, it is apparent that the Secretary of State might make reasonable judgments on the materials available at the time of the decision, which are later shown to be wrong by further evidence adduced and tested before the FTT. It would be a very unusual type of appeal where the FTT had to accept a judgment on a matter of precedent fact, which was reasonably made but was in fact wrong. If that were the right analysis appellants would then be driven to attempt to show, when relying on article 8 of the ECHR and section 6 of the Human Rights Act, that the decision about fraud was as a matter of fact wrong, meaning that the decision to deprive a person of citizenship status was more likely to be an infringement of rights protected by article 8 of the ECHR. This would not be a sensible interpretation of the rights of appeal.
48. Thirdly there is nothing in the judgment of the Supreme Court in Begum (No.1) which prevents such a conclusion. Begum (No.1) was concerned with section 40(2) of the BNA 1981 and the statements about the appropriate test cannot be read over to section 40(3) without appropriate qualification.
49. I should record that there was some discussion about the burden of proving the statutory preconditions. It is unlikely that much will turn on who has the burden of proof, but I would accept that it is for the Secretary of State, who is asserting that there was fraud, false representation or concealment of a material fact, to prove that on the balance of probabilities.”
30. This reasoning represents a departure from the previous understanding of the effect of the decision of the Supreme Court in Begum (No1) set out in Ciceri and Chimi. The important change necessary to give effect to the judgment of the Court of Appeal in Chaudhry is that in an appeal in relation to a decision made under section 40(3) of the 1981 Act the First-tier Tribunal will no longer be examining the question of whether there had been fraud or false representation or concealment of a material fact by considering if there was any public law error in that aspect of the Secretary of State’s decision. It is therefore for the First-tier Tribunal to make an independent finding, on the evidence before the Tribunal, which may be different to the evidence that was before the Secretary of State, as to whether there was fraud, false representation or concealment of a material fact. This is a question, as the Court of Appeal held, of precedent fact for the First-tier Tribunal to determine.
31. As Dingemans LJ observed, the First-tier Tribunal clearly has institutional competence to fairly determination questions of this kind and does so regularly in other contexts. The correct approach to be taken in cases in which dishonesty is alleged is well established and was set out by Green LJ in Ullah v SSHD [2024] EWCA Civ 201, [2024] 1 WLR 4055 at paragraph 22 as follows:
“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)…”
32. In the case of Chowdhury v SSHD [2025] EWCA Civ 36, Singh LJ recently emphasised that the legal burden of proof in relation to the issue of dishonesty is at all times on the Secretary of State and does not at any point shift to the appellant when assessing the three stages set out in Ullah. If the First-tier Tribunal is satisfied, having applied the three stage test, that there has been fraud, false representation or concealment of a material fact then the second question to be addressed is whether the decision to grant the appellant British citizenship was obtained by the fraud, false representation or concealment of a material fact which has been established. In connection with this second question, characterised as the causation question, Dingemans LJ observed as follows:
“50. As to the second part of the test, I accept the submissions of the Secretary of State that the causation issue, namely whether the registration of naturalisation was obtained by the impermissible means, is a decision of the Secretary of State 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 (No1). This is because the decision on causation is a matter critically dependent on the Secretary of State’s previous decision making about which the Secretary of State is in a better position that the FTT to make the primary evaluation. Mr Malik’s contrary submissions on this second part of the test were very much informed by the suggested difficulties for the FTT in applying the test. I do not consider that to be an answer. This is because this court must attempt to interpret and apply the provisions of section 40(3) and 40A. In any event it is unlikely that there will be many appeals which will be determined on the causation issue.”
33. Applying this approach, once the First-tier Judge has concluded that fraud, false representation or concealment of material fact has been proved as a question of precedent fact, the question of whether that established precedent fact caused the Secretary of State to decide to grant the appellant’s application for citizenship will need to be reviewed applying public law principles. It is not open to the First-tier Judge to determine the causation question afresh. We agree that it is unlikely that there will be many appeals that turn on the causation question, but where they do, they are likely to be concerned with questions such as the interpretation of relevant policy at the time of the decision.
34. If the First-tier judge decides the causation question in the Secretary of State’s favour, the next question is whether the Secretary of State was correct to decide to make the order depriving the appellant of citizenship as an exercise of her discretion. This third question is the discretion issue. In relation to this issue, Dingemans LJ accepted at paragraph 51 of his judgment that the exercise of the Secretary of State's discretion to make the order is to be reviewed by the First-tier Tribunal solely on public law grounds alone in accordance with the principles set out by Lord Reed in paragraph 71 of Begum (No1). Since the language of section 40(3) identifies that it is for the Secretary of State to exercise that discretion, the role of the First-tier Tribunal on appeal is necessarily limited to public law review. Given the wording of the statutory provision, it is not open to the First-tier Judge to step into the shoes of the Secretary of State and exercise the discretion afresh.
35. If the First-tier Judge concludes the first three questions in favour of the Secretary of State, the fourth and final question is whether the Secretary of State acted in breach of other relevant legal obligations and in particular those arising under section 6 of the Human Rights Act 1998 in making the decision. The First-tier Tribunal is very familiar with making decisions of this nature. It will be for the First-tier Judge to determine the necessary questions of fact arising from the evidence before the Tribunal and thereafter conclude whether on the basis of that evidence there has been any breach of these legal requirements. This final question is for the First-tier Tribunal to decide for itself on the merits, having due regard to the findings, evaluations and policies of the Secretary of State.
36. The position in relation to the correct approach to appeals against decisions depriving a person of their British citizenship using section 40(3) of the 1981 Act following the decision of the Court of Appeal in Chaudhury can therefore be summarised as follows:
a. First, in cases where it is disputed, the First-tier Tribunal is required to find as a fact whether there has been fraud, false representation or concealment of a material fact, which is the statutory precondition for the making of a deprivation order under s40(3) (‘the precedent fact issue’);
b. Second, if the statutory precondition is met by proof of the precedent facts, the First-tier Tribunal is required to review on public law grounds whether the citizenship was obtained by the impermissible means (‘the causation issue’);
c. Third, the First-tier Tribunal is required to review on public law grounds the Secretary of State’s exercise of her discretion to make a deprivation order (‘the discretion issue’);
d. Lastly, the First-tier Tribunal must consider whether the Secretary of State has acted in breach of other relevant legal obligations, including section 6 Human Rights Act 1998. The First-tier Tribunal is required to resolve that question for itself whilst giving due weight to the findings, evaluations and policies of the Secretary of State.
Discussion and Decision
37. The power of the Upper Tribunal to set aside a decision of the First Tier Tribunal under s12 Tribunals, Courts and Enforcement Act 2007 arises where the decision “involved the making of an error on a point of law”. That does not necessarily require any error on the part of the judge who conducted the hearing, as the Upper Tribunal made clear in MM (unfairness; E & R) [2014] UKUT 105. In this case, no criticism can be made of the approach taken by the First-tier Tribunal judge, who correctly applied the law as it was then understood to be to the appeal before him. However, that approach has now been shown by Chaudhry to be incorrect.
38. As outlined above, it was common ground before us that the First-tier Tribunal had erred in law, and the only question therefore was whether the error was material, i.e. whether the outcome of the appeal would inevitably have been the same regardless of the error (cf AJ (Angola) v SSHD [2014] EWCA Civ 1636 at §49).
39. We conclude that the First-tier Tribunal’s error was material, for two principal reasons. First, it is clear from the reasoning at paragraphs 40-50 of the decision (cited above) that the judge confined himself to considering merely whether the Respondent’s decision was reasonable, and when assessing the Appellant’s evidence, again his touchstone was whether it “undermined” the Respondent’s decision. Although the judge recognised that a different decision could have been made on the evidence before the Respondent, he did not at any stage direct his mind to how he himself would find on the point. It cannot therefore be said that, had the judge not considered himself restricted by Chimi to a public law review of the deception issue, he would have reached the same conclusion.
40. Second, the case before the First-tier Tribunal was prepared and presented on the basis that the determination of the precedent fact issue would be limited to a public law review. That impression is fortified by the fact that the Appellant’s solicitors disclosed the unfavourable expert report expressly on the basis of the “duty of candour” that they considered applied. It cannot be said with any certainty (indeed it seems unlikely) that the case would have been presented in the same manner had the parties apprehended that the First-tier Tribunal was required to determine the precedent fact issue for itself.
41. We therefore conclude that the First-tier Tribunal’s error was material to the outcome of the appeal. Whilst the appellant submitted that it was appropriate for the matter to be remitted to the First-tier Tribunal for redetermination we are not satisfied that in this case this is the appropriate course. We have had regard to the decision of the Upper Tribunal in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 recording the general principle from the Practice Direction that where there has been an error of law the case will be retained in the Upper Tribunal for redetermination. This is not a case where the appellant was deprived of a fair opportunity for his case to be put in the First-tier Tribunal or the nature of extent of any fact finding is such that it is appropriate for the case to be remitted. We note that this is a case in which the error of law consists in the change in the approach to appeals of this type which has been made by the Court of Appeal’s decision in Chaudhury and not any unfairness in the procedure before the First-tier Tribunal. We have reflected on the appellant’s loss of a two tier appeal process and afforded that due weight bearing in mind the observations of Stuart-Smith LJ in AEB v SSHD [2022] EWCA Civ 1512. Nonetheless we consider that this is a case to which the general principle arising from the Practice Direction should apply and that the case should be retained in the Upper Tribunal for remaking in the light of the recent legal developments which have been set out above.

Notice of Decision
The decision of the First-tier Tribunal involved the making of a material error of law and is set aside.
The appeal is to be reheard by the Upper Tribunal with no findings preserved.

Ian Dove
23rd June 2025