Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002990

First-tier Tribunal No: DC/50060/2023

LD/00093/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 1st of May 2025

Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between
DANIEL SOLOMON
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr M Fazli, Counsel, instructed by London Solicitors
For the respondent: Ms S Lecointe, Senior Presenting Officer

Heard at Field House on 22 April 2025

DECISION AND REASONS
Introduction
1. This appeal concerns a situation in which the First-tier Tribunal (Judge Hughes - “the judge”) decided the appellant’s case on the basis of the law relating to the deprivation of British citizenship as it was then understood, but a subsequent judgment of the Court of Appeal, which is of declaratory effect, changed that understanding. The respondent accepts that the judge erred in law, albeit through no fault of his own, but contends that the error is immaterial.
2. The appellant came to the United Kingdom in February 2022 and claimed asylum using the identity ‘Srur Salah Omer’, with a date of birth of 1 February 1985 and the place of birth being Baghdad, Iraq (he asserted that the family had moved from there to Kirkuk in the early 1990s). The asylum claim was refused, but the appellant was granted 4 years’ exceptional leave to remain under a relevant policy. In 2006, the appellant applied for indefinite leave to remain using the same identity. This was granted in October of that year. Again using the same identity, in 2008 the appellant applied for naturalisation as a British citizen. This was granted and he was issued with a certificate of naturalisation on 8 October 2008.
3. In 2020, the appellant provided information to the respondent which indicated that the identity he had used throughout his time in this country was false. In 2021, the appellant accepted this to be the case. He provided an explanation for why he had used the false information, claiming that he had been provided with it by an agent and then been too afraid to reveal his true identity, namely that he was in fact ‘Sroud Salah Omer, born on 9 September 1978, and was from Sulamaniyeh in the KPI.1
4. The respondent undertook further investigations and on 21 April 2023, served the appellant with a decision to deprive him of his British citizenship pursuant to section 40(3) of the British Nationality Act 1981, as amended. The respondent concluded that:
(a) The appellant had been dishonest when using the false identity in the relevant applications for leave to remain and then for British citizenship;
(b) In all the circumstances, it was appropriate to exercise the statutory discretion to deprive the appellant of his British citizenship;
(c) Article 8 would not be violated if the appellant were to be deprived of his British citizenship.
5. The appellant appealed to the First-tier Tribunal.

The judge’s decision
6. If I may say so, the judge’s decision is a clear and thorough piece of work. The core elements of the decision are as follows.
7. First, the judge concluded that the appropriate legal framework for the consideration of a deprivation of citizenship appeal was, in essence, that set out in Chimi (deprivation the appeals; scope and evidence) Cameroon [2023] UKUT 00115 (IAC): [26].
8. Second, and following from the above, the judge concluded that the precedent fact issue under section 40(3) of the 1981 Act (i.e. whether the appellant had acted dishonestly when obtaining his British citizenship) could only be considered on a public law basis. In other words, the judge could not make his own findings on the evidence, but was confined to deciding whether the respondent’s conclusion on dishonesty was lawful: [28], [30]-[31];
9. Third, the question of the materiality of any dishonesty to the granting of citizenship could only be challenged through public law grounds: [37].
10. Fourth, the respondent’s exercise of discretion was also only susceptible to challenge through the prism of public law grounds [28] and [40].
11. Fifth, Article 8 was to be considered on a wider merits-based approach, taking care not to conduct a proleptic assessment: [28].
12. Sixth, the judge found that the respondent’s conclusions on the precedent fact, materiality, and discretion, were all lawful: [38]-[39], [42]-[46].
13. Seventh, depriving the appellant of his British citizenship was not disproportionate, with specific reference to private life (the appellant had not put forward any substantial case in respect of family life): [55]-[73].
14. Accordingly, the appeal was dismissed.

The grounds of appeal and grant of permission
15. Five grounds of appeal were put forward. These can be summarised as follows:
(a) The judge erred by confining himself to considering public law grounds in respect of the precedent fact issue;
(b) The judge failed to take certain matters into account when considering whether the respondent’s conclusion on dishonesty was lawful;
(c) The judge failed to address relevant evidence and submissions relating to the respondent’s discretion;
(d) The judge failed to make credibility findings, with particular reference to the issue of dishonesty;
(e) The judge engaged in undue speculation when conducting the proportionality exercise under Article 8.
16. Permission was initially refused by the First-tier Tribunal, but granted by the Upper Tribunal on renewal. In so doing, Upper Tribunal Judge Stephen Smith (as he then was) noted that the Court of Appeal had recently granted permission to appeal in the case of Chaudhry v SSHD, which concerned issues arising in the present case. Judge Smith granted permission on all grounds and stayed the proceedings pending judgment in Chaudhry.
17. The Court handed judgment down on 17 January 2025.

Chaudhry v SSHD [2025] EWCA Civ 16
18. At [1] of his judgment, Dingemans LJ (with whom Underhill and Edis LJJ agreed) summarise the issue as follows:
“This is an appeal about deprivation of citizenship. In particular this appeal raises the issue about the test to be applied by the First-tier Tribunal (Immigration and Asylum Chamber) (FTT) when hearing an appeal from a decision of the respondent Secretary of State for the Home Department, made pursuant to section 40(3) of the British Nationality Act 1981 (the BNA 1981), to deprive a person of British citizenship.”
19. Having analysed the state of the law in detail, and having regard to a change of position adopted by the respondent, the core conclusions in respect of the proper approach to be taken in deprivation appeals are set out at [54]:
“For these reasons in my judgment the proper approach to an appeal 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.”
20. That authoritative guidance is declaratory and represents the law as it was at the time of the judge’s decision.
21. I note that the same constitutional the Court gave judgment in Daci v SSHD [2025] EWCA Civ 18 on the same day as Chaudhry. For present purposes, I need not set out what is said in Daci as all relevant matters are contained within Chaudhry.
22. Following the judgment in Chaudry, directions were issued for the parties to provide skeleton arguments/responses to it.

The appellant’s skeleton argument
23. Mr Fazli provided a skeleton argument, dated 14 February 2025. In summary, this follows the grounds of appeal and contend that the judge’s approach was wrong in law and that the error was material.

Rule 24
24. On the respondent’s behalf, Mr Wain, Senior Presenting Officer, drafted a rule 24 response, dated 17 March 2025. In summary, this contends that the accepted error of approach committed by the judge in relation to the precedent fact issue was immaterial to the outcome of the appeal. In several paragraphs, the response asserts that the judge made “findings” as to the appellant’s dishonesty and that, on the evidence, the appellant must have been dishonest. In respect of the grounds of appeal relating to the exercise of discretion and Article 8, the response contends that the judge was entirely correct to conclude as he did.

The error of law bundle
25. The appellant’s representatives failed to provide a composite error of law bundle. I did not receive an adequate explanation for this. In the event, the relevant materials were already on file and available to the respondent. However, compliance with basic directions is imperative. Those representing the appellant must ensure that similar non-compliance does not occur in future.

The hearing
26. Ms Lecointe was provided with the appellant’s skeleton argument at the hearing, but confirmed that she was ready to proceed.
27. Both representatives agreed (as they were bound two) that the applicable legal framework in deprivation cases is as set out in Chaudhry. Ms Lecointe confirmed that in light of Chaudhry, the respondent accepts that the judge erred in his approach to the precedent fact issue, but she maintained that the error was immaterial.
28. Both representatives agreed that the test for materiality is that set out in ASO (Iraq) v SSHD [2023] EWCA Civ 1282, at [43].
29. Mr Fazli agreed that the first, second, and fourth grounds of appeal were bound up together; all related to the precedent fact issue. He submitted that the judge had not made his own independent findings of fact on the evidence. The dishonesty test set out in Ivey required a decision-maker to assess the individual’s state of mind at the relevant time. Mr Fazli submitted that because the judge had failed to do this, his error in approach on the precedent fact issue was material. Whilst the judge might nonetheless have found the appellant to have been dishonest, it was not inevitable that this would have been the outcome. Mr Fazli submitted that the precedent fact error, if made out, undermined the judge’s conclusions on discretion and Article 8.
30. Ms Lecointe relied heavily on the rule 24 response. She submitted that the judge had considered all of the evidence and both sides of the respective arguments. There was no material error.
31. At the end of the hearing I reserved my decision.

Conclusions
32. Having exercised appropriate judicial restraint before interfering with his decision, I conclude that the judge did err in law and that the error was material.
33. I reiterate what I have said previously as to the thoroughness of the judge’s decision. In most respects, his decision is entirely sound. The error lies in events entirely outside of his control, namely the judgment in Chaudhry.
34. It is clear from Chaudhry that it was for the judge to consider for himself the evidence relating to the factual issue of the appellant’s dishonesty at the material time.
35. Contrary to what appears to be said in the rule 24 response at [10], [12] and [13], the judge did not in fact make any “findings” on the appellant’s evidence relating to dishonesty. Instead, and understandably, the judge proceeded on the basis that he was confined to assessing the lawfulness of the respondent’s finding on dishonesty. That is a different exercise altogether. I am satisfied that the judge did not undertake what might be described as a belt-and-braces approach by adopting the public law challenge approach and also an alternative merits-based approach.
36. It is right to acknowledge that the rule 24 response also asserts that a finding of dishonesty would have been made even if the judge had adopted the correct approach to the precedent fact issue.
37. As stated earlier, the core question here is that of materiality. The test is high: would the result have inevitably been the same if the error had not been committed. Put another way, would any rational First-tier Tribunal have been bound to come to the same conclusion on dishonesty?: ASO at [43].
38. The appellant accepted that he had used the false identity at all stages. In isolation, that might appear to indicate dishonesty and that the judge would inevitably have reached that conclusion if he had conducted a fact-finding exercise of his own. However, the following considerations lead me to conclude that the judge’s error in approach was material.
39. First, the nature of the error is of itself significant. The judge believed his jurisdiction to be very limited, whereas it actually encompassed a full merits-based approach to the evidence. This is not a case in which the judge made his own findings of fact, but perhaps had overlooked certain evidence when doing so. He made no such findings at all.
40. Second, the error is to be seen in the context of the serious consequences for the appellant in being deprived of his British citizenship.
41. Third, the appellant had put forward an explanation as to why he used the false identity, albeit that the evidence was relatively thin and that identity had been used over the course of several applications. This is not a case in which the appellant has expressly accepted that he was dishonest.
42. Fourth, Ivey requires a decision-maker (in this case and in light of Chaudhry, that being the judge) to reach a finding on the appellant’s state of mind at the material time. That was not done as a result of the error of approach.
43. Fifth, whilst it may be that the judge, or indeed a number of other properly-directed judges, would have found against the appellant on the issue of dishonesty, I cannot say that such a conclusion was inevitable or the only rational outcome.
44. Sixth, whilst I see no errors in respect of the judge’s conclusions on the discretion and Article 8 issues, it must follow from what I have said about the precedent fact error that no other element of the judge’s decision can stand. If the judge had applied the correct approach and if he had found that the appellant was not dishonest, the precedent fact would not have been established and the appeal would have been allowed without more.
45. I therefore set aside the judge’s decision in its entirety.

Disposal
46. In the ordinary course of events, this appeal would be retained in the Upper Tribunal for the decision to be re-made. However, the nature of the material error of law I have identified, together with the necessary fact-finding exercise now required, points strongly towards remittal being the appropriate course of action. In particular, there have been no judicial findings in respect of the dishonesty issue and, to that extent at least, the appellant has been deprived of a level of first-instance consideration.
47. In the circumstances, this appeal will be remitted to the First-tier Tribunal with no preserved findings or conclusions.
48. Whilst listing is of course a matter for the First-tier Tribunal, I would urge it to deal with this appeal as soon as possible.

Anonymity
49. There has never been an anonymity order in place and there is no basis on which I should make one at this stage.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I exercise my discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 and set aside the decision of the First-tier Tribunal.
I remit the case to the First-tier Tribunal.

Directions to the First-tier Tribunal
1. This appeal is remitted to the First-tier Tribunal (Hatton Cross hearing centre) with no preserved findings or conclusions;
2. The remitted appeal is to be conducted in light of this error of law decision and the law as stated in Chaudhry and Daci, subject to any further binding guidance;
3. The remitted appeal will not be heard by First-tier Tribunal Judge Hughes, but should be heard by a salaried judge.

H Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 23 April 2025