Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005848

First-tier Tribunal No: DC/00009/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 18th of June 2025

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

OLSI BEHELULI
Respondent

Representation:
For the Appellant: Nicholas Wain, Senior Presenting Officer
For the Respondent: Ronan Toal, instructed by Wilson Solicitors LLP

Heard at Field House on 10 June 2025

DECISION AND REASONS
1. The Secretary of State appeals with the permission of Upper Tribunal Judge Frances against the decision of First-tier Tribunal Judge Dhanji, who allowed Mr Beheluli’s appeal against the decision to deprive him of his British citizenship on the basis that it was obtained by fraud.
2. The issue before me may be simply stated. It is whether the First-tier Tribunal erred materially in law in allowing the appeal. It is not my function to assess the case on its merits; I am only concerned at this stage with the question of whether the First-tier Tribunal erred in law.
3. To avoid confusion, I will refer to the parties as they were before the First-tier Tribunal: Mr Beheluli as the appellant and the Secretary of State as the respondent.
Background
4. I am grateful to the judge for his concise yet comprehensive summary of the relevant background. I have taken what follows from his decision.
5. The Appellant is 33 years old. It is not disputed that as well as having acquired British citizenship, the Appellant is also an Albanian national.
6. On 23 November 2000, the Appellant arrived in the United Kingdom with his parents and sister. He was nine years old on the date of his arrival. The Appellant’s father claimed asylum on arrival and the Appellant, his mother and sister were dependants on that asylum claim. The asylum claim was refused and an appeal against the refusal decision was dismissed on 17 December 2001. The Appellant’s father lodged further submissions but these were also refused.
7. On 12 April 2002, the Appellant and his family made a human rights claim. This claim was refused. An appeal was filed against this refusal decision, which was allowed in a decision dated 31 May 2006. The Appellant and his family were issued with discretionary leave to remain. Somewhat confusingly, almost simultaneously, the Appellant and his family were also granted indefinite leave to remain.
8. On 14 February 2014, the Appellant submitted an application for naturalisation as a British citizen. On 10 April 2014, the Appellant was issued with a certificate of naturalisation as a British citizen.
9. On 7 October 2014, the Appellant was arrested for drug offences. The Appellant was charged with Conspiracy to supply Class A drugs (heroin) alongside two co-defendants. The Appellant entered not guilty pleas to these charges. On 31 March 2015, the Appellant was convicted after trial. His co-defendants were also convicted. On 1 April 2015, the Appellant was sentenced to 11 years’ imprisonment for this offence (“the index offence”).
10. Following the Appellant’s sentencing, a timetable was set for confiscation proceedings under the Proceeds of Crime Act 2002 (“POCA 2002”). On 23 July 2015, the National Crime Agency (“the NCA”) filed a statement of information in accordance with section 16(3) POCA 2002. On 15 December 2015, the Appellant responded to the NCA’s statement of information. In preliminary discussions between counsel before a confiscation hearing on 7 January 2016, prosecution counsel informed the Appellant’s counsel that the Crown was willing to agree a confiscation figure of the amount of money in the Appellant’s bank account (which at that time was £16,400) if the Appellant agreed to a criminal benefit figure that was equivalent to a third of the value of the drugs that were seized as part of his offending (which came to £79,333). The Appellant agreed to this and, at a hearing on 5 February 2016, HHJ Blacksell QC made an order that the benefit from the Appellant’s criminal conduct was £79,333 and that £16,624.70 was to be confiscated from him. I return to the POCA proceedings in more detail below.
11. Following the Appellant’s conviction, his case was referred to the Respondent’s Status Review Unit (“the SRU”). On 4 October 2021, the SRU sent the Appellant a letter informing him that because the Appellant had engaged in criminality prior to his naturalisation he may not have been entitled to naturalise as a British citizen. On 22 November 2021, the Appellant replied to the SRU’s letter, rejecting the assertion that he had been involved in criminality prior to his naturalisation application and rejecting the assertion that he had used fraud when applying for naturalisation. On 26 September 2022, the SRU sent the Appellant a further letter, which contended that the details of the Appellant’s tax and bank account records strongly suggested that the Appellant had benefited from his criminality prior to the offences for which he was arrested in October 2014 and convicted in 2015. On 14 November 2022, the Appellant replied, providing an account for the origin of the money identified in the SRU’s letter to show that the money was not from drug offending. On 2 March 2023, the Respondent made the Decision, depriving the Appellant of his British citizenship.
The Secretary of State’s Decision
12. The respondent decided to deprive the appellant of his British citizenship on the basis that he had obtained naturalisation by false representation or concealment of a material fact, under section 40(3) of the British Nationality Act 1981. There was no suggestion that it was conducive to the public good to deprive the appellant of his British citizenship on account of his criminality, under section 40(2) of the same Act.
13. The respondent concluded that the appellant had been involved in criminality at the time that he made his application for naturalisation in February 2014. He had nevertheless failed to declare that involvement on his application form and had answered “no” to the question which asked whether there was anything which reflected adversely on his character.
14. The respondent’s conclusion that the appellant had been involved in criminality in February 2014 was based on two strands of reasoning, as summarised at [26]-[27] of Mr Toal’s skeleton argument before the First-tier Tribunal.
15. The first strand of reasoning concerned the POCA proceedings, which were thought by the respondent to show that the appellant had been involved in drug dealing appreciably before his application for naturalisation. The respondent reasoned that the ‘NCA assessed the full criminal benefit during the six years prior to your arrest as being £79,000’ and the A ‘accepted the NCA’s assessment that a total of £79,000 was likely to have been from the proceeds of crime’.
16. The second strand of reasoning was that the appellant must have established a fairly senior role in the supply of heroin, since he was entrusted with more than eight kilogrammes of high-purity heroin with a street value of more than £200,000. The respondent reasoned that ‘it is incredible to accept that you were new to the drug trade and that [the incident resulting in the A’s conviction] was the first time you had engaged in such activities. It is beyond logic to accept that you would be trusted with such a consignment of drugs if you were not already involved in the supply of Class A Drugs’.
The Decision of the First-tier Tribunal
17. The judge heard the appeal at Hatton Cross on 28 October 2024. Mr Toal represented the appellant, as he did before me. The respondent was represented by a Presenting Officer (not Mr Wain). The judge heard no evidence from the appellant. He heard submissions from the advocates before reserving his decision.
18. In his reserved decision, the judge found that the respondent had made a material public law error in concluding that the appellant was involved in criminal activity before he made his application for naturalisation. In accordance with the decision of the Upper Tribunal in Chimi [2023] UKUT 115(IAC), the judge therefore allowed the appeal. I do not propose to rehearse the carefully reasoned basis on which the judge reached that conclusion. It suffices to note that he concluded at [25] that the respondent had
“fundamentally misunderstood the outcome of the POCA proceedings against the appellant with the result that the Respondent drew conclusions from the evidence that were not reasonably open to her and unlawfully failed to take sufficient account of materially relevant considerations.”
The Appeal to the Upper Tribunal
19. The respondent sought permission to appeal against the judge’s decision, asserting that he had erred in law by misunderstanding the arguments in the decision under challenge. Judge Athwal refused permission on 13 December 2024 but the application was renewed before Upper Tribunal Judge Frances, who considered the grounds to be arguable and directed the parties to file skeleton arguments dealing with the impact of the Court of Appeal’s decision in Chaudhry v SSHD [2025] EWCA Civ 16; [2025] 2 WLR 696.
20. Skeleton arguments were duly filed by both parties. The respondent’s skeleton contained an application to amend the grounds in light of Chaudhry, so as to contend that the judge had misdirected himself in law by following Chimi. During the course of his submissions, Mr Toal confirmed that he was not prejudiced by that application and was prepared to deal with the point. I noted that he had adopted the same stance in his skeleton argument. In the circumstances, I permitted the grounds to be amended to include this point.
Submissions
21. I heard lengthy submissions from both advocates. I intend them no discourtesy in providing only a short outline of their submissions at this stage of my decision. I will obviously return to the substance of what was said in the course of my analysis.
22. For the respondent, Mr Wain submitted that the judge had erred in law in following Chimi. He submitted that the judge had misunderstood what was said by the Secretary of State about the POCA proceedings. The judge had in any event erred, Mr Wain submitted, in failing to deal with the second strand of the Secretary of State’s reasoning, concerning the inherent lack of likelihood of the appellant being entrusted with a significant amount of drugs without prior significant prior involvement in the trade.
23. For the appellant, Mr Toal accepted that the judge had erred in following Chimi but he submitted that any such error was immaterial to the outcome. The judge had been correct, he submitted, in his understanding and analysis of the respondent’s reliance on the POCA proceedings. Mr Toal accepted that the judge had failed to deal with the second strand of the respondent’s reasoning but he submitted that any such failure was immaterial because the judge would inevitably have found for the appellant if he had turned his mind to that point.
24. I reserved my decision after Mr Wain had made a brief reply to Mr Toal’s submissions.
Analysis
25. The judge undertook a detailed analysis of the first strand of the respondent’s reasoning at [25]-[35] of his decision. His reasoning contained reference to the respondent’s decision at [26]-[27]; a careful analysis of the relevant legal framework under POCA at [28]-[29]; and scrutiny of the confiscation proceedings before the Crown Court at [30]-[33]. At [34], having undertaken that analysis and having taken Mr Toal’s submissions into account, the judge reached the conclusion that
“the only rational conclusion that can be reached from an analysis of the evidence before the Respondent when the Decision was made was that, by the time of the POCA hearings, the Crown’s position was that the Appellant’s benefit from his general criminal conduct over the six years to the date on which proceedings against him began for the index offence in 2014 was £79,333, which represented a third of the value of the drugs involved in the index offences, and that the Court made a decision concluding that this was the Appellant’s benefit from general criminal conduct over that period.”
26. At [35], the judge concluded that the respondent had failed in the decision under challenge to grasp a point which he considered to be of “fundamental importance”, which was
“that the relevant benefit figure that was decided by the Court was the amount suggested by the Crown (and agreed by the Appellant) to reflect a third of the value of the drugs involved in the index offence. This point was important as this meant that by the time of the final POCA hearings the Crown accepted that the Appellant’s benefit from any criminal conduct by the Appellant between 2008 and 2014 was limited to the value of the drugs involved in the index offences, which occurred after the Appellant naturalised.”
27. The judge concluded that the respondent, instead of coming to terms with that aspect of the POCA proceedings, had instead relied heavily in the decision under challenge on what she considered to be an acceptance on the appellant’s part, during those proceedings, that he had engaged in criminality during the six years preceding his arrest in 2014. So it was that the judge found that the respondent’s decision was vitiated by public law error
28. The respondent submits that the judge was wrong to reach these conclusions, and that a fair reading of the respondent’s decision as a whole did not support his analysis. Despite Mr Wain’s submissions in support of that argument, I am unable to accept it.
29. As the judge found, the respondent proceeded on the basis that the NCA’s case in the POCA proceedings was that the appellant had been involved in drug dealing for six years prior to his arrest but it did not. As the judge demonstrably understood, the NCA’s reference to a six year period was because of the statutory assumption, made as a result of s10(2) of POCA itself, that any property transferred to the defendant at any time after the first day of the period of six years ending with the day on when proceedings for the offence concerned was obtained by the defendant as a result of his general criminal conduct and at the earlier time he appears to have held it. The judge made reference to that assumption, and to the others contained within s10 at [28] of his decision.
30. The judge was also correct, in my judgment, to find that the respondent had failed to focus on, or to understand, the outcome of the POCA proceedings, rather than the NCA’s initial case. The NCA’s initial case in the POCA proceedings was set out in a statement made by Mr Sylvester in compliance with s16 of that Act but the outcome of the proceedings was to be understood by reference to the final order of HHJ Blacksell QC, the attendance notes from counsel, and the letter from the solicitors (Stokoe Partnership Solicitors) who represented the appellant in those proceedings.
31. Whilst the respondent made reference to those documents in her decision, the judge was entitled to find that she had failed to understand their real import. As Mr Toal submitted, the total benefit figure eventually accepted by the NCA and by the court was £79,333, which represented simply one third of the value of the drugs with which the appellant was caught. In the final analysis, the appellant had successfully challenged the NCA’s initial calculations, and the respondent was wrong to conclude otherwise at [16] of her decision. Mr Toal described that paragraph as “mistaken throughout”. The judge agreed with that submission, and was correct to do so.
32. In my judgment, therefore, the judge’s analysis of the first strand of the respondent’s case – which rested on the provenance of his funds – was correct. That strand of the respondent’s case was vitiated by public law error and the judge was entitled so to find.
33. The judge proceeded on the basis that the material public law error in the decision under challenge meant that he should allow the appeal. At the time, that was to decide the case in accordance with Chimi. To decide the case in that way meant that the judge was not required to go on to consider the second strand of the respondent’s case; an important aspect of the respondent’s reasoning had fallen away and the decision fell to be remade. The relief granted in an application for judicial review would likely have been the same.
34. Had the judge had the benefit of Chaudhry, however, he would have gone on to consider the factual case advanced by the Secretary of State despite the error in the respondent’s reliance on the POCA material. Mr Toal accepts that the judge failed, through no fault of his own, to deal with that question, but he submits that any such failure was immaterial because the judge would have been bound to find in the appellant’s favour.
35. I do not accept Mr Toal’s submission in that regard. It is important in this context to recall two dates. The appellant made his application for naturalisation on 4 February 2014, and declared that there was nothing which might reflect adversely on his character. On 7 October 2014, he was arrested with more than eight kilogrammes of high purity heroin on his way to a “stash house”. The following day, he was charged with involvement in a conspiracy to supply drugs of Class A. Quite aside from all that was said by the respondent about the POCA proceedings, she also made the common-sense point that the value of the drugs (£238,000) tended to suggest that the appellant’s involvement in the heroin trade had been rather more longstanding than 8 months. As the respondent noted, that was also the view of the judge who sentenced the appellant for his involvement in the conspiracy.
36. Mr Toal accepts, as he must, that he has to establish that the judge would inevitably have rejected that submission if he had turned his mind to it: ASO (Iraq) v SSHD [2023] EWCA Civ 1282 refers. He notes in this connection that the POCA proceedings resulted in a benefit figure which only related to the drugs with which the appellant was apprehended and that the judge’s sentencing remarks were to be considered in that light. He also notes that there is nothing in the papers, when they are properly understood, which provides a date of when the offending first began. There is, for example, no surveillance or other evidence from the NCA and there is no opinion evidence from a police officer, for example, to support the suggestion that only a senior and trusted member of an organised criminal gang would be entrusted with such a quantity of drugs. Ultimately, Mr Toal submitted, there was no evidence of sufficient cogency to establish that the appellant had been involved in criminality at the time that he said that there was nothing adverse to declare about his character.
37. In my judgment, however, these submissions do not amount to a complete and incontrovertible answer to the common-sense point made by the Secretary of State. The sentencing judge (Mr Recorder Enoch KC) obviously did not have the benefit of the outcome of the POCA proceedings but formed a view, given his experience, that the appellant was not a “one off courier”. Whether or not there was a statement from a police officer, and whether or not there was further evidence from the NCA, that view was deserving of respect and was capable of supporting the common-sense stance of the Secretary of State. The burden was on the Secretary of State, as Mr Toal quite properly reminded me, but there was clearly a proper evidential basis on which that burden could have been discharged. The result was not an inevitability, and the judge’s error was consequently a material one.
38. It is as a result of that conclusion that I must set aside the judge’s decision. He was not at fault in following Chimi, and in deciding that the public law errors in the decision under challenge required him to allow the appeal. Nor, as I have sought to explain, was he at fault in deciding not to go on to consider the second strand of the respondent’s reasoning; the authorities at the time did not require him to engage in a full merits assessment of the case. Given what was said in Chaudhry, however, that assessment must now take place.
39. I have reflected carefully on whether to preserve any findings of fact which were made by the First-tier Tribunal. In doing so, I have been assisted by the guidance given in AB (preserved FtT findings; Wisniewski principles) Iraq [2020] UKUT 268 (IAC); [2020] Imm AR 1451. The difficulty, it seems to me, is that the judge in the First-tier was not really called upon to make findings of fact to which those principles neatly apply. As he was following the public law approach which was then in force, his conclusions were directed towards ascertaining whether the respondent’s decision was vitiated by legal error. The judge accordingly did not direct himself in accordance with the civil standard. Nor did he even note that the burden of proof was on the respondent. Ultimately, therefore, I do not think that there are findings of fact which can properly be preserved, although I make plain my agreement with the judge’s analysis at [34] of his decision regarding the errors made by the respondent in her evaluation of the POCA material.
40. I have reflected with equal care on the subject of venue, and have taken into account the guidance in Begum (remaking or remittal) [2023] UKUT 46 (IAC); [2023] Imm AR 558. There must evidently be a further hearing, and it will be one in which there are no preserved findings of fact for the reasons above. The judge who hears the case will be able to take account of evidence which was not before the Secretary of State, including the oral evidence of the appellant. That is one of fundamental differences between the approach required by Chimi and that required by Chaudhry. In all the circumstances, I consider the proper course to be for the matter to be remitted to the First-tier Tribunal for consideration afresh.
41. Whilst I make no direction to this effect, the First-tier Tribunal might consider it appropriate to hold a case management hearing in advance of any substantive hearing, so as to manage the timetabling of any further evidence which is to be adduced by either side.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law. The decision is set aside. The appeal is remitted to the First-tier Tribunal to be heard afresh by a different judge.

Mark Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 June 2025