CA-2024-001138 - [2025] EWCA Civ 1337

The SSHD applied for permission to appeal. This was initially refused by a judge of the FTT but granted by UTJ Gleeson on 20 November 2022. A hearing accordingly took place on 8 August 2023 before a two-judge panel of the UT (UTJ Canavan and Deputy UTJ Symes) at which Mr Onuzi was legally represented. The UT’s reserved decision was issued on 29 November 2023. After a careful analysis of the law relating to deprivation of citizenship; the policy guidance on the subject in force at the time of the deprivation decision; and the relevant case law, in particular the decisions of the UT in Sleiman and of this court in Shyti v SSHD [2023] EWCA Civ 770; [2023] Imm. A.R. 1563, the UT identified at [45] what they described as “the broad principles arising from the statutory scheme and the relevant case law”:

“(i)

Each case is fact sensitive. In the absence of a statutory definition of ‘good character’, the starting point is for the Secretary of State to decide, subject to general principles of administrative law, whether a person is of good character for the purpose of granting citizenship under section 6(1) and Schedule 1 BNA 1981.

(ii)

Any negative behaviour that might cast doubt on whether a person is of good character is likely to be directly material to the assessment of the statutory requirement, whether it played a role in the application for naturalisation itself or took place before the application.

(iii)

In the majority of cases where negative behaviour that might cast doubt on whether a person is of good character has been dishonestly concealed from the Secretary of State, the fact that the negative behaviour might not have been directly relevant to an earlier grant of leave is unlikely to make any material difference to the assessment under section 40(3) BNA 1981. It is for the Secretary of State to decide, subject to general principles of administrative law, whether the negative behaviour might have made a material difference to the assessment of good character under section 6(1) BNA 1981 had the information been known at the time.

(iv)

The omission of a fact that might have cast doubt on whether a person is of good character when they applied for naturalisation is likely to be material to the question of whether a person ‘obtained’ citizenship by the dishonest concealment of a material fact for the purpose of section 40(3) BNA 1981.

(v)

The concept of a chain of causation being broken is only likely to be relevant in cases where there was full disclosure and the Secretary of State exercised discretion to grant leave to remain or naturalisation while in full possession of the facts.

(vi)

The decision in Sleiman was based on limited argument and should be read in the full context of the statutory scheme and other relevant case law.”

The error of law decision of the UT panel concluded as follows:-

“46.

The appellant maintained the deception that he was an asylum seeker from Kosovo in the initial asylum application, the application for further leave to remain, and the application for naturalisation. At no point during that process did he disclose to the respondent that he knowingly made a false application for asylum (as opposed to an application that was simply unsuccessful).

47.

In relation to the first ground, we conclude that the judge’s reliance on Sleiman was misplaced for the reasons explained above. The fact that the respondent exercised discretion to grant the appellant leave to remain following a series of mistakes did not break a chain of causation when the full facts were not known at the time. The judge failed to consider whether it was open to the respondent to find that the exercise of discretion to grant ILR might have been different had the full facts been known. The judge failed to consider whether it was open to the respondent to find that naturalisation was ‘obtained by means of’ a dishonest concealment of a fact that was likely to be material to the assessment of the good character requirement when the appellant applied for naturalisation in 2007.

48.

In relation to the second ground, we conclude that, despite a self-direction to the balancing exercise required under Article 8, the decision is devoid of any assessment of the weight to be given to the public interest considerations relating to deprivation of citizenship.

49.

For the reasons given above, we conclude that the First-tier Tribunal decision involved the making of an error of law. The whole decision is set aside. The normal course of action would be for the Upper Tribunal to remake the decision even if it involves making findings of fact. We see no reason to depart from that course. The decision will be remade at a resumed hearing in the Upper Tribunal.”

The resumed hearing took place before Deputy UTJ Symes on 7 February 2024. On this occasion Mr Onuzi represented himself, but provided a document, drafted by his solicitors, headed “Submission on resumed hearing”. This argued that his case should be assessed against the “real world” backdrop, which here was an administrative error leading to ILR. The rationale for the grant of ILR had been “the delays and mistakes already made on this case” which led the relevant caseworker to propose “on balance that the Appellant should be granted ILR”. In the light of this rationale, it was submitted that it was “unnecessary for the UT to consider whether it was open to the respondent to find that the exercise of discretion to grant ILR might have been different had the full facts been known”.

DUTJ Symes held:-

“15.

The Appellant was not granted ILR pursuant to any general concession, nor under one relating to family membership. The grant was based on his own individual circumstances, which included his representations as to his nationality and identity, in the context of a significant dose of Home Office maladministration. One can envisage cases under the family ILR policy just cited where one family member obtains ILR based on the family’s general circumstances, not their own, where a decision maker might reasonably conclude that that individual’s previous dishonesty, in the language of paragraph 55.7.4, “may be irrelevant”. For example, they might have been a minor at the time or to have been under some mental impairment meaning that they could not reasonably be held responsible for a dishonesty perpetrated in their favour [sic]. Indeed this seems to be just the scenario that was envisaged by Chapter 55, once one reads it in the context of the family ILR policy, whereby leave was granted in line with that grant to all dependants who met the basic criteria. Or one can imagine a country-oriented policy that might have benefitted nationals from their true country of origin such that the fact that the grant of leave was motivated by some other concession made no material difference to their immigration history prior to naturalisation.

16.

Taking the approach in Chimi [2023] UKUT 115 (IAC) to the relevant issues, I should consider these questions:

(a)

Did the Secretary of State materially err in law when deciding that the condition precedent in s 40(2) or s 40(3) of the British Nationality Act 1981 was satisfied? If so, the appeal falls to be allowed. If not,

(b)

Did the Secretary of State materially err in law when deciding to exercise her discretion to deprive the appellant of British citizenship? If so, the appeal falls to be allowed. If not,

(c)

Weighing the lawfully determined deprivation decision against the reasonably foreseeable consequences for the appellant, is the decision unlawful under s 6 of the Human Rights Act 1998? If so, the appeal falls to be allowed on human rights grounds. If not, the appeal falls to be dismissed.

17.

I do not find the Secretary of State erred in law as to the condition precedent in s 40(3) BNA 1981. The Appellant maintained a fraud throughout his residence in the UK. He did not make full disclosure of the relevant circumstances either at the ILR or citizenship stage of his history. There was nothing in the decision-making history to break the causative link between his fraud and the grant of citizenship. There was no exercise of discretion in his favour made with full knowledge of the relevant facts. The omission of a material fact in the naturalisation application is likely to be material to obtaining citizenship by dishonest concealment such that “naturalisation was obtained by means of … fraud”, and on the facts here, I so find. Nor was there any material error of law in the context of discretion to deprive. The considerations identified in the refusal letter were perfectly relevant ones and no material factor was overlooked.

18.

The submissions provided by OTS Solicitors do not dissuade me from this conclusion. Those essentially invited me to depart from the legal directions made at the error of law stage. It will be rare for such an invitation to be taken up, but of course if the arguments made were sufficiently persuasive it is possible that I would accede to them. However I decline to do so.

(a)

I do not accept that the reference in Chapter 55 to knowledge of the relevant facts at the time the citizenship application was considered in any way limits the relevance of events leading to the grant of indefinite leave to remain. To do so would blind the Home Office to relevant considerations going to good character, contrary to a central tenet of good public law decision making.

(b)

The “real world” backdrop to the case indubitably includes the appellant’s historic and prolonged dishonesty.

(c)

The appellant's very presence in the UK was predicated on a false asylum claim and the delays and mistakes in his case arose in that context.

(d)

I do not accept that the fact that Shyti involved old Immigration Rule 395C, which expressly identified good character as a relevant consideration, indicates that discretionary decision making would exclude good character as a material criteria. I cannot envisage a rational administrative system excluding good character as relevant, at least absent an express statement to such effect.”