Case No. UKUT-00085-(IAC)

N ACTS Before THE HON. MR JUSTICE LANE, PRESIDENT UPPER TRIBUNAL JUDGE KOPIECZEK Between BA (ANONYMITY ORDER MADE) Appellant and SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation:- For the Appellant: Mr Z. Malik, counsel, instructed by R Spio & Co Solicitors For the Respondent: Mr D. Clarke, Senior Home Office Presenting Officer (1) In an appeal under section 40A of the British Nationality Act 1981, the Tribunal must first establish whether the relevant condition precedent in section 40(2) or (3) exists for the exercise of the Secretary of State’s discretion to deprive a person (P) of British citizenship. (2) In a section 40(2) case, the fact that the Secretary of State is satisfied that deprivation is conducive to the public good is to be given very significant weight and will almost inevitably be determinative of that issue. (3) In a section 40(3) case, the Tribunal must establish whether one or more of the means described in subsection (3)(a), (b) and (c) were used by P in order to obtain British citizenship. As held in Pirzada (Deprivation of citizenship: general principles) [2017] UKUT 196 (IAC) the deception must have motivated the acquisition of that citizenship. (4) In both section 40(2) and (3) cases, the fact that the Secretary of State has decided in the exercise of her discretion to deprive P of British citizenship will in practice mean the Tribunal can allow P’s appeal only if satisfied that the reasonably foreseeable consequence of deprivation would violate the obligations of the United Kingdom government under the Human Rights Act 1998 and/or that there is some exceptional feature of the case which means the discretion in the subsection concerned should be exercised differently. (5) As can be seen from AB (British citizenship: deprivation: Deliallisi considered) (Nigeria) [2016] UKUT 451 (IAC), the stronger P’s case appears to the Tribunal to be for resisting any future (post-deprivation) removal on ECHR grounds, the less likely it will be that P’s removal from the United Kingdom will be one of the foreseeable consequences of deprivation. (6) The appeal is to be determined by reference to the evidence adduced to the Tribunal, whether or not the same evidence was before the Secretary of State when she made her decision to deprive. DECISION AND REASONS A. Introduction 1. The appellant was born a Ghanaian citizen in 1965. He was naturalised as a British Citizen in 2013. In his application for naturalisation, the appellant produced a Ghanaian passport, in the name of BA. 2. The appellant answered “no” to the entirety of the questions in section 3 of the form, dealing with good character. He accordingly denied that he had any criminal convictions and said he had not been engaged in any other activities which might have indicated that he may not be considered a person of good character. 3. In November 2 01 5, the respondent wrote to the appellant to say that she had reason s to believe the appellant had not told the truth in his application for British citizenship . The respondent gave details of information received by her, indicating that before acquiring indefinite leave to remain in the United Kingdom and subsequently British Citizenship, the appellant had obtained or attempted to obtain numerous UK drivers ’ licences and British passports in different identities. 4. The respondent further explained that a photograph submitted with the appellant’s application for naturalisation matched the photograph of the appellant bearing the nam e B A. Accordingly, documentation said to have be en used by the appellant in the identity of FJR, TA-W and SK-W must, according to the res pondent, have been false. 5. The appellant’s response to the respondent was somewhat singular. He appeared to accept using the three names mentioned by the respondent, in addition to BA. He also said he “got in trouble” in the USA , was detained there and subsequently deported. 6. A later response, made on behalf of the appellant by his solicitors, sought to explain the ap pellant’s actions by reference to “ some spiritual experience which cleansed him of destructive and oppressive thoughts, causing the deletion of certain facts linked to the traumatic experiences of his life… He therefore pleaded with the Secretary of State to assist him in his self-help spiritual journey”. 7. Unsurp risingly, in February 2017 the r espondent wrote to the a ppellant to inform him that she had decided he had obtained British citizenship fraudulently and that he should be deprived of it. B. The appellant’s appeal 8. The a ppellant appealed under s ection 40A of the British Nationality Act 1981 (“The 1981 Act”) . His grounds of appeal contended that he had not obtained British citizenship fraudulently. He also submitted that the respondent had failed to carry out an assessment of the best interests of his three children, as required by section 55 of the Borders, Citizenship and Nationality Act 2009. 9. In handwritten representations to the respondent , the appellant said that he had provided “services to the UK government ” and that he “ was very young at the time of these misdeeds and just had a hard life… at the tim e of these identity problems I had no status in the UK and it was hard to live without documentation and all that led to me trying to find a way to live and survive in the UK . I am sorry I had to do things the wrong wa y. I am older now and a parent” . 10. The appellant’s appeal in the First-tier Tribunal was originally due to be heard on 19 June 2017. A week earlier, however, the appellant’s solicitors requested an adjournment. The case was said by them to be of a “sensitive nature which involves national security”. A key witness was a police officer , initial c ontact with whom had been made by the solicitors only on 9 June 2017. 11. The appeal was relisted for 7 August 2017. On 3 August, the solicitors requested a further adjournment. They said they remained in the same positio n as they had been on 12 June a nd that :- “ We have been unable to take the statement from the police officer and we are yet to have a conference with the Home Office which we were informed was due to the presenting officer dealing with the case being on leave. Unfortunately, these are [matters] that [need] to be dealt with, from the information received our client assisted the C rown and information that is classified has found its way in the decision from the respondent. We believe it is in the interests of justice, the C rown and our client as well as his minor children to have 3-4 months adjournment with a view to resolving this before it is dealt within the courts”. 12. At the hearing before the First-tier Tribunal judge on 7 August, Mr Siaw, a solicitor appearing for the appellant , re newed the adjournment application. He told the judge that the appellant “had worked as a police informant and had infiltrated drug gangs in America . The appellant had been told to obtain false identities by his handler”. 13. Faced with this, the judge requested the presenting officer to take instructions from a senior case worker. Having done so, the presenting officer objected to any further adjournment. 14. The judge refused to adjourn. He noted that almost two years had passed since the appellant had originally been notified that the respondent was considering depriving him of his British citizenship. The judge also noted that the appellant’s original responses were inconsistent with his later representations that he had been fully aware of his false identities but employed them in order to live in the United Kingdom. The judge was “not confident that there was a realistic prospect of the appellant obtaining any evidence from a police officer which would assist his case. Accordingly, I refuse d the application for an adjournment”. 15. Having been made aware of the judge’s decision to proceed , Mr S ia w said he had no submissions to make. H e expressed his view that the hearing should not go ahead, in the interests of justice. Everything the appellant had done “was because he was working for the Metropolitan Police”. C. The decision of the First-tier Tribunal judge 16. The First-tier Tribunal judge ’ s findings begin at paragraph 23 of his decision. In reaching them , the judge said he had had r egard “to the recent guidance given by the U pper T ribunal in P irzada (Deprivation of c itizenship: g eneral p rinciples ) [2017] UKUT 19 6 (IAC).” 17. The judge considered it manifest that the respondent had told the appellant she intended to deprive him of his citizenship pursuant to section 40(3) of the 1981 Act . This provides as follows :- “ (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 r egistration or naturalisation was obtained by means of – (a) fraud, (b) false representation, or (c) concealment of a material fact. ” 18. The judge then set out the following extract from the headnote of P irzada :- “ (3) The power under sub-s (3) arise s only if the Secretary of State is satisfied that registration or naturalisation was obtained by fraud, false representation or concealment of a material fact. The deception referred to must have motivated the grant of (in the present case) citi zenship, and therefore necessarily pr ece ded that grant”. 19. At paragraph 26, the judge noted that , in his written representations to the respondent , the appellant had accepted making false representations and using false identities to obtain passports and driving licences. The judge concluded that :- “I cannot look into any reasons why the appellant may have done so. Nor am I concerned with whether the appellant could be regarded as being of good character, if, as is claimed, he was acting at the time as a police informant”. 20. At paragraph 27, the judge noted that:- “ As clarified in Pirzada , I can only consider whether the Secretary of State had information from which he was satisfied that the appellant’s naturalisation was obtained by fraud, false representation or concealment of a material fact”. 21. The judge noted that it was not disputed the appellant had answered “no” to the question in the application form “ H ave you ever engaged in any other activities which might indicate that you may not be considered a person of good character?”. The judge was satisfied that , in answering that question in the negative, the appellant had committed a deception, involving the concealment of material facts. That concealment had been deliberate and related to the fact that over a long period of time, the appellant had “ used false identities and had obtained or attempted to obtain false passports or driving licences”. 22. At paragraph 29, t he judge said he was satisfied that the appellant’s deception in concealing his use of false identities had “ motivated the grant of his citizenship”. Plainly, the judge thought, the use of false identities to deceive government departments was “obviously something that might indicate [ the appellant ] m ay not be considered a person of good character ” . That was so, according to the judge, “irrespective of any motivation on the appellant’s part”. 23. The judge also noted the respondent’s guidance, which stated that the decision maker will “normally refuse an application where the person has attempted to deceive or otherwise been clearly dishonest in their dealings with another department of government”. 24. The judge, accordingly, concluded at paragraph 31 that the respondent had properly exercised her discretion under section 40(3) and that her decision was in accordance with the law. 25. So far the appellant’s other ground s of appeal w ere concerned, the judge said the following:- “32. In relation to the other grounds of appeal, whilst the effect of the decision is that the appellant has no leave to remain in the United Kingdom , no removal notice has been issued and therefore the appellant does not have to leave the United Kingdom at present. Accordingly, the decision to deprive the appellant of his citizenship does not amount to an interference with his private or family life and A rticle 8 E CHR is not engaged at this stage. ” D. The appellant’s grounds of challenge 26. The appellant applied for permission to appeal against the decision of the First-tier T ribunal judge. 27. Permission was granted by the First-tier Tribunal on all grounds . Th ese included the contention that the Tribunal had “ misunderstood the nature of its appella te jurisdiction and erred in law in failing to consider and determine material matters ” . In particular, the grounds alleged that the judge had fallen into error in paragraph 26, where he had said he could not look into any reasons why the appellant might had made f alse representations and used false identities and that the issue whether the appellant was a police informant was a matter with which the judge was not concerned. 28. In support of his grounds , the appellant made reference to the decision of the Upper Tribunal in Arusha and Demushi (deprivation of citizenship – delay [2012] UKUT 80(IAC) (“ Arusha ”) . The decision of the Upper Tr i bunal in P i rzada was said to be inconsistent with Arusha , which did not appear to have been discussed by the Upper Tribunal in Pi rzada. The grounds submitted that Arusha should be followed. 29. So far as paragraph 32 of the judge’s decision was concerned, the grounds argued that the finding that A rticle 8 was not in play in the appeal was contrary to the decision of the Upper Tribunal in Deliallisi (British Citizen: d eprivation appeal; S cope) . [2013] UKUT 439 (IAC), as confirmed in AB (British Citizenship: d eprivation ; Deliallisi considered ) ( Nigeria ) [2016] UK UT 451 (IAC). E . The Secretary of State’s position 30. At the beginning of the hearing on 21 November, Mr Clarke informed the Upper T ribunal that , following discussions within the Home Office , the respondent’s position was that, inso far as there is a conflict between the decisions in Arusha and Pirzada , the respondent consider s that P irzada should not be followed. 31. Mr Clarke further informed us that the respondent was now of the view that, as held by the T ribunal in Deliallisi and AB , an appellant in an appeal under section 40A o f the 1981 Act may raise A rticle 8 of the ECHR as a ground of appeal. 32. Accordingly, Mr Clarke conceded that the decision of the First-tier Tribunal judge in the present case was materially wrong in law and should be set aside. F . Discussion (a) The legislation 33. Section s 40 and 40A of the 1981 Act, so far as relevant , read as follows: “ 40. Deprivation of c itizenship (1) I n this section a reference to a person’s “citizenship status” is a reference to his status as- (a) a British citizen, ….. (2) The S ecretary 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 registration or naturalisation was obtained by means of – (a) fraud, (b) f alse representation, or (c) c oncealment of a material fact . … (5) B efore 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 reason s for the order, and (c) the person’s right of appeal under section 40 A(1) … … 40A. Deprivation of citizenship: appeal (1) A person who is given notice under section 40(5) of a decision to make an order in respect of him under section 40 may appeal against that decision to the First-tier Tribunal. …” (b) The scope of a deprivation appeal: Arusha , Deliallisi and Pirzada 34. The problematic findings in Pi rzada , which the respondent is satisfied are incorrect , occur i n the following passage in paragraph 9E of the decision :- “… T he grounds of appeal are… limited by the formulation of s 40 and must be directed to whether the Secretary of State’s decision was in fact empowered by that section. There is no suggestion that the Tribunal has the power to consider whether it is satisfied of any of the matters set out in sub-ss (2) or (3); nor is there any suggestion that the Tribunal can itself exercise the Secretary of State’s discretion”. 35. It woul d appear that the Tribunal in Pi rzada was not referred to the decision in Arusha or, for that matter, the decision in Deliallis i . 36. In Arusha , at paragraph 11 of its determination and reasons, the Upper Tribunal cited, with approval, what the First-tier Tribunal in that case had said about the nature and scope of an appeal under section 4 0A of the 1981 Act:- “ 13. In our judgment, the absence of prescribed grounds can only mean that the Tribunal is to have a wide ranging power to consider, by way of appeal, not a review, what the decision in the appellant’s case should have been. The Tribunal has to ask itself ‘ does the evidence in the case establish that citizenship was obtained by fraud? ’ If it does then it has to ask ‘ do the other circumstances of the case point to discretionary deprival? ’ 14. As this is an appeal not a review, the T ribunal will be concerned with the facts as it finds them and not with the Secretary of State’s view of them. In terms of the proof of fraud, the T ribunal will consider any evidence, whether or not available to the Secretary of State at the time he made his decision, which is relevant to the de termination of that question. ” 37. We consider it is necessary to set out in detail what the Upper Tribunal said in Deliallisi . Having set out paragraphs 13 and 14 of the First-tier Tribunal’s decision in Arusha , the T ribunal in Deliallisi explained in some detail why the First-tier Tribunal in Arusha was essentially correct in its conclusion regarding the scope of the appeal:- “ 30. It is apparent from [13] of the First-tier Tribunal’s determination, that that Tribunal held, in effect, that the section 40A appeal is a full merits-based appeal, involving an appellate re-examination of the discretionary decision under section 40 to deprive a person of British citizenship. Although the determination of the First-tier Tribunal in Arusha & Demushi was mentioned by the First-tier Tribunal in the case of the present appeal, this important finding went unnoticed. As a result, the First-tier Tribunal came to the conclusion that, because section 40A, unlike section 86 of the 2002 Act, contains no provision allowing or permitting an appeal to succeed if discretion should have been exercised differently, the Tribunal was required to construe section 40A as excluding such a possibility. 31. The correct approach is, we find, precisely the opposite of that taken by the First-tier Tribunal in the present appeal. If the legislature confers a right of appeal against a decision, then, in the absence of express wording limiting the nature of that appeal, it should be treated as requiring the appellate body to exercise afresh any judgement or discretion employed in reaching the decision against which the appeal is brought. We acknowledge that, in certain circumstances, the subject matter or legislative context may, nevertheless, compel a restricted reading of the enactment conferring the right of appeal; but courts and tribunals should not be over-ready to find such exceptions, and should do so only where it is plainly demanded, in the interests of coherent decision-making or other cogent considerations of public policy. 32. In this regard, the following passage from Jacobs, Tribunal Practice and Procedure (2 nd Edition) is helpful:- “4.116 If the appeal is against a decision based on an exercise of judgment, the question arises whether the tribunal is limited to deciding if the judgment was exercised wrongly or is allowed or required to exercise the judgment afresh. 4.117 The approach to identifying the scope of the appeal in these cases was set out by Etherton J in Banbury Visionplus Ltd v Revenue and Customs Commissioners [[2006] STC 1568]. The position is this. The scope of the appeal may be made clear in the language of the statute that allows the appeal. In the absence of express provision, any limitation on the scope of the appeal must be apparent from the nature of the decision or the legislative context, [[2006] STC 1568 at [44]]. 4.118 The general approach of the courts has been that the judgment must be exercised afresh on appeal [As in Secretary of State for Children, Schools and Families v Philliskirk [2009], ELR 68 at [19]]. Otherwise, the right of appeal would be rendered illusory [Lord Goddard CJ in Stepney Borough Council v Joffe [1949] 1 KB 599 at 602] or unduly restricted [Lord Parker CJ in Godfrey v Bournemouth Corporation [1969] 1 WLR 47 at 51]. 4.119 However, there are cases in which this approach has not been taken. John Dee Ltd v Customs and Excise Commissioners [[1995] STC 941, as explained in Banbury Visionplus Ltd v Revenue and Customs Commissioners [2006] STC 1568 at [39]-[44]] is an example. There it was permissible to require security ‘Where it appears to the Commissioners requisite to do so for the protection of the revenue’. Statute provided for a general appeal ‘with respect to… the requirement of security’. Neill LJ explained the Court of Appeal’s decision: ‘It seems to me that the ‘statutory condition’… which the Tribunal has to determine in an appeal… is whether it appeared to the C ommissioners requisite to require security. In examining whether that statutory condition is satisfied the tribunal will… consider whether the commissioners had acted in a way in which no reasonable panel of Commissioners could have acted or whether they had taken into account some irrelevant matter or had disregarded something to which they should have given weight. The tribunal may also have to consider whether the commissioners have erred on a point of law [[1995] STC 941 at 952]’. One factor that influenced the decision in this case was that the tribunal was under no duty to protect the revenue; that statutory responsibility was imposed on the Commissioners [[1995] STC 941 at 952]. It is not clear to what extent that factor affected the outcome. 4.120 A fresh exercise of the judgment is also excluded if, exceptionally, a right of appeal is given against a decision that involves a discretion which is non-justiciable. This may be because the discretion involves a consideration of a number of unrelated factors with no indication, in the legislation or the context, of which were relevant. Or it may be because the discretion involves non-legal judgments on considerations of policy, finance or social matters. In these limited circumstances, the right of appeal does not allow a tribunal to substitute its exercise of discretion for that of the decision-maker. It is limited to challenges to the legality of the decision on judicial review grounds. [See the decision of the Tribunal of Commissioners in R(H) 6/06 (especially at [24] and [39]) analysing the decision of an earlier Tribunal of Commissioners in R(H) 3/04 ]. 4.121 If discretion (or any other judgment) has to be exercised afresh on appeal, the way in which it was exercised below is not binding, but must be taken into account for whatever it is worth. As Lord Atkin explained in Evans v Bartlam : [[1937] AC 473] 33. In the case of section 40 of the 1981 Act, it cannot possibly be said that the discretionary decision to deprive a person of British citizenship involves a discretion which is non-justiciable. The decision clearly involves important considerations of public policy; but so too do very many of the discretionary decisions of the respondent taken under the immigration rules, as against which a “full” right of appeal exists, by reason of sections 84(1)(f) and 86(3)(b) of the 2002 Act. The Immigration and Asylum Chamber of the First-tier Tribunal routinely has to balance public policy considerations against individual rights and other interests, in reaching decisions in such appeals; and in doing so it will have regard to the importance attached by the respondent to public policy interests, in a particular case. 34. Accordingly, unlike the First-tier Tribunal, we do not regard the absence in section 40A of the 1981 Act of the relevant wording found in sections 84 and 86 of the 2002 Act as limiting the scope of section 40A. There is, in our view, no ambiguity, obscurity or absurdity in the wording of that section, such as might call for the application of