Case No. UKUT-00085-(IAC)

(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 .