[2024] UKUT 00144 (IAC)

For the sake of continuity, we will refer to the parties as they were before the First-tier Tribunal although technically the Secretary of State is the appellant in the appeal before the Upper Tribunal.

The original appellant entered the UK illegally on 28 November 1999 and claimed asylum. He claimed to be Betim Jonuzi, born on 22 February 1976, from Kosovo. In fact, he is Betim Onuzi, born on 23 February 1976, and he is from Albania. The appellant put forward a false asylum application claiming to be at risk of persecution from the Yugoslav authorities in Kosovo as an ethnic Albanian.

The respondent refused the asylum claim in a decision dated 16 August 2000. The exact course of the subsequent events is somewhat unclear from the partial evidence contained in the Home Office bundle and a separate copy of the respondent’s notes from the GCID system. A letter from the Home Office dated 13 February 2001, to an unknown recipient (addressed to ‘Dear Sir or Madam), indicated that the appellant was informed by social services in September 2000 that he had been granted Exceptional Leave to Remain (ELR) until 18 August 2004. The Home Office clarified that this incorrect record was transmitted to social services in error. Notes from the respondent’s GCID system indicate that there was no evidence of a grant of ELR on the file. Although a field in the GCID system was checked to show that he had been refused asylum and granted ELR, there appears to be no other evidence to show that the appellant was ever notified of a decision to grant ELR by the Home Office (the relevant authority with power to make the decision) or was issued with papers actually granting him ELR.

The assertion that this was likely to be an administrative error is consistent with the respondent’s policy at the time, which was on the cusp of change when the appellant arrived in the UK. During the conflict in Kosovo, the respondent recognised Kosovar Albanians as refugees or granted them temporary protection. The policy changed following the ceasefire in Kosovo on 10 June 1999. The respondent continued to grant ELR to Kosovans who claimed asylum before 24 March 1999. By 13 September 1999 the respondent returned to the usual policy of considering claims on their merits: see summary in R (Matusha) v SSHD (revocation of ILR policy) [2021] UKUT 175 at [7]. In light of this, it seems likely that the respondent was correct to state in the letter dated 13 February 2001 that the appellant was informed that he had been granted ELR in error. He claimed asylum after the change in policy.

What happened next is even less clear. A GCID note dated 10 March 2006, prepared while considering an application made by the appellant for leave to remain, summarised events in 2001 as follows:

The respondent’s bundle contains a ‘Decision on a Preliminary Issue’ dated 24 May 2001 made by an adjudicator. The decision states:

It is unclear on what basis this case came before the special adjudicator. At the time, the only right of appeal that the appellant was likely to have was against the decision to refuse asylum dated 16 August 2000. At that date, the appeal is likely to have been brought under section 8 of the Asylum and Immigration Appeals Act 1993. The available grounds were that removal in consequence of the refusal of leave to enter, variation of leave, or refusal to vary leave, would be contrary to the United Kingdom’s obligations under the Refugee Convention. The adjudicator did not explain why he considered that he had jurisdiction to make a preliminary decision regarding an erroneous statement made to the appellant by social services, but not by the respondent, about a grant of ELR (a matter than did not engage the Refugee Convention). Nor did he explain what his decision was.

The GCID note dated 10 March 2006 went on to say:

There is no evidence to show that any appeal was determined by the tribunal and there is only vague evidence to suggest that the underlying decision to refuse asylum giving rise to a right of appeal might have been withdrawn. In the absence of any evidence from the appellant to show that he was issued with a document granting ELR, the evidence contained in the GCID notes indicates that, save for checking a field on the GCID system, no formal decision seems to have been made to grant ELR. The respondent did not notify the appellant of a decision to grant ELR (only social services). Nor were any papers ever prepared or served on the appellant. Despite this, the appellant made an application for further leave to remain in July 2004, repeating the false name and nationality given in the original asylum claim. It is in this context that the respondent was considering the case in respect of the notes made in March 2006 quoted above. By the time the respondent came to consider the application the situation seems to have become so unclear that the following decision was noted on 10 March 2006:

The appellant was granted ILR in a letter dated 17 May 2006. He applied to naturalise as a British citizen on 25 April 2007, again, in the false identity put forward in his original asylum claim. Section 3 of the application form was entitled ‘Good Character Requirement’. At the top of the section it stated that ‘you need to give information which will help the Home Secretary to decide whether he can be satisfied that you are of good character.’ A series of specific questions were asked about criminal convictions and activities relating to international crimes. At paragraph 3.11 of the application form the appellant was asked: ‘Have you engaged in any other activities which might be relevant to the question of whether you are a person of good character?’ to which he ticked the box stating ‘no’.

Section 6 of the form required the appellant to make a series of formal declarations. The section began by giving a warning that knowingly giving false information in the form is a criminal offence. At paragraph 6.1 the appellant was asked to confirm that the information given in the application was correct. At paragraph 6.5 he confirmed that he understood that a certificate of citizenship may be withdrawn if it is found to have been obtained by fraud, false representation or the concealment of any material fact. At 6.6 the appellant was given an opportunity to make representations as to why discretion should be exercised if he did not meet all the statutory requirements. He did not complete that section.

The application form made clear that the appellant should read the accompanying guidance before completing the form. A copy of guidance that slightly postdated the application is contained in the Home Office bundle. It was entitled ‘Naturalisation as a British citizen: A guide for applicants’ (September 2007). It is reasonable to infer that similar guidance was likely to be in place when the appellant made the application in April 2007, only a few months before. If an applicant was in any doubt about how to complete sections 3.8-3.11 of the form relating to good character the guidance said the following [pg.21]:

From the initial picture, which was somewhat confused, the following central facts appear to emerge. The appellant made a false asylum claim, which was refused. It is likely that he did not qualify for ELR, nor was ever formally notified or granted ELR by the respondent. Nevertheless, the respondent chose to exercise discretion to grant him ILR in 2006. At all times the appellant continued to conceal the fact that he had used a false identity and had made a false asylum claim. He perpetuated the false representation that he was a Kosovar Albanian. At all times up to and including the application for naturalisation the respondent was unaware of these material facts.

Following investigations conducted in 2020, the respondent discovered that the appellant was a national of Albania and was not from Kosovo as claimed. When invited to make representations, the appellant admitted that he had lied about his real identity because he did not want to be returned to Albania. In a statement, the appellant expressed remorse for what he had done and asked for discretion to be exercised not to deprive him of citizenship status because he had lived in the UK for over 20 years and had a wife and three British children here.

In a decision dated 04 November 2020 the respondent decided to deprive the appellant of citizenship status with reference to section 40(3) BNA 1981. But for the dishonest concealment of material facts, the respondent’s decision to exercise discretion in 2006 would have been different. But for the dishonest concealment of material facts, the respondent’s decision relating to the good character requirement for naturalisation would have been different.

The appellant exercised his right of appeal. First-tier Tribunal Judge S. Taylor (‘the judge’) allowed the appeal in a decision sent on 15 July 2022. The judge referred to the guidance given in Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238 (IAC). He accepted that the appellant had made false representations about his asylum claim and found that this was one of the grounds upon which the respondent could deprive the appellant of citizenship status [9].

The judge went on to say that ‘a further test in an appeal of this nature is materiality’. He considered the decision in Sleiman (deprivation of citizenship; conduct) [2017] UKUT 00367 (IAC). He also noted what was said in what he described as the ‘Nationality Guidance’, but in fact appears to be a reference to the guidance ‘Chapter 55: Deprivation and Nullity of British Citizenship’. He noted that paragraph 55.7.1 stated that if the relevant facts had been known at the time the application for citizenship was considered, and would have affected the decision, the caseworker should consider deprivation. The judge also noted that paragraph 55.7.3 stated that if the fraud, false representation or concealment of a material fact did not have a direct bearing on the grant of citizenship, it will not be appropriate to take deprivation action. The judge stated that: ‘paragraph 55.7.4 provides that where a person acquires ILR under a concession, the fact that the respondent can demonstrate that he had previously lied in an asylum claim may be irrelevant.’ [10].

The judge outlined what he considered to be ‘the key evidence of causation’, which was the GSID note dated 10 March 2006 (see [9] above). The judge went on to make the following findings:

In the alternative, the judge went on to consider whether the decision to deprive the appellant of citizenship status would breach his right to private and family life under Article 8 of the European Convention. He noted that the appellant had not prepared a witness statement and did not give evidence. We note that the records indicate that the only documents filed and served by the appellant for the First-tier Tribunal appear to be a skeleton argument and a copy of the disclosure of the GCID records. The only evidence considered by the judge appears to have been the original statement sent to the Home Office in which the appellant made a bare statement that he had lived in the UK for over 20 years and had a wife and three British children. He went on to find:

The Secretary of State applied for permission to appeal to the Upper Tribunal on the following grounds:

We have considered the First-tier Tribunal decision, the evidence that was before the First-tier Tribunal, the grounds of appeal, and the submissions made at the hearing, before coming to a decision in this appeal. It is not necessary to summarise the oral submissions because they are a matter of record, but we will refer to any relevant arguments in our findings.