Upper Tribunal Immigration and Asylum Chamber

[2024] UKUT 00144 (IAC)

Fecha: 08-Ago-2023

Good character in the context of deprivation: section 40(3) BNA 1981

Good character in the context of deprivation: section 40(3) BNA 1981

31.

The Secretary of State has power to deprive a person of citizenship status under sections 40(2) (conducive to the public good) and 40(3) BNA 1981 (fraud, false representation, or concealment of a material fact). For the purpose of this appeal, the relevant power is contained in section 40(3), which states:

(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 registration or naturalisation was obtained by means of—

(a)

fraud,

(b)

false representation, or

(c)

concealment of a material fact.

32.

The test contained in section 40(3) contains three elements:

(i)

Whether the ‘Secretary of State is satisfied that’ the relevant condition precedent is met;

(ii)

that registration or naturalisation was ‘obtained by means of’;

(iii)

one or more of the three means i.e. fraud, false representation, or concealment of a material fact.

33.

In many cases there might not be any material difference between the three means of obtaining registration or naturalisation in order to justify deprivation. However, it is not a requirement for an applicant to have obtained registration or naturalisation by means of an active fraud or false representation in the application for naturalisation itself. For example, using another person’s documents to obtain citizenship status. It is sufficient for an applicant to have dishonestly concealed material facts that they know or should have known might be relevant to a proper assessment of the application. For example, concealment of criminal convictions, acts that might amount to international crimes, or other forms of dishonesty that might cast doubt on whether the applicant is a person of good character.

34.

For many years, the policy guidance relating to deprivation has been ‘Chapter 55: Deprivation and Nullity of British citizenship’. This guidance was superseded on 10 May 2023 by up to date guidance entitled ‘Deprivation of British Citizenship’. However, at the date the decision was made in this case the relevant guidance was still Chapter 55. The relevant sections for the purpose of this appeal are:

‘55.4 Definitions

55.4.1

“False representation” means a representation which was dishonestly made on the applicant’s part i.e. an innocent mistake would not give rise to a power to order deprivation under this provision.

55.4.2

“Concealment of any material fact” means operative concealment i.e. the concealment practised by the applicant must have had a direct bearing on the decision to register or, as the case may be, to issue a certificate of naturalisation.

55.4.3

“Fraud” encompasses either of the above.

…..

55.7

Material to the Acquisition of Citizenship

55.7.1

If the relevant facts, had they been known at the time the application for citizenship was considered, would have affected the decision to grant citizenship via naturalisation or registration the caseworker should consider deprivation.

55.7.2

This will include but is not limited to:

•

Undisclosed convictions or other information which would have affected a person’s ability to meet the good character requirement

•

A marriage/civil partnership which is found to be invalid or void, and so would have affected a person’s ability to meet the requirements for section 6(2)

•

False details given in relation to an immigration or asylum application, which led to that status being given to a person who would not otherwise have qualified, and so would have affected a person’s ability to meet the residence and/or good character requirements for naturalisation or registration

55.7.3

If the fraud, false representation or concealment of material fact did not have a direct bearing on the grant of citizenship, it will not be appropriate to pursue deprivation action.

55.7.4

For example, where a person acquires ILR under a concession (e.g. the family ILR concession) the fact that we could show the person had previously lied about their asylum claim may be irrelevant. Similarly, a person may use a different name if they wish… : unless it conceals criminality, or other information relevant to an assessment of their good character, or immigration historyin another identity it (sic) is not material to the acquisition of ILR or citizenship. However, before making a decision not to deprive,the caseworker should ensure that relevant character checks are undertaken in relation to the subject’s true identity to ensure that the false information provided to the Home Office was not used to conceal criminality or other information relevant to an assessment of their character.’ [our emphasis]

35.

We note that the definition section makes clear that there needs to be an operative concealment of a material fact that has a direct bearing on an application to register or to naturalise. Good character is a statutory requirement that must be considered in all cases before the Secretary of State can exercise discretion to register or to naturalise a person as a British citizen. It is clear from the application form that any matter that is potentially relevant to the assessment of good character should be disclosed. It is open to the Secretary of State to consider deprivation of citizenship status if a person commits fraud, makes a false representation, or dishonestly conceals a material fact in the original application knowing that it might be relevant to the assessment of good character. Although paragraph 55.7.4 suggests that a previous application made in another identity might not always be material to the acquisition of ILR or citizenship, it is clear that the Secretary of State retains overall discretion to decide whether a person’s conduct affects the assessment of good character for the purpose of naturalisation.