[2024] UKUT 00144 (IAC)

In light of the arguments put forward by the respondent in this appeal, we consider that the principles outlined in Sleiman (deprivation of citizenship; conduct) [2017] UKUT 00367 (IAC) might need to be reviewed. The decision needs to be placed in the full context of the statutory scheme and relevant case law.

The facts in Sleiman were specific to the case. Mr Sleiman was a national of Lebanon who claimed asylum. He gave his correct name and nationality, but lied about his age. He claimed to be a child when he was not. Based on this false representation he was granted limited leave to remain as an unaccompanied asylum seeking child, to which he was not entitled. Mr Sleiman applied for further leave to remain using the same false date of birth, but there was a delay of five years before the Secretary of State decided the application. It is said that he was eventually granted ILR under the Legacy Programme and went on to be naturalised as a British citizen in 2010. The respondent did not discover the deception until 2013 and went on to make a decision to deprive him of citizenship status on the ground that he obtained naturalisation by means of fraud, false representation, or concealment of a material fact.

Having reviewed the evidence, the Upper Tribunal concluded that it was not open to the First-tier Tribunal to find that the false representation or concealment of a material fact was ‘directly material’ to the decision to naturalise Mr Sleiman as a British citizen. The Upper Tribunal considered the statutory scheme relating to deprivation of citizenship, the policy guidance relating to deprivation, and case law that was relevant at the time. However, it seems that no arguments were put forward by the respondent relating to the statutory requirement to be of good character when Mr Sleiman made his application for naturalisation. At [62] the Upper Tribunal hinted at a possible counter argument when it said: ‘whilst his age was irrelevant to the grant of ILR under the Legacy scheme that does not mean to say that the deception as to age was similarly irrelevant. Indeed, the decision letter states that the deception was directly material to the decision to grant .. “DL, ILR LOTR”.’ The Upper Tribunal noted that the argument was not developed by the respondent [63]. No reference was made to the statutory scheme relating to granting citizenship status or the requirement to be of good character at any point in the decision.

The Upper Tribunal concluded that, although Mr Sleiman obtained leave to remain by means of a false representation, it was unclear whether he would have been removed to Lebanon even if the fraud had become known earlier. The Upper Tribunal also noted that many people were granted leave to remain under the Legacy Programme, which no doubt included ‘many whose asylum claims were false’ [63]. However, the Upper Tribunal did not have the benefit of argument on this point. No detailed consideration was given to relevant cases, which outlined the nature of the Legacy Programme. The Upper Tribunal in Matusha (see [4] above), conducted a detailed review of the programme and relevant cases such as Hakemi & Others v SSHD [2012] EWHC 1967 (Admin) and Geraldo & Others v SSHD [2013] EWHC 2763 (Admin), which made clear that a person’s character and conduct still formed part of an evaluative assessment under the Legacy Programme [11]-[27].

Indeed, we observe that the Secretary of State usually has discretion to consider character and conduct in any immigration application. Many of the immigration rules now include ‘Suitability’ requirements. For a long time there have been provisions in the immigration rules for the Secretary of State to refuse applications under the general ‘grounds for refusal’ if she considers it appropriate. Applications to naturalise as a British citizen are governed by the statutory scheme, where the Secretary of State needs to be satisfied that the person is of good character before exercising discretion to issue a certificate of naturalisation.

The decision in Sleiman pointed out that there needs to be a ‘causative link’ between the fraud, false representations, or dishonest concealment of a material fact and the grant of citizenship [53]. It also emphasised the phrase used in the Chapter 55 guidance i.e. for the conduct to have a ‘direct bearing’ on the grant of citizenship [60].

It was open to the Upper Tribunal in Sleiman to make those findings on the partial arguments presented at the time. However, they have often been misunderstood. Arguments are sometimes put forward, as in this case, to suggest that there is a chain of causation leading to naturalisation that might have been broken by an earlier grant of leave or that earlier leave was granted on a basis that was unaffected by the deception. It is sometimes also argued, as in this case, that paragraph 55.7.4 of Chapter 55 suggests that a previous exercise of discretion to grant leave means that any previous deception might not be material to an application for ILR or for naturalisation. However, such arguments often fail to consider the statutory scheme in its full context.

The Court of Appeal in Shyti v SSHD [2023] EWCA Civ 770 recently considered similar arguments in another deprivation case. In that case, the appellant had made a false asylum claim, but argued that a grant of leave to remain under the Legacy Programme had broken a chain of causation despite his failure to disclose the fraud at any point up to and including the application for naturalisation. The court noted the process for applying for citizenship, which required an applicant to disclose information that might be relevant to the assessment of good character [11]-[16]. The court went on to summarise the legal framework relating to decisions to grant citizenship status [65]-[70]. Before the Upper Tribunal the Secretary of State argued that the submissions made in Sleiman were limited in scope and sought to distinguish the case [46]. The Court of Appeal concluded that it was open to the Upper Tribunal to find that Sleiman was not decisive and could be distinguished [78][87].

The decision in Shyti provides further support for our conclusion that the effect of Sleiman is limited in nature. The finding that the negative behaviour must have a ‘direct bearing’ on the grant of citizenship must be read in the context of the full statutory scheme, including the statutory requirement to be of ‘good character’ before citizenship status will be granted.