Upper Tribunal Immigration and Asylum Chamber

[2025] UKUT 00349 (IAC)

Fecha: 22-Abr-2025

The available grounds of appeal

42.

The grounds of appeal and standard of review are nowhere specified in statute but have been defined and redefined over time by decisions of the Supreme Court, the Court of Appeal and the Upper Tribunal. In Begum, R. (on the application of) v Special Immigration Appeals Commission & Anor [2021] UKSC 7 at [71], Lord Reed set out the questions that should be considered in an appeal against a decision to deprive a person of their British citizenship status under Section 40(2) of the BNA 1981, on the grounds that this is conducive to the public good:

(i)

Did the respondent act in a way in which no reasonable Secretary of State could have acted, including by

(a)

taking into account an irrelevant matter;

(b)

disregarding something to which she should have given weight, such as the serious nature of a deprivation of citizenship and the severity of the consequences that can flow from it; or

(c)

being guilty of “some procedural impropriety”.

(ii)

Did the respondent err in law, including by making findings of fact which are unsupported by any evidence or based upon a view of the evidence that could not reasonably be held;

(iii)

Has the respondent complied with the requirements of the statute regarding the prevention of statelessness (which do not apply in deprivations under section 40(3)); and

(iv)

Has the respondent breached “any other legal principles applicable to [the] decision, such as the obligation arising in appropriate cases under section 6 of the Human Rights Act” 1998.

43.

In the past four years, courts and tribunals have interpreted and applied Begum in appeals against deprivation decisions made under both section 40(2) and 40(3) of the BNA 1981. The current position is set out in the January 2025 judgments of the Court of Appeal in Chaudhry, Daci and Kolicaj.

44.

In an appeal against a decision made under section 40(3):

(i)

It is for the FTT to find as a fact whether there was fraud, false representation or concealment of a material fact. This is because making such findings is within the FTT’s institutional competence and because further material adduced and tested before the FTT might show that the respondent’s initial finding, although reasonable on the basis of the evidence available at the time, was wrong. The standard of proof is the balance of the probabilities and the burden lies on the respondent. Chaudhry at [46]-[49]; and

(ii)

The respondent’s decision that registration or naturalisation was obtained by means of fraud is subject to review on public law grounds. This, too, reflects the relative institutional competence of the respondent and the FTT . As Lord Justice Dingemans explained in Chaudhry at [50]:

“This is because the decision on causation is a matter critically dependent on the Secretary of State’s previous decision making about which the Secretary of State is in a better position than the FTT to make the primary evaluation.”

45.

In an appeal against a decision taken under either section 40(2) or 40(3):

(i)

The respondent’s exercise of the discretion conferred by the phrase “the Secretary of State may by order deprive a person” is subject to review on public law grounds. This is because the statute identifies the discretion as being exercised by the respondent and “because the grounds of appeal in section 40A of the BNA 1981 do not put the FTT into the shoes of the Secretary of State to exercise the discretion for itself.” Chaudhry at [51]. Section 40A does not specify any grounds of appeal at all, as acknowledged in Chaudhry at [45], and a court or tribunal has no power to exercise for itself a discretion conferred on a public authority unless that power is expressly conferred by statute (as was the case under section 84 of the Nationality, Immigration and Asylum Act 2002 (“the NIAA 2002”), until it was amended by the Immigration Act 2014). See: Begum at [66]-[68].

(ii)

It is for the FTT decide for itself whether the decision is inconsistent with the UK’s obligations under the ECHR. Chaudhry at [52].

46.

In an appeal against the deprivation of citizenship, a court or tribunal is in part reviewing the respondent’s decision on public law grounds. However, it remains an appeal, not a judicial review. One important way in which it is different from a normal judicial review is that the respondent may review her decision during the course of the proceedings. In U3 (Appellant) v Secretary of State for the Home Department (Respondent) [2025] UKSC 19 [20], Lord Reed noted that in SIAC section 40(3) appeals, the respondent keeps her national security assessment under review throughout the proceedings, and that this allows the appeal to be a “one-stop” procedure. He further observed that “[w]here what is at stake is citizenship, it would be undesirable to proceed in a piecemeal fashion, with the decision being quashed and remitted potentially more than once”. In the very different procedural context of an FTT appeal, the respondent may have conducted a Respondent’s Review of her decision in accordance with relevant Presidential Practice Statements. Subject to any concerns about procedural fairness in a particular case, the FTT should also take these reviews into account for the same reason.