[2025] UKUT 00230 (IAC)

It will be apparent that this case is concerned with the nature of the jurisdiction of the First-tier Tribunal in relation to appeals under section 40A of the British Nationality Act 1981. Section 40 of the 1981 Act provides as follows:

“Deprivation of citizenship

(1)

In this section a reference to a person's “citizenship status” is a reference to his status as—

(a)

a British citizen,

…

(2)

The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.

(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.

(4)

The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.

(4A) But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if—

(a)

the citizenship status results from the person's naturalisation,

(b)

the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and

(c)

the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.

(5)

Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying—

(a)

that the Secretary of State has decided to make an order,

(b)

the reasons for the order, and

(c)

the person's right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997.”

This case is concerned with a decision notified under section 40(5), pertaining to the exercise of the Secretary of State’s power under section 40(3). Despite the evident similarity of the statutory language between section 40(2) and section 40(3) of the 1981 Act, as well as the common entitlement to an appeal under either of those subsections provided by section 40A, it is important to observe that this appeal is solely in connection with a decision under section 40(3) of the 1981 Act and does not touch upon considerations related to appeals against decisions made under section 40(2). This distinction arises on the recent consideration of these issues by the Court of Appeal in Chaudhry. The history of the evolution of this issue is helpfully set out in Dingemans LJ’s judgment in the Court of Appeal at paragraph 3 and paragraphs 24 to 33 such that it is unnecessary for us to set out the detail of the current position as to the appropriate approach to an appeal against a decision made under section 40 of the 1981 Act. The key issue is the adjustment of the approach to this type of appeal which was introduced by the Court of Appeal in their decision in Chaudhry. This followed a concession made by the respondent that the approach previously set out in Ciceri (Deprivation of Citizenship Appeals: Principles) v Secretary of State for the Home Department [2021] UKUT 238 (IAC); [2021] Imm AR 1909 and Chimi, and accepted by the Upper Tribunal as being accurate following the judgment of the Supreme Court in Begum (No1), was no longer considered by the Secretary of State to be appropriate. It was conceded by the Secretary of State that a different approach to appeals against decisions made pursuant to section 40(3) of the 1981 Act needed to be adopted as set out below.

The principal adjustment to the approach set out in the cases of Ciceri and Chimi relates to what the Court of Appeal described as the first part of the test in respect of an appeal against a decision made under section 40(3) of the 1981 Act (whilst paragraph 37 of the Court of Appeal’s judgment refers to section 40(2) of the 1981 Act this must be a reference to section 40(3)). This first part of the test relates to whether, as a question of fact, there had been fraud, false representation or concealment of a material fact by the appellant at the time of the original decision to grant citizenship. The approach adopted by the Upper Tribunal in the cases of Ciceri and Chimi, following the decision of the Supreme Court in Begum (No1) and its criticism of the earlier Upper Tribunal case of Deliassisi (British Citizen: Deprivation Appeal: Scope) [2013] UKUT 00439 (IAC) (itself a case related to a decision under section 40(3) of the 1981 Act), was that the question in an appeal in relation to this first part of the test was whether or not there was an error of public law in the decision of the respondent that there had been fraud, false representations or concealment of a material fact.

The Court of Appeal in Chaudhry accepted the submissions of the parties that on an appeal under section 40(3) of the 1981 Act it was for the FtTIAC judge to find as a fact whether there was a fraud, false representation or concealment of a material fact and to determine that first stage of the test on the merits and afresh based on the evidence presented to the Tribunal. At paragraph 42, the Court of Appeal concluded that, notwithstanding the concession, it was not bound by the agreement of the parties as to the correct approach to an appeal under section 40(3) of the 1981 Act but needed to make up its own mind on this issue. The Court of Appeal’s reasoning for accepting the concession and concluding that it was for the First-tier Tribunal judge to find as a fact whether or not there had been fraud, false representation or concealment of a material fact for the purposes of section 40(3) of the 1982 Act is set out in paragraphs 46 to 49 of the leading judgment of Dingemans LJ as follows:

“46.

In my judgment, on the first part of the test, it is for the FTT to find, in the event of a dispute, as a fact whether there was fraud, false representation or concealment of a material fact for the purposes of section 40(3) of the BNA 1981. This is for a number of reasons. First, it is apparent that the existence of the fraud, false representation or concealment of a material fact is, under section 40(3), the statutory precondition for the Secretary of State making the order. The FTT has, as the parties both accepted, institutional competence to make a fair determination of whether there was fraud, false representation or concealment of a material fact.

47.

Secondly, it is apparent that the Secretary of State might make reasonable judgments on the materials available at the time of the decision, which are later shown to be wrong by further evidence adduced and tested before the FTT. It would be a very unusual type of appeal where the FTT had to accept a judgment on a matter of precedent fact, which was reasonably made but was in fact wrong. If that were the right analysis appellants would then be driven to attempt to show, when relying on article 8 of the ECHR and section 6 of the Human Rights Act, that the decision about fraud was as a matter of fact wrong, meaning that the decision to deprive a person of citizenship status was more likely to be an infringement of rights protected by article 8 of the ECHR. This would not be a sensible interpretation of the rights of appeal.

48.

Thirdly there is nothing in the judgment of the Supreme Court in Begum (No.1) which prevents such a conclusion. Begum (No.1) was concerned with section 40(2) of the BNA 1981 and the statements about the appropriate test cannot be read over to section 40(3) without appropriate qualification.

49.

I should record that there was some discussion about the burden of proving the statutory preconditions. It is unlikely that much will turn on who has the burden of proof, but I would accept that it is for the Secretary of State, who is asserting that there was fraud, false representation or concealment of a material fact, to prove that on the balance of probabilities.”

This reasoning represents a departure from the previous understanding of the effect of the decision of the Supreme Court in Begum (No1) set out in Ciceri and Chimi. The important change necessary to give effect to the judgment of the Court of Appeal in Chaudhry is that in an appeal in relation to a decision made under section 40(3) of the 1981 Act the First-tier Tribunal will no longer be examining the question of whether there had been fraud or false representation or concealment of a material fact by considering if there was any public law error in that aspect of the Secretary of State’s decision. It is therefore for the First-tier Tribunal to make an independent finding, on the evidence before the Tribunal, which may be different to the evidence that was before the Secretary of State, as to whether there was fraud, false representation or concealment of a material fact. This is a question, as the Court of Appeal held, of precedent fact for the First-tier Tribunal to determine.

As Dingemans LJ observed, the First-tier Tribunal clearly has institutional competence to fairly determine questions of this kind and does so regularly in other contexts. The correct approach to be taken in cases in which dishonesty is alleged is well established and was set out by Green LJ in Ullah v SSHD [2024] EWCA Civ 201, [2024] 1 WLR 4055 at paragraph 22 as follows:

“The legal burden of proving that the appellant acted dishonestly lies upon the SSHD. There is a three-stage process: (i) the SSHD first must adduce prima facie evidence of deception (the first stage); (ii) the appellant then has a burden of raising an innocent explanation which satisfies the minimum level of plausibility (the second stage); and (iii) if that burden is discharged, the SSHD must establish on a balance of probabilities that this explanation is to be rejected (the third stage)…”

In the case of Chowdhury v SSHD [2025] EWCA Civ 36, Singh LJ recently emphasised that the legal burden of proof in relation to the issue of dishonesty is at all times on the Secretary of State and does not at any point shift to the appellant when assessing the three stages set out in Ullah. If the First-tier Tribunal is satisfied, having applied the three stage test, that there has been fraud, false representation or concealment of a material fact then the second question to be addressed is whether the decision to grant the appellant British citizenship was obtained by the fraud, false representation or concealment of a material fact which has been established. In connection with this second question, characterised as the causation question, Dingemans LJ observed as follows:

“50.

As to the second part of the test, I accept the submissions of the Secretary of State that the causation issue, namely whether the registration of naturalisation was obtained by the impermissible means, is a decision of the Secretary of State to be reviewed on appeal by the FTT on public law grounds, in accordance with the principles referred to by Lord Reed in paragraph 71 of Begum (No1). 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. Mr Malik’s contrary submissions on this second part of the test were very much informed by the suggested difficulties for the FTT in applying the test. I do not consider that to be an answer. This is because this court must attempt to interpret and apply the provisions of section 40(3) and 40A. In any event it is unlikely that there will be many appeals which will be determined on the causation issue.”

Applying this approach, once the First-tier Judge has concluded that fraud, false representation or concealment of material fact has been proved as a question of precedent fact, the question of whether that established precedent fact caused the Secretary of State to decide to grant the appellant’s application for citizenship will need to be reviewed applying public law principles. It is not open to the First-tier Judge to determine the causation question afresh. We agree that it is unlikely that there will be many appeals that turn on the causation question, but where they do they are likely to be concerned with questions such as the interpretation of relevant policy at the time of the decision.

If the First-tier judge decides the causation question in the Secretary of State’s favour, the next question is whether the Secretary of State was correct to decide to make the order depriving the appellant of citizenship as an exercise of her discretion. This third question is the discretion issue. In relation to this issue, Dingemans LJ accepted at paragraph 51 of his judgment that the exercise of the Secretary of State's discretion to make the order is to be reviewed by the First-tier Tribunal solely on public law grounds alone in accordance with the principles set out by Lord Reed in paragraph 71 of Begum (No1). Since the language of section 40(3) identifies that it is for the Secretary of State to exercise that discretion, the role of the First-tier Tribunal on appeal is necessarily limited to public law review. Given the wording of the statutory provision, it is not open to the First-tier Judge to step into the shoes of the Secretary of State and exercise the discretion afresh.

If the First-tier Judge concludes the first three questions in favour of the Secretary of State, the fourth and final question is whether the Secretary of State acted in breach of other relevant legal obligations and in particular those arising under section 6 of the Human Rights Act 1998 in making the decision. The First-tier Tribunal is very familiar with making decisions of this nature. It will be for the First-tier Judge to determine the necessary questions of fact arising from the evidence before the Tribunal and thereafter conclude whether on the basis of that evidence there has been any breach of these legal requirements. This final question is for the First-tier Tribunal to decide for itself on the merits, having due regard to the findings, evaluations and policies of the Secretary of State.

The position in relation to the correct approach to appeals against decisions depriving a person of their British citizenship using section 40(3) of the 1981 Act following the decision of the Court of Appeal in Chaudhry can therefore be summarised as follows: