This appeal to the Upper Tribunal of the Immigration and Asylum Chamber concerns the Secretary of State for the Home Department’s (hereinafter SSHD) decision to deprive the appellant of his British citizenship. The Upper Tribunal addressed the issue of whether Article 8(1) of the ECHR was engaged and whether the SSDH discretionary decision under section 40(2) or (3) to deprive the individual of his or her British citizenship was exercised correctly. The grounds for judicial review is that the delay in acting on the appellant’s fraud reduces the public interest in deprivation and is a disproportionate interference with Article 8 ECHR.
- Section 40A(1) of the British Nationality Act 1981
- Section 40A(2) of the British Nationality Act 1981
- Section 40A(3) of the British Nationality Act 1981
- Section 40(4) of the British Nationality Act 1981
- Section 6 of the Human Rights Act 1998
- Section 82 of the Nationality, Immigration and Asylum Act 2002
- Section 2B of the Special Immigration Appeal Commission Act 1997
The applicant arrived in the United Kingdom in 1996, claiming to come from Kosovo, using a false name. He was granted refugee status on those false details and on 4 November 2003, he became a British citizen with a false name and Kosovan identity. In 2005, he married an Albanian citizen in Albania who was granted indefinite leave to remain through an application. The application materials contained evidence of his true birthplace, Albania. In October 2008, the appellant sponsored the entry of his mother to the United Kingdom using a British passport. The materials his mother provided showed evidence of his true birthplace in Albania. On 14 March 2013, after his wife became a British citizen and fathering a son, he was issued a “nullity decision” on the basis that he had falsified elements of his identity when he applied for British citizenship.
In a subsequent decision dated 18 July 2019, the applicant’s appeal of the nullity decision was dismissed and permission to appeal to the Upper Tribunal was refused. The Upper Tribunal’s refusal of permission was quashed following a judicial review in the High Court. Permission to appeal to the Upper Tribunal was granted by the vice president on 4 March 2021.
This Appeal was made on the basis that the failure to act on his fraud for almost eight years after first being put on notice of it in 2005 reduces the public interest in deprivation and deprivation would be a disproportionate interference with Article 8 ECHR.
After a hearing on 30 June 2021 as to whether there was an error of law in the decision of the First-tier Tribunal Judge Rai, the applicant seeks to pursue that accounting for the SSHD reliance on her nullity decision of 14 March 2013, the SSHD failed to act on the appellant’s fraud for almost eight years after first being put on notice. The applicant claims the delay reduces the public interest in deprivation and it would be a disproportionate interference with Article 8 ECHR.
The applicant submitted that there was an error of law in the decision of First-tier Tribunal and that the decision should be set aside.
The applicant argued that the SSHD’s failure to act on the appellant’s fraud for eight years after first being put on notice in 2005 reduces the public interest in deprivation and would be a disproportionate interference with Article 8 ECHR. Should the First-tier Tribunal Judge Rai have approached the matter in this way, the applicant’s appeal would have been allowed on the grounds of right to respect for private life and family life as guaranteed under Article 8 ECHR.
The SSHD submitted that there was no error of law in the division of First-tier Tribunal in that the applicant had been deprived of citizenship in accordance with the law.
When considering whether there was an error of law in the division of the First-tier Judge, the court found that the court was entitled to find that delays on the part of the SSHD in the present case did not diminish the SSDH’s reliance upon public interest. The court also found with increased weight to the applicant’s case, there were no grounds that would entitle the appellant to succeed under Article 8.
The court covered, inter alia, the law regarding the deprivation of citizenship, looking at the principles as applicable in an appeal under section 40A of the British Nationality Act 1981. He recalled if Article 8 of the ECHR applied, “the tribunal will have to decide whether depriving the appellant of British citizenship would constitute a disproportionate interference with those rights” (KV (Sri Lanka) v Secretary of State for the Home Department  EWCA Civ 2483). Where Article 8 applies, the Tribunal must also decide whether the decision was compatible with the obligations of the decision-maker and thus pay due regard to the weight of the British nationality law in face of attempts by individuals to subvert it by fraudulent conduct. (Laci v Secretary of State for the Home Department  EWCA Civ 769)
The Court reviewed the court’s actions in considering whether the SSHD should have exercised her discretionary power of deprivation differently. The judge must have concluded that the delay in the present case was not such as to diminish weight to be given to the factors weighing in the Secretary of State’s favour for the purposes of Article 8(2) of the ECHR. The court found that the approach taken by Judge Rai was legitimate.
The court then distinguishes between the delay in the present case and that in Laci. Judge Rai was entitled to place no significant weight, in favour of the appellant, upon the period between November 2005, when the appellant’s wife was interviewed by the British Embassy in Tirana, and 2013, when the appellant was issued with the nullity decision. There is no indication that the British Embassy drew the respondent’s attention to anything untoward arising from the interview with the appellant’s wife. In 2007, the applicant operated under a false name and when re-issued his British passport, his place of birth was still recorded as Kosovo even though he reverted to his real name.
During the aforementioned period, the true facts were still materially obscured by the applicant. This was true until October 2008, when his mother provided the British Embassy with her Albanian family certificate which led the Embassy to alert the respondent. Four years and five month elapsed between this alert and the decision in March 2013 to issue a nullity decision.
Overall, the court found that Judge Rai was entitled to place no significant weight in favour of the appellant. The judge was undoubtedly entitled to find that any delay in part of the SSHD in the present case had no effect on diminishing the respondent’s reliance upon the public interest.
We accordingly find that the decision of the First-tier Tribunal does not contain an error of law, such as to make it appropriate to set the decision aside. The appellant’s appeal is accordingly, dismissed.
Aziz v Secretary of State for the Home Department  EWCA Civ 1884
BA (deprivation of citizenship: appeals)  UKUT 85 (IAC)
EB Kosovo (FC) (Appellant) v Secretary of State for the Home Department  UKHL 41
Edwards (Inspector of Taxes) v Bairstow  UKHL 3 (25 July 1955)
Hysaj (Deprivation of Citizenship: Delay)  UKUT 128 (IAC)
Deliallisi (British citizen: deprivation appeal: Scope)  UKUT 439(IAC)
Laci v Secretary of State for the Home Department  EWCA Civ 769
KV (Sri Lanka) v Secretary of State for the Home Department  EWCA Civ 2483
R (Begum) v Special Immigration Appeals Commission  UKSC 7