Dinjan Hysaj v The Secretary of State for the Home Department [2020] UKUT 128 (IAC)

[2020] UKUT 00128 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Venue Heard at Field House Decision & Reasons Promulgated

On 28-29 November 2019, 7 January 2020 On

Before

THE HON. MR JUSTICE LANE, PRESIDENT UPPER TRIBUNAL JUDGE O’CALLAGHAN

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

DINJAN HYSAJAppellant

(ANONYMITY DIRECTION NOT MADE)Appellant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Sonali Naik QC, Helen Foot, Counsel, instructed by Oliver & Hasani Solicitors for Appellant

Robert Palmer QC, Julia Smyth, Counsel, instructed by Government Legal Department for Respondent

1. The starting point in any consideration undertaken by the Secretary of State (“the respondent”) as to whether to deprive a person of British citizenship must be made by reference to the rules and policy in force at the time the decision is made. Rule of law values indicate that the respondent is entitled to take advice and act in light of the state of law and the circumstances known to her. The benefit of hindsight, post the Supreme Court judgment in R (Hysaj) v. Secretary of State for Home Department[2017] UKSC 82, does not lessen the significant public interest in the deprivation of British citizenship acquired through fraud or deception.

2. No legitimate expectation arises that consideration as to whether or not to deprive citizenship is to be undertaken by the application of a historic policy that was in place prior to the judgment of the Supreme Court in Hysa j.

3. No historic injustice is capable of arising in circumstances where the respondent erroneously declared British citizenship to be a nullity, rather than seek to deprive under section 40(3) of the British Nationality Act 1981, as no prejudice arises because it is not possible to establish that a decision to deprive should have been taken under a specific policy within a specific period of time.

4. The respondent's 14-year policy under her deprivation of citizenship policy, which was withdrawn on 20 August 2014, applied a continuous residence requirement that was broken by the imposition of a custodial sentence.

5. A refugee is to meet the requirement of article 1A(2) of the 1951 UN Refugee Convention and a person cannot have enjoyed Convention status if recognition was consequent to an entirely false presentation as to a well-founded fear of persecution.

6. Upon deprivation of British citizenship, there is no automatic revival of previously held indefinite leave to remain status.

7. There is a heavy weight to be placed upon the public interest in maintaining the integrity of the system by which foreign nationals are naturalised and permitted to enjoy the benefits of British citizenship. Any effect on day-to-day life that may result from a person being deprived of British citizenship is a consequence of the that person’s fraud or deception and, without more, cannot tip the proportionality balance, so as to compel the respondent to grant a period of leave, whether short or otherwise.

DECISION AND REASONS

Date 2020-03-17

Introduction

[1]This is an appeal against the decision of Judge of the First-tier Tribunal Griffith (‘the Judge’), issued on 26 October 2018, by which the appellant’s appeal against the decision of the respondent to deprive him of British citizenship under section 40(3) of the British Nationality Act 1981 (‘the 1981 Act’) was refused.

[2]By way of a decision dated 19 November 2018 Judge of the First-tier Tribunal Lambert granted the appellant permission to appeal to this Tribunal on all grounds.

Facts

[3]The appellant was born in 1977 and is a citizen of Albania. He entered this country in 1998 and claimed asylum. He provided the United Kingdom authorities with his correct name, but falsely claimed to be a citizen of the Federal Republic of Yugoslavia and to have been born and resided in the autonomous province of Kosovo, which at the time he entered this country was subject to armed conflict. He falsely claimed to have been born in 1981 and presented to the British authorities as an unaccompanied minor escaping the conflict. He was accepted to be a refugee and granted indefinite leave to remain (‘ILR’) in 1999. In 2004 he applied for and was granted naturalisation as a British citizen, using the same personal details he had provided in his application for international protection. It is common ground between the parties that the appellant obtained his British citizenship by fraud. He was issued with a British passport in 2004.

[4]The appellant travelled to Albania and married his wife, a citizen of Albania, on 18 July 2007. Eight days later his wife submitted an application to the British Embassy in Tirana for entry clearance as the spouse of a British citizen. She was interviewed on 14 September 2007 and disclosed the appellant’s true date of birth and that he was born in Shkoder, Albania.

[5]On 27 August 2008, the respondent wrote to the appellant and notified him that she was considering depriving him of his British citizenship. The appellant admitted his deception by means of a letter sent to the respondent by his solicitors on 15 September 2008. Correspondence flowed between the appellant’s solicitors and the respondent, with the appellant being informed that a decision as to deprivation was likely to be made by the end of March 2010.

[6]In June 2010 the appellant fell into a disagreement over a spilt pint with another man in a public house in Hemel Hempstead. Staff sent him out of the building into the beer garden to calm down. Having smoked a cigarette, he re-entered the building and, with a pint glass in his hand, tapped the shoulder of his victim, who turned around to receive the pint glass in his face, which shattered on impact. The victim sustained several cuts, including one that went all the way through his cheek and cut the back of his tongue. He required over forty stitches and was left with a degree of scarring. The appellant was convicted by a jury at St Albans’ Crown Court and on 20 May 2011 HHJ Catterson sentenced to him to five years’ imprisonment for wounding with intent to do grievous bodily harm and 12 months’ imprisonment for assault occasioning actual bodily harm, concurrent.

[7]On 7 July 2012, whilst a serving prisoner, the appellant reached the 14-year mark of his residence in this country. The respondent wrote to the appellant on 13 February 2013 informing him that his grant of nationality was a nullity as he had used false particulars when making his application. On 8 April 2013 the respondent served notice of her intention to deport the appellant and on 9 April 2013 the application of the appellant’s wife for entry clearance was refused. The appellant was released from custody on 18 November 2013. His wife entered this country clandestinely in 2014, with their eldest child who is a British citizen by descent. Upon their arrival they resided with the appellant. Two further children were born in this country and all three children continue to possess British citizenship.

[8]The appellant challenged the decision to declare the grant of his British citizenship a nullity and was ultimately successful before the Supreme Court: R (Hysaj) v. Secretary of State for the Home Department

[2017] UKSC 82

; [2018] 1 W.L.R. 221.

[9]The respondent withdrew her decision to treat the appellant’s British citizenship as a nullity on 10 February 2018 and subsequently issued a decision on 3 July 2018 to deprive the appellant of his British citizenship under section 40(3) of the 1981 Act. The respondent detailed that the appellant would not have been recognised as a refugee and granted ILR on the ground of possessing a well-founded fear of persecution as a Kosovan if his Albanian nationality had been known. Further, the appellant was only able to apply for citizenship on the basis that he possessed settled status arising from fraud. Consequently, the respondent decided that the exercise of deception was material to the grant of citizenship. The decision detailed, inter alia:

‘At the time your client’s deception had been discovered in 2007, your client had not been present in the UK for more than 14 years. Furthermore, it is noted that your client was sentenced to 5 years in prison on 20/05/2011. At that time, given he had less than 14 years residence, applying the principle of discounting periods of imprisonment from the residence calculation for long residence, your client would not have been considered to have accrued 14 years residence until significantly later than 2014 when the 14 year concession in the nationality guidance was withdrawn. As such, the assertion that your client should now benefit from this concession is not accepted.’ … ‘Your client fraudulently obtained his leave to remain and British citizenship and maintained this deception until the fraud was revealed in 2007. It is also noted that he also received a sentence of 5 years imprisonment for grievous bodily harm and assault occasioning actual bodily harm in 2011. It is not accepted that your client should now be considered to be of good character simply on the basis of the time that has passed.’ … ‘For the reasons given above it is not accepted that there is a plausible, innocent explanation for the misleading information which led to the decision to grant citizenship. Rather, on the balance of probabilities, it is considered that your client provided information with the intention of obtaining a grant of status and/or citizenship in circumstances where his application would have been unsuccessful if your client had told the truth. It is therefore considered that the fraud was deliberate and material to the acquisition of British citizenship.’

The appellant’s appeal to the First-tier Tribunal

[10]The appellant appealed to the First-tier Tribunal. Following a hearing in October 2018, the Judge refused the appeal. As to the issue of delay, the Judge decided at [73]:

‘On 13 February 2013, the appellant was informed that those appeals had not yet been determined. It appears, therefore, that the respondent in order to make a decision examined the case law and, on the basis of the law as it then stood, decided to annul his citizenship. The appellant exercised his right of judicial review and in December 2017 it was determined that the decisions in the Court of Appeal were wrong. Albeit, therefore, the decision of February 2013 was unlawful, the respondent acted in accordance with the law at the time. Although this case has been ongoing for ten years, I am not satisfied that there has been any unreasonable or unaccountable delay on the part of the respondent that falls within the type contemplated in EB (Kosovo)[2008] UKHL 41.’

[11]The Judge considered the reasonably foreseeable consequences of the deprivation of the appellant’s British citizenship and found at [69]-[71]:

‘I consider it reasonably foreseeable that the respondent would not take action to remove or deport the appellant but would grant him leave taking into account his family circumstances. He was granted ILR in the past and, whilst he would not automatically become entitled to such leave on deprivation, there are factors in his favour which make it less likely that he would be removed. These include the fact that his wife has very recently been granted limited leave to remain in the UK and is entitled to work (but has chosen not to do so) and that he has three British citizen children who are entitled to the benefits of such citizenship. It is recognised that it is in the best interests of children to be brought up by their parents. I cannot speculate on what conditions, if any, would be attached to any period of leave if granted. The family would remain as a family unit with some means of support even if that might entail a change of accommodation or change of school for the eldest child. On the other hand, the respondent might decide to deport the appellant in light of his conviction in 2011. If so, the appellant will be able to make representations and bring a challenge under article 8 at that stage. The relevant provisions he will have to meet are found in paragraph 398, 399 and 399A of the Immigration Rules together with the public interest considerations in section 117 of the 2002 Act. Owing to the length of his sentence he falls within paragraph 398(c) and will need to show very compelling circumstances over and above those identified in those paragraphs if the public interest in his deportation is to be outweighed. I cannot pre-judge the outcome of such challenge but as suggested in Aziz[2018] EWCA Civ 1884, I should make a ‘predictive assessment’

. The threshold to be met is a very high one but there are factors in the appellant’s favour which could act to tip the balance in his favour. These include the length of stay in the UK, now 20 years and amounting to half his lifetime; his change of circumstances; changes to his home country in the interim; the significant difficulties he is likely to have to overcome if re-establishing a life there and the fact that he has three British citizen children, two of whom were born here. Also, he has not been in any further trouble with the authorities since the incident that led to his conviction in 2011 which appears to have been an isolated and out of character episode. Taking into account all his circumstances I do not find it reasonably foreseeable that deprivation will result in his deportation.’

[12]As to whether the application of the public interest was to be reduced consequent to the existence of historic injustice,

the Judge reasoned at [74]:

‘It was submitted that the appellant has been prejudiced by the actions of the respondent because, had a decision under section 40(3) been made earlier, he could have benefited under the fourteen year rule which was included in the old policy, withdrawn in August 2014. The relevant paragraph 55.7.2. stated: ‘In general, the Secretary of State will not deprive of British citizenship in the following circumstances: •. If a person has been resident in the United Kingdom for more than fourteen years we will not normally deprive of citizenship.’

It is clear from the use of the word ‘normally’ that there is not a guarantee that fourteen years’ residence will mean that citizenship will not be deprived but rather that discretion may be exercised. The appellant completed fourteen years’ residence in 2012, at which time he was serving a prison sentence for an offence involving violence. In light of public interest considerations, that is a factor that might have militated against the exercise of discretion in his favour. It is therefore speculative to say that he would not have been deprived of his citizenship under the old policy based on his length of residence had a decision been made to deprive him of citizenship under the old policy.’

The Judge concluded at [77] of her decision:

‘The public interest in depriving this appellant of his citizenship is high. I have found above that it is reasonably foreseeable that he will not be removed, and I have not been able to find any exceptional circumstances that are likely to result in breach of his article 8 rights. It follows that I do not find that there would be a disproportionate interference to the appellant’s article 8 rights as a result of depriving him of British citizenship, which he obtained through deception. Accordingly, I find no reasons why the respondent should have exercised discretion differently.’

Appeal to this Tribunal

[14]The appellant relies upon five grounds of appeal, asserting that the First-tier Tribunal: 1. Misdirected itself as to delay and the respondent’s reliance upon the nullity doctrine. 2. Unlawfully limited its consideration as to ‘limbo’ and reasonably foreseeable consequences. 3. Failed to address a preliminary issue as to whether the appellant would be left without any leave pending any decision by the respondent as to whether to deport him. 4. Applied an erroneous exceptionality test in its consideration of article 8. 5. Conflated relevant tests and failed to assess the question of the respondent’s exercise of discretion, independently of the assessment of article 8.

[15]For the sake of clarity, permission to appeal was granted upon the four grounds originally advanced by the appellant. Ground 3 above was initially incorporated within ground 2 and Ms. Naik QC was granted permission at an earlier hearing to advance it on behalf of the appellant as a stand-alone ground.

[16]Before this Tribunal, the respondent concedes that the Judge erred in law by failing to properly engage with the appellant’s argument in relation to his loss of status on deprivation, but asserts that it is a non-material error because ultimately the failure could not have made any difference to the outcome of the appeal.

The relevant statutory regime

[17]Section 20 of the British Nationality Act 1948 (‘the 1948 Act’) provided at section 20(2) that a person who had registered or naturalised as a Citizen of the UK and Colonies (‘CUKC’), the main nationality status at the time, could be deprived of his citizenship on the basis of fraud, false representation and the concealment of material facts. A person who had naturalised as a CUKC could be deprived of his citizenship if the respondent was satisfied that they had shown themselves to be disloyal or disaffected towards His Majesty, unlawfully traded or communicated with or assisted an enemy during war, been sentenced to at least 12 months’ imprisonment, or had been ordinarily resident in a foreign country for seven or more continuous years: section 20(3) and (4). The Act provided that the respondent had to be satisfied that it would not be conducive to the public good for the person to continue to be a CUKC.

[18]Section 40 the 1981 Act established four grounds upon which the respondent could by order deprive of citizenship a person who had acquired British citizenship by registration or naturalisation, if satisfied:• . Registration or naturalisation had been obtained by fraud, false representation or concealment of material fact: section 40(1);

• . The person had shown disloyalty or disaffection towards Her Majesty by act of speech: section 40(3)(a);

• . The person had unlawfully traded or communicated with an enemy during any war in which Her Majesty was engaged or been engaged in or associated with any business carried out to assist an enemy in that war: section 40(3)(b); or

• . The person had been sentenced in any country to twelve months or more imprisonment within five years of the date of naturalisation or registration and the person would not become stateless: section 40(3)(c); section 40(5)(b).

[19]The respondent could not deprive a person of his British citizenship unless satisfied that it was not conducive to the public good that that person should continue to be a British citizen. Such powers reflected the deprivation powers in place under the 1948 Act.

[20]A wholly new ‘section 40’ was inserted into the 1981 Act by the Nationality, Immigration and Asylum Act 2002 and entered into force on 1 April 2003. Three of the specific grounds listed in the original section 40 were replaced by a general power for the respondent to deprive a person of his citizenship if satisfied that the person has done anything seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory: section 40(2). The power to deprive a person of citizenship because registration or naturalisation was obtained by means of fraud, false representation or concealment of a material fact was retained and set out in section 40(3). During the Act’s passage through Parliament, the then Government confirmed that it intended to sign and ratify the 1997 European Convention on Nationality and the new measures were considered to be in line with the Convention.

Article 7 of the Convention

permits states to withdraw citizenship on the grounds of ‘conduct seriously prejudicial to the vital interests of the State Party’ but not if the person would be made stateless. In the event, the United Kingdom did not sign the Convention.

[21]Further changes were made to the deprivation of citizenship powers in the aftermath of the London bombings in July 2005 through section 56 of the Immigration, Asylum and Nationality Act 2006. The wording of section 40(2) was changed so as to permit the respondent to deprive a person of citizenship if satisfied that ‘deprivation is conducive to the public good’ rather than on the grounds that the person had done something ‘seriously prejudicial to the vital interests’ of the United Kingdom and its territories.

[22]For the purposes of our consideration, the relevant provisions of section 40 of the 1981 Act (as amended) are: (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.

[23]Whilst the need to avoid statelessness is elevated above other considerations in matters where section 40(2) applies such elevation does not arise under section 40(3). This reflects the seriousness with which fraud, false representation or concealment of a material fact are viewed, striking as they do at the heart of the system by which a foreign national can apply for British citizenship. The system is dependent upon applicants acting in good faith, and upon the truth of details provided by applicants.

[24]The respondent’s guidance as to the provision made for deprivation of British citizenship status by order under section 40 of the 1981 Act is detailed at Chapter 55 of the Nationality Instructions, titled ‘Deprivation and Nullity of British citizenship’.

Consideration of an appeal under section 40A of the British Nationality Act 1981

[25]In advance of a deprivation order being made, the respondent must provide notice in writing as to the decision to deprive a person of British citizenship: section 40(5) of the 1981 Act. The attendant right of appeal to the First-tier Tribunal under section 40A(1) is established by service of the notice. Under the 1981 Act an individual remains a British citizen until an order is made to deprive and until such order, they are not subject to immigration control, cannot be granted leave to enter or remain and cannot be required to submit biometrics. Where deprivation is pursued under section 40(3), the formal deprivation order is normally only made once appeal rights against the decision to deprive are exhausted.

[26]The Court of Appeal identified several principles applicable to the consideration of an appeal in KV (Sri Lanka) v. Secretary of State for the Home Department

[2018] EWCA Civ 2483

;

[2018] 4 WLR 166

, per Leggatt LJ at [6]:

‘Pursuant to section 40A(1), a person who is given such a notice may appeal against the decision to the First-tier Tribunal. The task of the tribunal on such an appeal has been considered by the Upper Tribunal (Immigration and Asylum Chamber) in a number of cases including Deliallisi (British Citizen: deprivation appeal; Scope)[2013] UKUT 439 (IAC) and, more recently,BA (deprivation of citizenship: Appeals)[2018] UKUT 85 (IAC). I would endorse the following principles which are articulated in those decisions and which I did not understand to be in dispute on this appeal: (1) Like an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002, an appeal under section 40A of the 1981 Act is not a review of the Secretary of State's decision but a full reconsideration of the decision whether to deprive the appellant of British citizenship. (2) It is thus for the tribunal to find the relevant facts on the basis of the evidence adduced to the tribunal, whether or not that evidence was before the Secretary of State when deciding to make a deprivation order. (3) The tribunal must first establish whether the relevant condition precedent specified in section 40(2) or (3) exists for the exercise of the discretion whether to deprive the appellant of British citizenship. In a section 40(3) case, this requires the tribunal to establish whether citizenship was obtained by one or more of the means specified in that subsection. (4) If the condition precedent is established, the tribunal has then to ask whether the Secretary of State's discretion to deprive the appellant of British citizenship should be exercised differently. For this purpose, the tribunal must first determine the reasonably foreseeable consequences of deprivation. (5) If the rights of the appellant or any other relevant person under article 8 of the European Convention on Human Rights are engaged, the tribunal will have to decide whether depriving the appellant of British citizenship would constitute a disproportionate interference with those rights. But even if article 8 is not engaged, the tribunal must still consider whether the discretion should be exercised differently. (6) As it is the Secretary of State who has been charged by Parliament with responsibility for making decisions concerning deprivation of citizenship, insofar as the Secretary of State has considered the relevant facts, the Secretary of State's view and any published policy regarding how the discretion should be exercised should normally be accorded considerable weight (in which regard see Ali v Secretary of State for the Home Department[2016] UKSC 60; [2016] 1 WLR 4799).’

[27]Upon considering the effect of Pham v. Secretary of State for the Home Department

[2015] UKSC 19

;

[2015] 1 WLR 1591

, Leggatt LJ further observed at [16]:

‘In making a decision whether to order deprivation of citizenship in the exercise of a discretionary power under section 40, the decision-maker (whether that be the Secretary of State or the tribunal on an appeal) has to form a view, not just as to whether it would be rational to make such an order, but whether it is right to do so. This necessarily involves an evaluation of the relative weight to be accorded to the public interest in depriving the person concerned of citizenship and any competing interests and considerations, including the impact of deprivation on the legal status of the individual concerned.’

[28]Although deprivation of citizenship may result in interference with article 8 rights, the right to a nationality is not itself a right protected by the European Convention on Human Rights, at [17]

[29]As for the use of deception when applying for naturalisation, at [19]: ‘Where, as in the present case, it is established not only that deception was used but that, without it, an application for naturalisation as a citizen would not have been granted, it seems to me that it will be an unusual case in which the applicant can legitimately complain of the withdrawal of the rights that he acquired as a result of naturalisation. That is because the withdrawal of those rights does no more than place the person concerned in the same position as if he had not been fraudulent and had acted honestly in making the application …'

[30]The Court of Appeal recognised that consideration will have to be given to circumstances where consequent to naturalisation an individual has lost other rights previously enjoyed which will not or may not be restored if he is now deprived of his citizenship. In such a case depriving a person of citizenship will not simply return him to the status quo ante but will place him in a worse position than if he had not been granted citizenship in the first place. It was acknowledged that this may occur where a person who was a national of another state lost that nationality as a consequence of having become a British citizen and would not be entitled to resume his former nationality if deprived of his British citizenship. Such assessment will involve a balancing exercise and a judgment as to whether in all the circumstances deprivation is proportionate, at [20]:

‘... In such a case the decision-maker (whether it be the Secretary of State or the tribunal on an appeal) will need to consider whether deprivation of citizenship is justified having regard to that consequence. Relevant factors in making that determination are likely to include both the nature and circumstances of the deception by means of which naturalisation was obtained but also, on the other side of the scales, the likelihood (if any) that the individual would be able to re-acquire his former citizenship and the extent to which the inability to do so will have practical detrimental consequences for the individual or others. Although it does not seem to me necessary that the assessment should have to be conducted using the formal four stage test of proportionality adopted in cases such as Bank Mellat v HM Treasury (No 2)[2013] UKSC 39; [2014] AC 700, para 74, it will necessarily involve a balancing exercise and a judgment as to whether in all the circumstances deprivation of citizenship is proportionate.’

[31]It is the respondent, rather than the Tribunal, who is primarily responsible for determining and safeguarding the public interest in maintaining the integrity of the rights flowing from British citizenship. Consequently, where the requirements in section 40(3) are satisfied, the Tribunal is required to place significant weight on the fact that Parliament has decided, in the public interest, that a person who has employed deception to obtain British citizenship should be deprived of that status.

[32]Both the respondent and the Tribunal are bound to apply the policy guidance in the Nationality Instructions, or to say that they are departing from it and to give rational and defensible reasons for doing so: Aziz v. Secretary of State for the Home Department

[2018] EWCA Civ 1884

;

[2019] 1 WLR 266

, at [35]. Such policy indicates where and how the respondent considers that the balance falls to be struck, as between, on the one hand, the public interest in maintaining the integrity of immigration control and the rights flowing from British citizenship, and, on the other, the interests of the individual concerned and of others likely to be affected by that person’s ceasing to be a British citizen: Deliallisi (British citizen: deprivation appeal: scope)

[2013] UKUT 00439 (IAC)

, at [36].

[33]Upon the Tribunal being satisfied that depriving an appellant of British citizenship would constitute a disproportionate interference with the article 8 rights of that person or any other person whose position falls to be examined on the principles identified in Beoku-Betts v. Secretary of State for the Home Department

[2008] UKHL 39

; [2009] 1 A.C. 115 it is then compelled by section 6 of the Human Rights Act 1998 to re-exercise discretion by finding in favour of the appellant. However, the fact that the scope of a section 40A appeal is wider than article 8 means that, in a case where article 8(2) is not even engaged, because the consequences of deprivation are not found to have consequences of such gravity as to engage that article, the Tribunal must still consider whether discretion should be exercised differently: Deliallisi, at [37]

[34]In BA (deprivation of citizenship: appeals)

[2018] UKUT 00085 (IAC)

; [2018] Imm. A.R. 807, the Tribunal held at [44]:

‘The Tribunal will be required to place significant weight on the fact that the Secretary of State has decided, in the public interest, that a person who has employed deception etc. to obtain British citizenship should be deprived of that status. Where statelessness is not in issue, it is likely to be only in a rare case that the ECHR or some very compelling feature will require the Tribunal to allow the appeal.’

[35]The focus of a section 40A appeal is to ascertain the reasonably foreseeable consequences of deprivation, which may involve removal. The Tribunal confirmed in Deliallisi, at [56], that even if removal is too uncertain to feature directly as a consequence, the possibility of removal and any period of uncertainty following deprivation may be required to be taken into account in assessing the effect that deprivation would have, not only on the appellant but also on members of his family. While it is necessary for the Tribunal to have regard to the reasonably foreseeable consequences of deprivation when determining whether the making of the deprivation order itself is lawful, it is not necessary for it to go further and conduct a proleptic, or anticipatory, analysis of whether the appellant would be likely to be deported at a later stage: Aziz, at [21]-[32].

[36]Sales LJ (as he then was) held in Aziz, at [26], that whilst regard is to be had to the reasonably foreseeable consequences of deprivation, an examination of such consequences is only required in so far as it is necessary to make an assessment in relation to them in order to rule upon whether the making of the deprivation order itself will be lawful and compatible with Convention rights, in particular article 8 and section 55 of the Borders, Citizenship and Immigration Act 2009 (‘section 55’). This is a fact specific assessment.

[37]Even where the respondent’s reasons for making a deprivation order include that deprivation is necessary to afford an opportunity to make a deportation order later, it is still unlikely to be appropriate for the Tribunal to conduct proleptic analysis. Sales LJ held in Aziz, at [29]-[30], a matter in which the respondent to sought to deprive several convicted criminals of their citizenship under section 40(2) of the 1981 Act:

‘In other cases, it may be that part of the Secretary of State's reasons why the making of an order to deprive an individual of British citizenship is conducive to the public interest is that this step is necessary to afford the Secretary of State an opportunity to make a deportation or removal order at a later stage. In such a case, again it seems to me that it is likely to be unnecessary and inappropriate for the FTT on an appeal against deprivation of citizenship to conduct a full proleptic assessment of whether a deportation order will or will not ultimately be made at some time in the future (and after a separate appeal to the FTT in relation to the decision to make such an order). The evidence available and circumstances obtaining at the time of the making of the deprivation order (and the appeal in relation to that) are very likely to be different from that which will be available and those which will obtain when the decision regarding the making of a deportation order is actually taken (and when there is an appeal in relation to that). It will usually be sufficient to support this part of the reasoning of the Secretary of State in relation to making a deprivation order that it can be seen that by making such an order he will have a real prospect of making a deportation order at the later stage. The FTT should resist having tribunal time taken up with unnecessary and inevitably speculative evidence and argument about whether a deportation order will in fact be made at the end of the day, if all that needs to be shown is that there is a real prospect that a deportation order may eventually be made. In relation to such a case, it would in principle be open to the individual concerned to try to show that there was no real prospect of him being deported at the end of the day, as part of his case to challenge the making of the deprivation order (this would be especially important if the Secretary of State does not seek to or cannot justify the making of a deprivation order on the simple basis referred to in para. [27] above). If the individual could show that, then the Secretary of State's justification for making the deprivation order might fall away. I can see that if the individual does seek to make out such a case, this could give rise to case management issues for the FTT. Again, where possible, the FTT should resist being drawn at the deprivation of citizenship stage into a full proleptic assessment of whether a deportation order will be made at the end of the day, where that is unnecessary and would involve an inappropriate waste of time and effort for the tribunal and the parties. It may be that if an individual maintains that there will be no real prospect of his being deported at the end of the day, the FTT would in anything other than a very clear case be able to dismiss that contention at an early stage in the proceedings without needing to proceed to a full, elaborate proleptic assessment of whether a deportation order will be made or not. Much will depend upon the way in which the issues are framed on the appeal and whether the FTT is in a position sensibly to make an early assessment of the position and to avoid a full proleptic hearing on the issue of whether a deportation will in fact occur at the end of the day.’

[38]Therefore, it will usually be sufficient for the Tribunal simply to support the respondent’s reasoning that deprivation is necessary to make a deportation order at a later time because by making such an order there will be a real prospect of a deportation order being made later. Even if the Tribunal is not satisfied with the respondent’s reasoning on the ground that it concludes that there is no real prospect of deportation, the Tribunal should still usually be able to avoid making a proleptic assessment.

Hearing before this Tribunal

[39]Being mindful that there are presently a number of deprivation of citizenship appeals before the First-tier Tribunal and that a decision from a Presidential panel would aid consideration of such appeals this matter proceeded before us as a rolled-up hearing, permitting us to consider the error of law appeal and, if we found that the Judge had materially erred in law, to proceed to remake the decision.

[40]With the agreement of the parties at the commencement of the hearing, we permitted reliance by both parties upon evidence that was not placed before the Judge. Such evidence as was admitted under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (‘2008 Procedure Rules’) does not form part of our error of law consideration.

[41]The respondent relies upon several witness statements from Fiona Johnstone, Policy Manager, BICS Policy and International Group, Home Office, and Sophia Grundy, SEO Senior Caseworker, Status Review Unit, Refused Case Management Directorate, Home Office. By an order dated 9 September 2019, the first witness statements of both Ms. Johnstone and Ms. Grundy were admitted under the 2008 Procedure Rules. By the same order the appellant was permitted to put questions to the two witnesses and their responses were directed to be presented in the form of witness statement. Both witnesses answered the appellant’s questions by individual statements dated 9 October 2019. In response to further permitted questions from the appellant, a third witness statement from Ms. Grundy, dated 3 January 2020, was filed and served.

[42]By a letter dated 29 October 2019 the appellant requested that Ms. Johnstone and Ms. Grundy be directed to attend before the Tribunal for cross-examination. The request was re-affirmed by correspondence dated 7 November 2019. The respondent objected to this course of action. By an order dated 12 November 2019, the Tribunal confirmed its decision that neither witness was required to attend the hearing as the witnesses had answered the questions presented by the appellant and no adequate reason had been provided as to why oral evidence was required. It was observed that the issues raised by the appellant in correspondence could appropriately be addressed by submissions.

[43]The appellant renewed his application for the attendance of the witnesses at the commencement of the hearing, providing general detail as to the terms of the proposed cross-examination. The Tribunal was satisfied there was a significant interplay between Ms. Grundy’s evidence as to relevant policies and Ms. Naik QC’s proposed questions to make it appropriate for Ms. Grundy to attend and be examined.

[44]As to Ms. Johnstone the Tribunal concluded that the evidence conveyed by her witness statement was substantively in the nature of submissions. This was not a criticism, as the respondent had decided to provide evidence as to whether deprivation of citizenship leads to a ‘resumption’ of ILR in response to observations by a differently constituted panel of the Tribunal at an earlier case management hearing. The nature of her evidence was such that we concluded that there was no good reason for her to be called and examined.

[45]The appellant and his wife relied upon additional witness statements and were permitted to present oral evidence before the Tribunal.