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Deprivation of citizenship for fraud after Begum

Deprivation of citizenship for fraud after Begum

In Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238 (IAC), the Upper Tribunal has applied the guidance given in R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7 to deprivation of citizenship appeals on grounds of fraud. It does so in a way which inflicts maximum damage on the ability of appellants to challenge the decisions of the Secretary of State.

Recent cases on deprivation appeals

In Laci v Secretary of State for the Home Department [2021] EWCA Civ 769, also on deprivation for fraud, Lord Justice Underhill held the five principles set out in paragraph 6 of KV (Sri Lanka) [2018] EWCA Civ 2483 “should be taken as the starting-point in future cases”. This was subject to the caveat (in paragraph 40 of Laci) that anything said in the authorities reviewed in his judgment about the scope of an appeal under section 40A of the British Nationality Act 1981 should be read subject to the decision in Begum.

The subject of Lord Reed’s judgment in Begum, with which the other justices agreed, was deprivation on the grounds that this is “conducive” to the public good”. He held at paragraph 67 that:

The statutory condition which must be satisfied before the discretion can be exercised is that “the Secretary of State is satisfied that deprivation is conducive to the public good”. The condition is not that “SIAC is satisfied that deprivation is conducive to the public good”. The existence of a right of appeal against the Secretary of State’s decision enables his conclusion that he was satisfied to be challenged. It does not, however, convert the statutory requirement that the H Secretary of State must be satisfied into a requirement that SIAC must be satisfied.

He held, however, that the Special Immigration Appeals Commission must determine for itself whether the decision was compatible with the obligations of the decision-maker under the Human Rights Act 1998 (paragraphs 68 and 69).

As Underhill LJ paraphrased it at paragraph 40 of Laci this meant, putting aside the human rights’ question, that in a case under section 2B of the Special Immigration Appeals Act 1997 the Commission should approach its task “on essentially Wednesbury principles”.

Underhill LJ continued:

It may be that that reasoning is not confined to section 2B or to cases falling under section 40 (2), in which case some of statements quoted above about the correct approach to appeals under section 40A in the case of decisions under section 40 (3) will require qualification… But I do not think that that is something on which I should express a view here. Begum does not bear directly on the actual grounds of appeal before us.

The Upper Tribunal in Ciceri makes short work of the point (at paragraph 17). The principles in KV (Sri Lanka) must now be read in the light of Begum and:

Although Lord Reed was considering the nature of an appeal to the Commission under section 2B of the Special Immigration Appeals Commission Act 1997, that provision is the equivalent of section 40A and we see no reason to distinguish between those provisions for present purposes.

That explains why section 40A should be treated in the same way as section 2B, but not why an appeal against a decision under section 40(2) of the British Nationality Act 1981 (conducive grounds) should be treated in the same way as an appeal against a decision under section 40(3) (fraud, misrepresentation or concealment of a material fact). This was a point which neither Lord Reed nor Lord Justice Underhill regarded as straightforward.

Begum and deprivation based on fraud

At paragraph 43 of Begum, in the course of critiquing Deliallisi v Secretary of State for the Home Department [2013] UKUT 439 (IAC), Lord Reed opined (at paragraph 56) that while section 40(2) involves consideration of matters non-justiciable, the suggestion that section 40(3) does so is “questionable”. Section 40(2) involves considerations of national security, matters of judgement and policy entrusted to the executive, with which the Secretary of State is better placed than the courts to deal.  By contrast, section 40(3) is concerned with the justiciable questions, wholly familiar to the immigration tribunals, of whether a person is telling the truth or not and of whether or not any falsehood was material to a decision.

Lord Reed cited, but neither approved nor disapproved, the passage in paragraph 9 of Pirzada (Deprivation of Citizenship: General Principles) [2017] UKUT 196 (IAC) that “[t]here is no suggestion that a Tribunal has the power to consider whether it is satisfied of any of the matters set out in sub-sections (2) or (3); nor is there any suggestion that the Tribunal can itself exercise the Secretary of State’s discretion”.

Lord Reed’s judgment was couched in terms of section 40(2), the provision before him. He cautioned against “an assumption that SIAC’s jurisdiction is uniform, without regard to the nature of the particular decision under appeal or the terms of the relevant statutory provisions” (paragraph 75).  Lord Reed followed Rehman [2001] UKHL 47 in holding, at paragraph 59, that there must be a proper factual basis for the Secretary of State’s opinion. He cited Lord Hoffmann’s view that while evaluation of risk should be left to the Secretary of State, the same deference might not be required in matters pertaining, for example, to the question of a breach of Article 3 (paragraph 61). And he recorded at paragraph 64 that “the appellate process must enable the procedural requirements of the ECHR to be satisfied, since many appeals will raise issues under the Human Rights Act”.

He held at paragraph 69 that:

… in appeals under section 2B of the 1997 Act against decisions made under section 40(2) of the 1981 Act, the principles to be applied by SIAC in reviewing the Secretary of State’s exercise of his discretion are largely the same as those applicable in administrative law, as I have explained. But if a question arises as to whether the Secretary of State has acted incompatibly with the appellant’s Convention rights, contrary to section 6 of the Human Rights Act, SIAC has to determine that matter objectively on the basis of its own assessment. 

It is understood that permission to appeal is being sought in Ciceri.

The KV (Sri Lanka) principles restated

The five terse, elegant principles set out by Leggatt LJ at paragraph 6 of KV (Sri Lanka) become seven in paragraph 30 of Ciceri, repeated in the headnote.

The first three KV (Sri Lanka) principles:

(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.

Are expressed as follows in Ciceri:

(1) The Tribunal must first establish whether the relevant condition precedent specified in section 40(2) or (3) of the 1981 Act exists […] In answering the condition precedent question, the Tribunal must adopt the approach set out in paragraph 71 of the judgment in Begum, which is to consider whether the Secretary of State has made findings of fact which are unsupported by any evidence or are based on a view of the evidence that could not reasonably be held.

While the final two in KV (Sri Lanka):

(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.

Become, in Ciceri:

(2) If the relevant condition precedent is established, the Tribunal must determine whether the rights of the appellant or any other relevant person under the ECHR are engaged (usually Article 8). If they are, the Tribunal must decide for itself whether depriving the appellant of British citizenship would constitute a violation of those rights, contrary to the obligation under section 6 of the Human Rights Act 1998 not to act in a way that is incompatible with the ECHR.

(3) In so doing:

(a) the Tribunal must determine the reasonably foreseeable consequences of deprivation; but it will not be necessary or appropriate for the Tribunal (at least in the usual case) to conduct a proleptic assessment of the likelihood of the appellant being lawfully removed from the United Kingdom; and

(b) any relevant assessment of proportionality is for the Tribunal to make, on the evidence before it (which may not be the same as the evidence considered by the Secretary of State).

(4) In determining proportionality, the Tribunal must pay due regard to the inherent weight that will normally lie on the Secretary of State’s side of the scales in the Article 8 balancing exercise, given the importance of maintaining the integrity of British nationality law in the face of attempts by individuals to subvert it by fraudulent conduct. 

(5) Any delay by the Secretary of State in making a decision under section 40(2) or (3) may be relevant to the question of whether that decision constitutes a disproportionate interference with Article 8 […] 

(6) If deprivation would not amount to a breach of section 6 of the 1998 Act, the Tribunal may allow the appeal only if it concludes that the Secretary of State has acted in a way in which no reasonable Secretary of State could have acted; has taken into account some irrelevant matter; has disregarded something which should have been given weight; has been guilty of some procedural impropriety; or has not complied with section 40(4) (which prevents the Secretary of State from making an order to deprive if she is satisfied that the order would make a person stateless). 

(7) In reaching its conclusions under (6) above, the Tribunal must have regard to the nature of the discretionary power in section 40(2) or (3) and the Secretary of State’s responsibility for deciding whether deprivation of citizenship is conducive to the public good.

Note in particular paragraph 4, which appears to function to point up the similarities between fraud and national security. Its origin is paragraph 110 of Hysaj (Deprivation of Citizenship: Delay) Albania [2020] UKUT 128 (IAC):

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. That deprivation will cause disruption in day-to-day life is a consequence of the appellant’s own actions and without more, such as the loss of rights previously enjoyed, cannot possibly tip the proportionality balance in favour of his retaining the benefits of citizenship that he fraudulently secured.

The paragraph was approved by Underhill LJ in Laci at paragraph 80, where he quoted the passage above and commented:

I respectfully agree with that passage, which is entirely in line with the overall approach to cases where an applicant has obtained British citizenship by fraud. But it is important to note the ‘without more’. Where there is something more (as, here, the Secretary of State’s prolonged and unexplained delay/inaction), the problems that may arise in the limbo period may properly carry weight in the overall assessment.

Significance of delay

In Ciceri, as in Laci, all eyes were on the delay.

Laci had confirmed the finding of Lord Justice Sales, with which the other judges agreed, in paragraph 26 of Aziz [2018] EWCA Civ 1884 that the reasonably foreseeable consequences of deprivation will not normally include removal — which would, if attempted, be the subject of a separate appeal in due course — and that there should be no “proleptic assessment” of the likelihood of removal. The panel in Ciceri agreed. Underhill LJ in Laci identified the adverse consequences of a deprivation decision that would be considered as statelessness, where applicable, and limbo.

In Laci the First-tier Tribunal judge had found that the public interest in depriving the appellant of citizenship was significantly reduced by the unexplained delay of nine years in taking action against him. This meant that Mr Laci had built up UK residence of some 20 years at the time. In a detailed and closely argued judgment, Underhill LJ restored the decision of the First-tier Tribunal judge who had allowed Mr Laci’s appeal, on the ground that the deprivation was a disproportionate interference with his rights under Article 8.  

Factors of particular relevance were the impact of loss of immigration status on the appellant’s ability to work “even if the limbo period turned out to be as short as UKVI’s letter suggested” (paragraph 70), and the “extraordinary” length of the delay in taking action, during which period the appellant believed that his representations against deprivation had been successful (paragraph 77).

In Ciceri the panel upheld the decision of the First-tier Tribunal judge to dismiss the appeal against deprivation. It found that “at most” four years and five months had elapsed between the British embassy in Tirana alerting the Secretary of State to the appellant’s use of a false name and his Kosovan, as opposed to Albanian, identity.

It is arguably of concern that consular offices at the embassy are for these purposes treated as a wholly separate entity to the Secretary of State.  The false name and Kosovan identity had first been revealed to the embassy in 2005, in the context of an immigration application by the appellant’s wife and again in 2013 in the context of an application by his mother. Nor is five years and four months a short period.

What should lawyers do with all this?

Firstly, reserve your position on whether Ciceri is correctly decided. If it does not go up for an appeal on the section 40(2) vs section 40(3) point, another case should do so.

Secondly, consider carefully whether statelessness arises in your case.

Thirdly, consider all the human rights and compassionate grounds implications of limbo. These will usually be Article 8 but not necessarily so.  Do not take at face value the assertions of the Secretary of State as to how long limbo will last: follow Laci. Your client may be faced with a lengthy appeal process, quite possibly going all the way to the Supreme Court to ask that court whether section 40(3) is to be treated in the same way as section 40(2). Some people may be at risk of a breach of their rights under, for example, Article 4, during this period if they are at risk of exploitation.  You can prefigure your arguments against removal in your explanations as to why your client cannot cut short the privations of limbo by making a voluntary departure.

Fourthly, consider with care the strength of your case against deprivation and whether, on the facts of your case, the deprivation appeal has poor prospects of success but any appeal against removal has strong prospects.

And finally, read closely the judgments of the higher courts referred to in this article. Much of what is in the Court of Appeal cases survives Begum and remains relevant, and there is much in Begum itself with which to work.

Alison Harvey is a barrister at No 5 chambers. She accepts both instructions from solicitors and direct access work. She regularly trains and lectures. She is Chair of Trustees at Kalayaan. She is a contributor to Fransman's British Nationality Law and to Macdonald's Immigration Law and Practice. A former General Secretary and then Legal Director of the Immigration Law Practitioners' Association, she has specialised in immigration, asylum, nationality, free movement and human rights for over 20 years, representing individuals and working on policy and legislation in both the the UK and overseas.

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