KV, R (On the Application Of) v Secretary of State for the Home Department, Court of Appeal - Civil Division, November 08, 2018,  EWCA Civ 2483
|Resolution Date:||November 08, 2018|
|Issuing Organization:||Civil Division|
|Actores:||KV, R (On the Application Of) v Secretary of State for the Home Department|
Neutral Citation Number:  EWCA Civ 2483
Case No: C5/2016/3001
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Gleeson
Royal Courts of Justice
Strand, London, WC2A 2LL
SIR GEOFFREY VOS, CHANCELLOR OF THE HIGH COURT
LORD JUSTICE LEGGATT
LORD JUSTICE HADDON-CAVE
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Hugh Southey QC and Amarjit Seehra (instructed by Barnes Harrild & Dyer Solicitors) for the Appellant
Gwion Lewis (instructed by the Government Legal Department) for the Respondent
Hearing date: 25 October 2018
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Lord Justice Leggatt:
When the Secretary of State makes an order under section 40(3) of the British Nationality Act 1981 to deprive a person of British citizenship on the ground that their naturalisation was obtained by fraud, the effect of the order may be to make the person stateless. This appeal raises questions about (1) the significance of this consequence and of the person's ability to become a national of another country for the exercise of the power and (2) who has the burden of proving the relevant facts.
The appellant was born in 1973 in Sri Lanka. In June 1994 he arrived in the United Kingdom from Sri Lanka and claimed asylum on arrival. In June 1996 his asylum claim was refused. He appealed against that decision and in November 1997 his appeal was allowed. In July 1998 the appellant was convicted of conspiracy to defraud and sentenced to 2½ years' imprisonment. Nonetheless, on the basis of his successful asylum appeal he was on 12 June 1999 recognised as a refugee and granted indefinite leave to remain in the UK. In March 2007 the appellant applied for British citizenship and his application was granted on 11 December 2007.
What the appellant did not disclose when he applied for British citizenship was that he had previously applied, first for indefinite leave to remain in the UK and then for British citizenship, using the name and date of birth of another individual of Sri Lankan origin. The first application, for indefinite leave to remain, was granted on 16 October 1999 and the second, for British citizenship, on 16 December 2003.
The Home Office subsequently discovered those facts and on 27 May 2015 sent two letters to the appellant. The first letter informed him that the grant of British citizenship made on 16 December 2003 was considered to be a nullity. That view is consistent with the law as confirmed by the Supreme Court in R (Hysaj) v Secretary of State for the Home Department  UKSC 82;  1 WLR 221, para 16, and has not been challenged by the appellant. The second letter gave notice under section 40(5) of the British Nationality Act 1981 of the Secretary of State's decision to make an order to deprive the appellant of his British citizenship granted on 11 December 2007 on the ground that, in his application, the appellant had deliberately concealed the fact that he had already obtained a grant of British citizenship using false details. The letter said that, had this information been known, his application would have been refused. The letter further stated that, once a deprivation order was made, the appellant would be granted discretionary leave to remain in the UK for 30 months.
The legal basis for deprivation of British citizenship
Section 40 of the British Nationality Act 1981 provides in relevant part as follows:
``(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--
(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.
The references in these provisions to ``citizenship status'' include a person's status as a British citizen: see subsection (1)(a). Section 40(5) requires the Secretary of State before making an order under section 40 to give the person concerned notice of (a) the decision, (b) the reasons for the order and (c) the person's right of appeal.
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)  UKUT 439 (IAC) and, more recently, BA (deprivation of citizenship: Appeals)  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  UKSC 60;  1 WLR 4799).
The First-tier Tribunal decision
On his appeal to the First-tier Tribunal (Immigration and Asylum Chamber) in the present case, the appellant raised four main arguments. These were: (1) that he had assumed a false identity ``under duress'' at a time when he faced being returned to Sri Lanka and in these circumstances the fact that he had previously applied for citizenship using this false identity should not be regarded as material; (2) that depriving him of his British citizenship would violate his right to respect for private life under article 8, in particular because it would result in the loss of his employment which required him to travel abroad; (3) that depriving the appellant of his citizenship would be inconsistent with the best interests of his children, a factor to which the Secretary of State was required to have regard by section 55 of the Borders, Immigration and Asylum Act 2009; and (4) that deprivation of British citizenship would have a disproportionate impact on the appellant and his family because it would make him stateless.
In support of the contention that he would be made stateless, the appellant relied on the text of the Ceylon Citizenship Act No. 18 of 1948, downloaded from an entry on that Act on Wikipedia. In particular, the appellant's solicitors in their written submissions drew attention to the provision in section 20(5) of that Act that: ``A person who is a citizen of Ceylon by descent shall cease to be a citizen of Ceylon if he voluntarily becomes a citizen of any other country''. Anticipating an argument that the appellant could apply to re-acquire Sri Lankan nationality, it was submitted that he cannot do so because he is a refugee who has been found to have a well-founded fear of persecution if he returns to Sri Lanka. Reliance was also placed on a witness statement made by a partner in the law firm representing the appellant. He gave evidence of a conversation with an official at the Sri Lankan Embassy in London who had confirmed that on becoming a British citizen the appellant will have lost his Sri Lankan nationality and would have to make an application if he wished to resume it.
On 16 September 2015 the First-tier Tribunal dismissed the appellant's appeal. In short, the tribunal found that the appellant had obtained naturalisation as a British citizen by means of fraud, false representation and/or concealment of a material fact; that in circumstances where the Secretary of State had said that the appellant would be granted discretionary leave to remain in the UK for 30 months, depriving him of citizenship would not interfere with his article 8 right to respect for his private life; and that proper account had been taken of the interests of the appellant's...
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