LD001002022

I am satisfied that the Respondent was entitled to exercise her discretion to deprive the Appellant of her British citizenship.'

The appellant applied for permission to appeal to the Upper Tribunal on the following grounds:

It is necessary to understand the two elements that the judge needed to consider in this appeal. First, an assessment of whether the condition precedent contained in section 40(3) BNA 1981 was satisfied. Second, whether human rights issues were engaged by the decision, and if so, whether the decision was unlawful with reference to section 6 HRA 1998.

Ms Everrett sensibly acknowledged that there was some difficulty in the judge's approach to the second of these questions but argued that any error was not material because the judge made clear that he would have come to the same decision as the Secretary of State.

However, one can see from the First-tier Tribunal's findings set out above that the section in which he made the finding that his decision would have been the same as the Secretary of State, and for the same reasons, related to the first issue regarding the condition precedent in section 40(3) i.e. whether naturalisation was obtained by means of fraud, false representation, or concealment of a material fact.

Mr Malik launched an argument based on a single line in the Court of Appeal decision in SSHD v P3 [2021] EWCA Civ 1642 ; [2022] INLR 88 at [114], which stated that ' Begum is authority for the proposition that, broadly, SIAC should take a public law approach to challenges to the Secretary of State's assessment of national security. It is not authority for any wider proposition.'. This, he argued, narrowed the application of Begum to SIAC cases and superseded the Upper Tribunal's reliance on the decision in Ciceri . He argued that, in light of P3 the judge should have considered the condition precedent question for himself.

For the reasons given below, I have found that the First-tier Tribunal decision involved the making of a material error of law. As a result, it is not a proportionate use of court time to go into the argument put forward by Mr Malik in any detail. I was also told that the Court of Appeal will soon be considering these issues in another case. However, I will make the following observations.

First, the arguments relating to what was said in P3 do not appear to have been ventilated before the First-tier Tribunal and did not form any part of the written legal arguments even though the decision was available at the date of the First-tier Tribunal hearing.

Second, the decision in P3 was focussed on the question of whether SIAC took the right approach in an appeal against an entry clearance decision brought on human rights grounds following a decision to deprive that appellant of citizenship under section 40(2) while he was outside the UK. Begum focussed on the broad approach to an appeal relating to a decision taken under section 40(2) and was not directly concerned with human rights issues save for general observations made at [69], [71] and [120]. In P3 the court was concerned with arguments relating to the scope of SIAC's role when assessing what weight should be placed on national security issues when considering them in the context of human rights issues (as opposed to the non-human rights context in Begum ). On my reading of the decision, all that Lady Justice Laing was emphasising at [114] was that Begum impressed the need to take a broadly public law approach to the Secretary of State's assessment of national security issues. The decision in P3 is confined to the specific issues before it relating to the scope of a SIAC appeal and in light of its particular procedures. The court was not considering whether Begum might have a wider application in non-certified appeals brought in the First-tier Tribunal. For this reason, I do not consider that the brief observation made in P3 in any way undermines or supersedes what was said in Ciceri .

Third, while I accept that the Upper Tribunal in Ciceri did not provide a specific explanation as to why the principles outlined in Begum were equally applicable to a decision made under section 40(3), it is apparent from the face of the decision in Begum as to why the principles apply equally to a decision taken under section 40(2) (conducive to the public good) and to a decision made under section 40(3) (fraud).

Whether an appeal against deprivation of citizenship is heard in SIAC or in the First-tier Tribunal the underlying powers to deprive a person of citizenship with reference to sections 40(2) and 40(3) are the same. The rationale of the Supreme Court's decision in Begum was drawn largely from the case of SSHD v Rehman [2001] UKHL 47 ; [2003] 1 AC 153 and the wording of the statutory provisions contained in the BNA 1981. The Supreme Court emphasised that the wording of section 40(2) focussed on the exercise of discretion by the Secretary of State (illustrated by the wording 'the Secretary of State may...')[66]. The condition precedent was not that 'SIAC is satisfied', but that 'the Secretary of State is satisfied' that deprivation is conducive to the public good [67]. The discussion in the paragraphs immediately preceding the guidance explain why the Supreme Court came to the conclusion it did at [71].

Similar wording is used in section 40(3), which sets out the condition precedent that 'the Secretary of State is satisfied' that naturalisation was obtained by fraud. For this reason, the same principles considered in Begum in relation to section 40(2) are also likely to apply to decisions made under section 40(3). Although [1] of the headnote in Ciceri did not elaborate on why the same principles applied to decisions made under section 40(3), it is obvious from the decision in Begum as to why the same principles are likely to apply.

It should be apparent from that analysis that the First-tier Tribunal judge did not err in considering the question of the condition precedent by way of a 'review' approach. This is consistent with the decisions in Begum and Ciceri , which outline the current position of the law in this area.

However, when one turns to consider the findings made in relation to the human rights arguments raised in the appeal it is clear from what is said at [30] and [36] that the judge adopted the same 'review' approach. He accepted that the impact on the appellant's right to private life was sufficiently grave to engage the operation of Article 8 of the European Convention [36]. Having considered what the second decision letter said about the delay in taking deprivation action, he went on to find that 'the Respondent was entitled to reach a decision that such interference would be justified and proportionate'. This is the wording of review. Nowhere in section (c) of the decision does the judge appear to conduct his own evaluation. Unlike the comments made at [29] in relation to the condition precedent issue, the judge does not indicate what his own conclusion might be on the question of proportionality. This is contrary to the guidance given in both Begum and Ciceri .

Even taking into account the judge's direction to the 'inherent weight that will normally lie on the Secretary of State's side' it is not possible to conclude that the decision inevitably would have been the same if he had decided the issue for himself. For this reason, I find that the error was capable of making a material difference to the outcome of the appeal. In light of this finding, the other criticisms made about inconsistent findings do not need to be determined.

For the reasons given above, I conclude that the First-tier Tribunal decision involved the making of an error on a point of law.

I have considered the best way to dispose of the appeal before the Upper Tribunal. On the one hand I have found that there was no error of law in the judge's consideration of the condition precedent issue, but I have found a material error of law in the judge's approach to the human rights issues raised. Bearing in mind that the courts have repeatedly cautioned against a proleptic assessment of human rights issues in cases where removal is not yet an issue, Mr Malik made clear that the main human rights issue in this appeal is the proportionality of deprivation action following many years of delay.

Although it was argued, but not determined by the First-tier Tribunal, the issue of delay arguably is also relevant to the rationality of the decision on Wednesbury grounds. Although the two main elements of the appeal will need to be considered in different ways, the impact of the delay will need to be considered with reference to the evidence as a whole. For these reasons, I consider that it is appropriate to set aside the whole decision and for the appeal to be remitted to the First-tier Tribunal for a fresh hearing.

February 2023