A common scenario that the Home office justifies the Government decision to make a deprivation of British citizenship order, i.e. taking away a person’s acquired British citizenship, is when the individual lies about their own nationality and/or makes false representations about their true identity. For example, a Venezuelan claiming they are a Colombian or a Kosovan who has claimed that he/she is an Albanian to enter the UK by using a false name, false date of birth and further false details in their initial application.
The Case of SD
In the case of SD, a national of Albania born on 3 December 1984. He entered the UK on 14 January 2001 as an unaccompanied asylum-seeking child and claimed asylum as a Kosovan the following day, aged 16. The Kosovo war lasted from 5 March 1998 to 11 June 1999. Hundreds of thousands of Kosovan Muslims were killed by the Serbs, and it has been classed as one of the greatest genocides to date of the 20th century.
At the time, SD provided the Home Office with a false name of SH and said he was a Kosovan national.
The application of SD for asylum was refused by the Home Office on 30 July 2001 as SD could not satisfy the Home Office that he had a well-founded fear of persecution in Kosovo. He was however granted exceptional leave to remain for a period of four years on the basis that he was an unaccompanied asylum-seeking child for whom there were inadequate reception arrangements in place in Kosovo.
Application for ILR
On 21 July 2005 SD now an adult aged 20 applied for indefinite leave to remain in the UK in his false name and nationality, having completed four years exceptional leave to remain. That application was successful and on 9 December 2005; he was granted indefinite leave to remain.
First Application for naturalisation
On 14 December 2006 SD applied for naturalisation as a British citizen under his false name and nationality as Kosovan declaring in his application that all the information in his said application was true. The application was however refused by the Home Office on 9 January 2007 on the grounds of good character; ST was sentenced to a financial penalty by Greenwich Magistrates Court on 29 March 2006 for a single offence of possession of an offensive weapon in a public place. He was advised by the Home Office that he would be eligible to reapply after 29 March 2008.
Second application for naturalisation
In accordance with the above advice, SD submitted a second application for naturalisation as a British citizen on 28 April 2008 in his false identity. He was at that time 24 years of age. Again, he stated that he had written in his said application was true. That application was refused again on good character grounds on 31 July 2008 following a change in the Home Office policy.
Third application for naturalisation
On 28 April 2011 SD submitted a further application for naturalisation in his false identity. This application was successful and on 8 August 2011 he was issued with a certificate of naturalisation as a British citizen pursuant to section 6(i) of the British nationality Act 1981. His certificate of naturalisation as a British passport was issued under his incorrect identity of SH, a Kosovan.
SD told the Home Office that he was only a child at that time when he had claimed asylum, and had received advice from those in the refugee community when he first came to this country who told him to say he was from Kosovo and had been persecuted in the war in Kosovo as had his family and he had fled for his life.
SD now remorseful that he had lied
On appeal against a decision to deprive him of his British nationality, SD said that he now realised the significance of his mistake for which he was extremely remorseful. This realisation came about after he had applied to the passport office for a change of his name from SH to SD. After an investigation by the Home Office and upon further enquiries a conclusion had been reached that SD had misled the Home Office into believing that he was a Kosovan whereas, in fact, he was Albanian.
SD admitted on appeal that he knew he was not telling the truth on the applications he made as an adult but did not want to rock the boat.
SD said although he was an adult when he applied for indefinite leave to remain and thereafter for naturalisation as a British citizen, and knew he was not telling the truth on the application forms he was completing as regards his identity, he did not want to ‘rock the boat ‘, as if he had told the truth and said he had previously lied, he could have been stripped of his British nationally and previous ILR and be removed to Albania.
After SD obtained his British nationality and successfully applied for a British passport, there came a time when he felt uncomfortable with his false name of SH and therefore applied to the passport office changes the name back to his real name of SD. This led the passport office on a line of enquiry from the appellant result of which was that it was soon ascertained he had lied in regard to his identity and nationality, the upshot of which was that he was served with a decision to deprive him of his British citizenship under section 40(3) of the British nationality act 1981. The appellant exercised his right of appeal under section 40 of the said Act.
Arguments on appeal by the Home office
The Home Office conceded that SD had been granted exceptional leave to remain on the basis that he was a minor from Kosovo for whom there were inadequate reception arrangements in Kosovo. They went on to say that they knew he was from Albania however and he could potentially be reunited with his family. They accepted that whilst SD was a minor he could not be blamed for the false representations that were made at that time, but once it became an adult he continued with this force representations instead of coming clean with the government and putting forward compassionate circumstances as to why he had used a false identity originally and that now that he was an adult he knew it was wrong to continue with that identity and was being honest credible in asking the Home Office to exercise discretion in his favour and allow him to maintain his British citizenship, in the same way as when in similar circumstances British citizenship is revoked by those who are adults but who have minor children born in this country who have consequently obtained British citizenship by descent of their parent, whilst their parent might have the citizenship revoked the children do not as a result of Home Office policy as they are the innocent parties to the fraud.
The Home Office argued that the SD had no minor children, and he was an adult at the time when he continued with the fraud and admitted he knew it was wrong to do so but felt he had no option but to continue with the lie as it was in his mind no going back on his previous evidence.
Arguments made on the SDs behalf
SD’s solicitors argued that the intention to deprive was unlawful because under section 40 (3) of the 1981 Act: –
- the Home Office conclusion that SD had obtained citizenship by means of fraud was incorrect;
- further or alternatively the Home office (in effect the Government), ought to have exercised the discretion conferred by section 40 of the British nationality Act 1981 differently.
Was the fraud material to the grant of citizenship?
The tribunal was invited to find that the use of fraud was not material to SDs acquisition of British citizenship. Section 40 (3) of the British nationality Act 1981 states as follows the Secretary of State may by order deprive a person of a citizenship status which results from his registration of naturalisation if satisfied that the registration/ naturalisation was obtained by means of: –
(a) fraud
(b) false representation, or
© concealment of a material fact.
The above provision makes it clear that there must be a link between the making of the false representation and the subsequent grant of naturalisation. This was confirmed by the upper tribunal in Sleiman (deprivation of citizenship; conduct) [2017] UK UTD 36 (IAC), in which the tribunal held that in an appeal against a decision to deprive a person of a citizenship status, in assessing whether the appellant obtained registration or naturalisation by means of fraud, false representation or concealment of a material fact, the impugned behaviour must be directly material to the decision to grant citizenship.
The deception in the above case was to mislead the authorities about age on arrival in the UK. The appellant claimed to be younger than he was and this caused him a direct benefit because he was granted a short period of limited leave to remain on this basis even though his asylum claim was refused. He, therefore, had lawful stay in the UK. However, there was no link between the deception and the grant of naturalisation in that case.
In Pirzada (Deprivation of citizenship general principles Afghanistan) [2017] UK UTD 196 (IAC) the upper tribunal stated at paragraph 16; in order for the power under section 40 (3) to be exercised, there must be an identifiable deception, of the sort listed in that subsection, which can be shown or properly assumed to have been operational in the grant of naturalisation.
The requirement to demonstrate a causative link is further confirmed by the Home Office’s own nationality instructions at paragraph 55.7.3.
Whether discretion should have been exercised differently
It was argued by SD’s solicitors that if which was not accepted by them, those false representations were material to the acquisition of British citizenship, the discretion afforded by section 40 (3), of the British nationality Act 1981 should have been exercised by the Home Office in SD’s favour.
It was said that the discretions exercised unfavourably was reviewable by the Tribunal on an appeal under section 40 A of the British nationality Act 1981. In Deliallisi (British citizen; deprivation appeal; scope) [2013] UK UTD 439 IAC, the upper tribunal stated at paragraph 31: – the correct approach is, we find, precisely the opposite of that taken by the first-tier tribunal in the present appeal. If the legislature confers a right of appeal against a decision, then in the absence of express wording limiting the nature of that appeal, it should be treated as requiring the appellate body to exercise afresh any judgement or discretion employed in reaching the decision against which the appeal is brought
the above approach was confirmed by the upper tribunal in BA (deprivation of citizenship appeals) [2018]UK UTD 85 IAC at paragraph 9.
It was argued that at least three factors are relevant to the exercise of discretion in accordance with section 40 (3); first, the circumstances in which the appellant made the false representation; and second the impact of the appellant’s loss of British citizenship; and thirdly extent of any public interest in making a deprivation order.
Circumstances surrounding the use of force representation;
It was accepted that when SD applied for indefinite leave to remain on 20 July 2005 he continued to use his incorrect identity. However, he explained that he was sorry and that this happened because all of his Home Office papers had been issued in his assumed identity of SH and this was something that he continued to use. He said he just could not at that late stage unravel everything and tell the Home Office that he had been lying. He did not want to rock the boat.
Although the appellant was just 20 years of age at the time of his application for indefinite leave to remain and in the light of paragraph Chapter 55 of the Home office nationality instructions, he may be regarded as complicit in the concealment of a material fact, the SD it was alleged was still very young and failed to fully appreciate the significance of his actions. The Home Office did not accept that argument.
SD it was said now understood the seriousness of his actions and in respect of the respondent’s letter of 29 March 2019, he made a full and frank admission as to his use of a different surname and nationality.
Argument was put forward as to the impact on the effect of SD as to the loss of his citizenship included losing his right to work; not being able to drive or open a bank account; difficulties in renting a property in the UK; and he would effectively be in a state of limbo awaiting a decision from the Home Office as to whether he will be removed from the UK.
SD also owned two properties in the UK. Whilst both properties are subject to an existing mortgage, one of them is subject to a buy to let agreement. He is currently renting the property. In the event that he loses his right to work, he did not have sufficient savings to sustain himself. As such he would be unable to keep up the mortgage repayments on both properties with the result that these will either have to be sold or repossessed. Consequently, his tenants will be forced to vacate their home.
The tribunal was made aware of the case of BA [ 2018] where the upper tribunal had noted that significant weight should be given to the Home Office’s assessment of whether a person should be deprived of their citizenship. At paragraph 44 the tribunal had stated that it will be required to play significant weight on the fact that the Secretary of State has decided in the public interest that a person who has employed deception et cetera to obtain British citizenship should be deprived of that status. Where statelessness is not in issue, it is likely to be one in a rare case that the EC HR or some very compelling feature will require the tribunal to allow the appeal.
While significant weight ought to be afforded to the Home office assessment of public interest, the tribunal was invited to note the circumstances in which the force representations were made and also to the fact that the appellant made a full and frank admission to the respondent as to the use of his false representation.
For these reasons the tribunal was invited to find the discretion afforded by section 140 (3) should be exercised in the appellant’s favour and that he be permitted to retain his citizenship.
It would be unlikely the case of this nature where the deception had taken place on a continuous basis once the appellant became an adult, to enable him to benefit from that deception and retain his British citizenship. As the court indicated in the case of BA above, it is only in very rare cases that a human rights article 8 claim could be successful or that some other very compelling feature would enable the tribunal to allow the appeal.
Could article 8 of the ECHR based on family/private life had been argued?
The appellant had been in this country for some 18 years. The Home Office stated that a deprivation order would be made within four weeks of the appellant becoming appeal rights exhausted in relation to the decision to make a deprivation order, and at that stage, he would fall under the immigration rules once more. Subject to any further representations at that stage in regard to which SD would receive a further decision to either grant leave to remain or remove the appellant from the UK within 8 weeks of the deprivation order being made.
Besides being subject to immigration control, the appellant would not have the right to work and assuming that the Home Office was mindful to refuse any human rights claim made by the appellant he would then have a right of appeal to pursue that claim under section 82 of the 2000 and to act.
The above approach was endorsed by the Court of Appeal in Aziz and others the Secretary of State for the Home Department 2018 EW CA C IV 1884, whereby sales LJ held that whilst regard should be had to the reasonable foreseeable consequences of deprivation of citizenship, it is unnecessary for the first tribunal to conduct a proleptic analysis of whether the individual concerned would likely be deported or removed at a later stage.
By reason of the appellant’s lengthy residence in the UK which is approaching 19 years and the nature and quality of the ties that he had established in the UK, it was submitted by SD that the appellant had a strong private and family life claim under article 8 and applying AB to the appellant’s removal, this being issues of article 8 is the family and private life, it was unlikely to be reasonably foreseeable consequence of the respondent’s decision to remove.
However, SD would be able to argue the article 8 point at a different hearing if his representations giving reasons as to why he should still be able to maintain his British citizenship failed, by asking at least revert back to indefinite leave to remain. Whether SD would get indefinite leave to remain or limited leave, for example under the 20-year rule have regard to all the circumstances, be a matter for the tribunal in the future hearing.
Conclusions
Effectively, therefore, SD has the burden of proof to persuade the deciding authority that they should be granted permission to stay in the UK. In the scenario of the above facts, SD would fail to convince a tribunal that he should be able to retain his British citizenship notwithstanding that it was obtained as admitted by him, by fraud. Following further representations as to why SD should be able to remain in the UK nevertheless on human rights grounds and revert back to his ILR status, these will be considerations between ST and his solicitors in the form of further representations. An appeal would lay in any refusal under section 82(i) of the Nationality Immigration and Asylum Act 2002 which will then be a purely human rights appeal where the Tribunal shall have a wide discretion within the parameters of decided case law as to how the article 8 claim should be interpreted.
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