By Yang Peng
In an important recent case, the Court of Appeal announced that the appellant A’s appeal in the case of Shyti v Secretary of State for the Home Department (SSHD) against the decision to deprive him of his British Nationality, was dismissed.
This article looks at the circumstances in which citizenship deprivation can occur following the granting of citizenship as a result of deception, as well as the correct procedure for courts to follow in such situations.
Keep reading to find out more.
Background
A was a national of Albania and had arrived in 1999 but falsely claimed asylum as a national of Kosovo. A’s asylum claim was refused but he was eventually granted indefinite leave (ILR) in 2010 under the Legacy Programme. He was later granted British citizenship in June 2013. On 4 March 2020, SSHD notified A of her decision to deprive him of his British Nationality in a fully reasoned letter (‘the Decision’) which was made after identity checks revealed that A was an Albanian national with a different name.
Deprivation of citizenship pursuant to S.40(3) British Nationality Act 1981 was made on the basis that A had obtained citizenship by means of fraud, concealment or false representation of a material fact.
A appealed against the Decision to the First-tier Tribunal (F-tT), which was allowed. The argument that the applicant would have been removed to Albania had his true identity been known was speculative. The deception had only an indirect bearing on the granting of ILR as the latter was based on long residence and the Legacy Programme.
The SSHD then appealed to the Upper Tribunal (UT). The UT held that there was an error of law in the F-TT’s determination and remitted the appeal to the F-tT for a new hearing. A would not have been granted ILR or citizenship had the SSHD been aware of the original fraud as to nationality. The grant of ILR was directly linked to the belief that the applicant was a national of Kosovo. ILR would not have been granted if the applicant was believed to be from Albania, resulting in their potential return.
This appeal was made by A against the determination of the UT.
Shyti v Secretary of State for the Home Department (SSHD)
This case discussed ground (i) regarding whether it was open to the UT to have found that the F-TT erred in law; and ground (ii) regarding whether they had taken the correct legal approach to the appeals in cases such as that.
The court held that the only live question on the appeal was the question raised by ground (i), and they chose to decline to decide ground (ii) to avoid introducing legal uncertainty.
The court dismissed the following in relation to ground (i) presented by the appellant:
- The Sleiman case (deprivation of citizenship: conduct) [2017] UKUT 00367(IAC), which A referenced to argue that the deception was not directly material to the grant of citizenship, was not decisive and the approach in that case cannot be generalised to the facts of this case. The distinction can be made on the grounds given in the SSHD’s notice of appeal to the UT, as elaborated by the Respondent. The Decision relied on several distinct examples of ‘fraud’ which are not forensic details but different and independent reasons justifying the Decision.
The F-tT had to consider the reasoning in the Decision as a whole and erred in law in not doing so. Every point in the Decision addressed the same legal issue: the appellant’s credibility. However, the presenting officer (HOPO) at the F-tT didn’t do a competent job to cross-examine the appellant on every single adverse point taken in the refusal letter.
The above is a summary of the court’s judgement on ground (i) presented.
The above discussion has focused mainly on the legality of court proceedings rather than the legality of the grant of the appellant’s citizenship. The decision also sent a message that relying solely on legal precedents to conclude that deception doesn’t directly affect the granting of citizenship is not a viable approach. Decision letters are based on various grounds, and when the reasoning in a decision letter consists of distinct and independent justifications for the decision, the court should consider the letter as a whole.
Our comments
The findings in Shyti v SSHD show that while it may not directly recognize the extent to which deception has affected the grant of citizenship, it substantiates the procedural requirement for courts to consider the reasoning in decisions as a whole.
The judgment emphasizes the UK’s firm stance against deception in granting citizenship and provides guidance for similar migration cases.
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