United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: DC/00145/2019

 

THE IMMIGRATION ACTS

 

Heard at Field House	Decision & Reasons Promulgated
On 8 September 2021	On 28 September 2021

 

Before

UPPER TRIBUNAL JUDGE McWILLIAM

 

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

YASSIN MOHAMMED HUSSEINI

(ANONYMITY DIRECTION NOT MADE)

Respondent

 

Representation :

For the Appellant/Secretary of State for the Home Department: Mr D. Clarke, Home Office Presenting Officer

For the Respondent: Mr M Iqbal, Counsel instructed by Hamilton Rees Solicitors

 

DECISION AND REASONS

1.              I shall refer to the Respondent as the Appellant as he was before the First-tier Tribunal.

2.              The Appellant's appeal against the decision of the SSHD on 9 October 2019 to make an order depriving him of British citizenship pursuant to Section 40 of British Nationality Act 1981 was allowed by Judge of the First-tier Tribunal A P Higgins in a determination that was promulgated on 21 April 2021. The SSHD was granted permission to appeal by First-tier Tribunal Judge Saffer on 14 May 2021. The matter came before me on 8 September 2021 to determine whether the judge made an error of law when allowing the Appellant's appeal.

3.              The Appellant first entered the UK on 28 September 2006 when he was aged 16. He made an asylum claim. He said he was a citizen of Iran. The application was refused. He was granted discretionary leave (DL) on account of him being an unaccompanied minor. On 27 March 2008 he applied for an extension of DL. He was granted indefinite leave to remain (ILR) on 18 August 2010 based on the length of time in the UK. He made an application for naturalisation as a British citizen on 13 September 2011. His application was approved and he became a British citizen on 29 November 2011.

4.              The SSHD's case is that the Appellant submitted documents in support his son's passport application to Her Majesty's Postal Office (HMPO) in 2014 which indicated that he, the Appellant was born in Erbil, Iraq, while he had maintained in his previous dealings with the SSHD that he had been born in Iran and British citizenship had been granted on that basis. HMPO referred the case to the SSHD. In response to the correspondence (an investigation letter of 25 September 2019) from the SSHD following the application to HMPO, the Appellant submitted further evidence which the SSHD considered to be fraudulent.

5.              The Appellant at the hearing before the First-tier Tribunal relied on the evidence in his witness statement which is in a nutshell that he had paid for a false Iraqi residence card which he submitted to HMPO. He had applied for this because he did not want to disclose his Iranian nationality to his Iraqi father-in-law. However he maintains that he is a citizen of Iran.

The decision of the First-tier Tribunal

6.              The judge recorded that the Appellant's barrister, Mr Iqbal conceded that the SSHD had discharged the evidential burden on her and that there is a case for the Appellant to answer. The judge took into account that the Appellant had not produced any documentary evidence in support of his claim to have been born in Iran. He found that it was "difficult to understand" why the Appellant would not have explored the possibility of approaching the Iranian authorities or the Red Cross in relation to contacting his family. The judge also took into account the manner in which the Appellant chose to respond to the Secretary of State's letter informing him that she was considering deprivation of citizenship. He found that the Appellant instead chose to "obfuscate". However the judge went on to make the following findings:-

"35. That said, there is considerable force in Mr Iqbal's response to the Respondent's suggestion in her decision that documents he had submitted may not have been authentic. If the Appellant had lied about his place of birth and his nationality from 2006 until 2011, and in the application for a passport he subsequently made on his son's behalf, he is unlikely to have submitted false documents in support of it which undermined his claims. Secondly, the Respondent's suggestion that he might have tampered with the extract from the civil record he enclosed with his letter of 11 November 2019 by removing it. References to him and his wife is, I agree with Mr Iqbal, unfounded. The extract from the civil record the Appellant enclosed with his letter of 11 November 2019 predated the extract he had already submitted in support of his son's passport application, and the extract he had submitted in support of the passport application included an endorsement (at paragraph 10 above) explaining that the civil record had been rectified to include details of Ishmael's parents which had previously been lacking

"36. The terms of the rectification of the civil record noted in the second extract issued on 30 June 2016 affords considerable support to the Appellant's claims not to have been born in Iraq and to have procured his registration as an Iraqi citizen corruptly in 2014. Whereas his wife's registration had been affected on 12 April 1984 on the basis of a birth certificate issued within weeks of her birth on 20 March 1984, his registration was not affected until 15 June 2014, and the basis of his registration was not a birth certificate issued to him, but the birth certificate issued to his wife in 1984.

37. Also consistent with the Appellant's claim not to have been born in Iraq is the reference to his nationality being Iranian in the record of Ishmael's birt (sic) signed by a physician and dated 14 October 2015 to which I referred at paragraph 9(c), and the reference in Ishmael's birth certificate issued the same day, to which I referred at paragraph 9(d), to the Appellant's nationality being British rather than Iraqi.

38. His claims are lent further support by the fact that he chose in 2018, before learning in 2019 the Respondent was considering depriving him of his British citizenship, to pay for a residence card rather than simply rely on the Iraqi identity card issued to him four years previously. His explanation that he chose to spend a substantial sum of money on a residence card because he was conscious the identity card had been obtained by bribery, and to have relied on hit (sic) might have led its lack of legitimacy to come to light, is at least plausible.

39. He was a credible witness. He has provided an explanation for why he chose to procure an Iraqi identity card in 2014 which incorrectly stated his place of birth. His explanation is coherent. More importantly, it is supported by documentation with which he provided the Respondent in the respects I have identified. I accept his obfuscation in the letter of 11 November 2019 reflected his panic at the prospect of being deprived of British citizenship to which he and his son were entitled, as well as a reluctance to admit that his Iraqi identity card had been dishonestly procured. The misgivings I identified paragraphs 33 and 34 notwithstanding, the Respondent has failed to satisfy me that the Appellant was not born in Iran as he is consistently claimed (sic); and since I am not satisfied his British citizenship was, more likely than not, obtained by fraud, I allow his appeal".

The Grounds of Appeal

7.              The Secretary of State's grounds of appeal contain one ground asserting mistake of fact/inadequate reasons and perversity.

8.              The grounds specifically challenge the first part of [35]. It is stated in the grounds that the SSHD has never suggested that the documents submitted to HMPO were not authentic. On the contrary the investigation letter sent to the Appellant on 25 September 2019 confirms that the Appellant had supplied documents which showed that he was born in Erbil, Iraq.

9.              It was the documents that the Appellant sent in response to that letter which were said to be false and the representation that he was from Iran. The error undermines the First-tier Tribunal Judge's understanding of the evidence and the assessment of credibility, particularly when considered in the light of the other adverse findings.

10.          The grounds also challenge the finding of the judge relating to the extract from the civil record. Mr Clarke did not pursue this in oral submissions.

11.          In oral submissions Mr Clarke drew my attention the to documents that the Appellant submitted in his application to HMPO which indicated that he was born in Erbil. It is these documents that disclosed that the Appellant had committed a fraud when claiming to be from Iran. The Appellant committed a second fraud when submitting further documents, but Mr Clarke did not pursue the grounds in so far as the reasoning relating to these documents is concerned.

The Appellant's submissions

12.          The Appellant asserts that the grounds are misconceived because they are based on a misreading of the relevant documents.

 

13.          Mr Iqbal made extensive oral submissions. He helpfully took me through the documents that had been submitted with the application to HMPO and those in response to the letter from the Home Office of 25 September 2019. He said that there were two limbs to the SSHD's case. The first limb concerns two of the documents that the Appellant submitted to HMPO indicating that he was born in Erbil. He said that the judge accepted the Appellant's evidence about this, having found that him credible; namely that he had paid a bribe to obtain a fraudulent document and the reasons the Appellant gave for this. The SSHD accepted that they are authentic. This is accepted in the grounds of appeal. Therefore, the first reason for revocation of British citizenship falls away. Any challenge to the findings of the judge in respect of what Mr Iqbal categorised as the first limb of the SSHD's case must fail. He cannot have committed a deception or fraud because the SSHD accepts the documents as authentic. Moreover, there is no challenge to the findings in respect of the first aspect of the SSHD's case in the grounds of appeal. Mr Iqbal drew my attention to documents that the Appellant submitted to HMPO which indicated that his nationality was Iranian or British. Only two of the documents said that he was born in Erbil and the Appellant explained the evidence about why this came about, which was accepted by the judge.

 

14.          According to Mr Iqbal, the second limb of the SSHD's case concerns the documents that the Appellant submitted to the SSHD in response to the letter of 25 September. The judge found in favour of the Appellant in this respect (see the second part of paragraph 35 which is not set out in the grounds). Bearing in mind the SSHD does not now challenge the judge's findings on the second limb and that according to Mr Iqbal this is the sole ground of appeal in the written grounds, the SSHD's application must fail.

 

15.          Mr Clarke disagreed with Mr Iqbal's interpretation of his grounds of appeal. He said expressly what is challenged is the judge's finding in the first part of [35] which does not make sense. This undermines the assessment of credibility generally.

Error of law

16.          Mr Iqbal's categorisation of the case into two separate limbs is misleading and wrong. The fraud alleged is that the Appellant lied about his citizenship in 2006 and in subsequent dealings with the SSHD because the documents he submitted to HMPO indicated he was Iraqi and not from Iran. The argument that because the SSHD's case is that the documents submitted to HMPO representing the Appellant's place of birth as Erbil are authentic (although the Appellant's own evidence is that they are fraudulent), the first limb of the SSHD's case cannot succeed is wholly untenable. The argument ignores that the case concerns deprivation of citizenship and whether the Appellant lied about his nationality in 2006.

 

17.          The grounds challenge the assessment of credibility focusing on [35]. The first task for the judge was to assess whether the Appellant had lied about his nationality in his dealings with SSHD. The judge took into account that he had obfuscated by purporting to submit copies of the documents he sent to HMPO to the SSHD. He then blamed the Iraqi authorities for having made a mistake. He then changed his account in his witness statement on 4 April (the hearing was on 15 April). His evidence in that statement and at the hearing was that he had obtained the false documents which he submitted to HMPO indicating that he was born in Iraq by way of a bribe. He did this as a result of family pressure. There was no evidence to support his account. He did not produce evidence from Iran despite having indicated to the SSHD had such evidence existed. However, the judge accepted the Appellant's account. This was a decision open to the judge; subject to adequate reasons. Moreover, the parties must be able to understand the decision.

 

18.          The judge gave a number of reasons for accepting the Appellant's account. The first of which is at [35] as set out in the SSHD's grounds. He found that there was "considerable force" in Mr Iqbal's suggestion. He does not identify the suggestion, but it can be reasonably inferred to relate to the second sentence of [35], "If the Appellant had lied about his place of birth and his nationality from 2006 until 2011, and in the application for a passport he subsequently made on his son's behalf, he is unlikely to have submitted false documents in support of which undermined his claims." The second sentence is baffling. Neither representative was able to explain to me what it means or what was intended by the judge. If what is meant is that the Appellant is unlikely to have submitted false documents, if he had lied about his nationality in 2006 and in the passport application because this would undermine his claim to be from Iran, the reasoning is perverse. On the Appellant's own account he submitted false documents albeit he claims the false documents were submitted to HMPO and not the Home Office. The Appellant's own evidence is that in the application for a passport he submitted documents that did not represent the truth, and which therefore potentially undermined his claim to be a citizen of Iran. The judge's finding does not make sense in the context of the Respondent's case and the Appellant's evidence. The finding is perverse.

 

19.          I note that the sentence almost echoes what is at [5] of the grounds of appeal before the judge and in which it is questioned why the Appellant would submit false documents that undermined his claim to be from Iran. However, the grounds were drafted on the basis that the documents were erroneously issued by the Iraqi authorities. However, the Appellant's evidence had changed at the hearing and the case was argued differently before the First-tier Tribunal.

 

20.          While the judge found that the civil record had not been tampered with (and there is no discrete challenge to this finding pursued by Mr Clarke) and I take into account Mr Iqbal's submission that the some documents submitted to HMPO supported the Appellant being British/Iranian, the reasons given for the judge having found the Appellant credible are undermined by the error identified above. I have taken into account that the judge made a number of positive findings that are not challenged to support his overall conclusion that the Appellant is credible; however, I find the error material.

 

21.          I am mindful that an appellate court should be cautious when interfering with credibility findings of a lower court. I have taken into account what the Court of Appeal recently stated in Lowe v Secretary of State for the Home Department [2021] EWCA Civ 62. However, I am unable to state with certainty that had the judge not "found considerable force" in an argument which cannot be understood and/or discloses perverse reasoning, he would have reached the same conclusion.

 

22.          I set aside the decision of the judge. The matter will need to be heard afresh applying Begum [2021] UKSC 7. I agreed with the parties that the appeal should be remitted to the First-tier Tribunal for a fresh hearing.

 

Notice of Decision

The decision of the First-tier Tribunal is set aside

The appeal is remitted to the First-tier Tribunal.

 

No anonymity direction is made.

 

 

Signed Joanna McWilliam Date 13 September 2021

Upper Tribunal Judge McWilliam