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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-000439
	First-tier Tribunal No: DC /50155/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 18 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE RIMINGTON

DEPUTY UPPER TRIBUNAL JUDGE M BUTLER

 

Between

 

MR SQM

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Karnik, instructed by Primus Solicitors Ltd

For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

 

Heard at Field House on 29 ^th November 2024

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court .

 

1.       The Appellant is an Iraqi national and was naturalised as a British Citizen on 13th August 2010. He appeals the determination of 21st September 2023 of FTTJ Austin who dismissed the appellant's appeal against the decision of the Secretary of State dated 15th July 2022 that she intended to deprive the appellant of his British nationality pursuant to s40(3) BNA 1981 on the grounds that he obtained British nationality fraudulently, in particular as to his place of birth.

 

2.       The Appellant says he was born in Makmour (a government-controlled area) and so there was no deception, a fact confirmed by identity documentation provided by the Iraqi central registry and confirmed and validated by the Iraqi Embassy in the UK, after the SSHD's deprivation decision was made. Consequently, it was asserted that the SSHD's decision is founded upon a fundamental mistake of fact not addressed by the Secretary of State and erroneously glossed over by the FTT.

 

Grounds for permission to appeal

 

3.       The Appellant applied for permission which was initially refused by the FtT. The renewed grounds of appeal to the Upper Tribunal stated the following:

 

'Attached to these grounds are extracts from MyHMCTS showing relevant

applications and decisions. These include the one taken on 18th January 2023 by the Resident Judge deciding that the Appellant cannot give oral evidence from Iraq, and yet made no direction to require the SSHD to apply best endeavours to permit the Appellant to return to the UK notwithstanding:

i. the requests specifically made in the ASA and applications to

MyHMCTS;

ii. the fact, stated in the application, that the SSHD had refused his

applications to the SSHD for a replacement passport or a temporary

passport in order for him to attend in person;

iii. the earlier Respondent's review where the SSHD requested that the

matter proceed to an oral hearing so that the evidence can be tested by

means of cross examination, but which at the same time refused to

consider the Appellant's post-decision evidence;

iv. The importance of the post-decision evidence as expressed by the

Appellant in further submissions;

v. Difficulties already articulated by his advisors in taking instructions

remotely.

 

The Appellant's ASA of 26.10.22 identified that the Appellant was stranded in Iraq, that HMPO was refusing to provide him with travel documents, it requested that the Tribunal direct the SSHD to apply best endeavours to facilitate the Appellant's return to the UK so that he may inter alia attend his appeal.

7. Following the Resident Judge's decision, the Appellant sought to reopen that issue by way of CMRH 13th February 2023 that was refused'

 

4.       The original grounds of appeal upon which the appellant continued to rely advanced as follows:

 

Questions of fairness and of whether the FTT misapplied Begum [2021] UKSC 7 are hard-edged questions for an appellate court.

 

i Unfairness - substantive and procedural

The SSHD, and the Tribunal, unfairly denied the Appellant the opportunity to give in person oral evidence, and the FTT unfairly rejected the Appellant's witness evidence.

 

The Appellant is stranded in Iraq and was denied the opportunity to give oral evidence at his appeal. HMPO refused to issue him with either a passport or travel documents in order to return to the UK. The Tribunal refused him permission to give oral evidence via CVP. In circumstances where what is at stake is the Appellant's nationality only the highest levels of fairness would suffice. This hearing fell far short of that standard.

 

The FTT fails to address the question of procedural fairness, the single and passing reference at [41] erroneously fails to recognise that procedural unfairness is a public law error. It fails to address the failure of the SSHD to engage with or consider the new evidence.

 

In circumstances where the honesty of a person is in issue, and where he is being denied the opportunity to have his voice heard by the conduct of the SSHD, a party to the proceedings, and where there are no other overriding concerns, such as national security, then his statutory right of appeal and natural justice demanded that he be provided with an opportunity to fully answer that case, and in the case of dishonesty that likely requires oral evidence - see Ahsan [2017]EWCA Civ 2009 at [91]. The FTT erred by failing to recognise this and by failing to consider it.

 

The statutory right of appeal remains a fundamental part of the deprivation process. That encompasses the SSHD's conduct leading up to a hearing, and in this instance includes the SSHD's refusal to consider the post-decision evidence, notwithstanding ample opportunity to do so; it forms part of the question of fairness. The SSHD unfairly refused to engage with the new evidence.

 

In the circumstances it was not open to the Tribunal, without more, to reject the Appellant's witness statement, supported by compelling evidence, his identity documents including his passport and evidence from the Iraqi Embassy which confirmed that the Appellant was born in Makmour.

 

The conclusion at [32] that his evidence is confusing is not one that was put to him by the SSHD, or the FTT, the Appellant had simply no opportunity to address those criticisms. That was unfair.

 

ii Misapplication of Chimi (deprivation appeals; scope and evidence) Cameroon [2023] UKUT 115 (IAC)

The FTT fails to address, or do so properly, the cornerstone of the Appellant's case - that in fact he was from, and born in, Makmour, as shown by official Iraqi documentation properly issued, and that in reaching her decision the SSHD made a mistake of fact.

 

The post-decision evidence provided by the Appellant fell squarely within [56] of Chimi, it cannot be said that the SSHD's decision would inevitably have been the same without that error of fact.

 

The destruction of the Makmour registry office is undisputed, it was therefore necessary for the FTT to address the substance of the Appellant's claim that the Sulaymaniyah registry office incorrectly inferred that he was born there, and that the Baghdad central registry subsequently confirmed his proper place of birth as Makmour.

 

The SSHD was provided with the opportunity to consider that evidence through the Respondent's review and chose not to do so, that was unfair, in those circumstances it was incumbent upon the FTT to properly consider that evidence.

If the FTT is correct, then neither the primary or a reviewing body need consider material evidence, that is an abdication of the statutory duty of the Tribunal, and contrary to the obligation explained in Begum.

 

That unfairness was compounded by the SSHD's denial of the Appellant's request to attend the hearing in person and for the failure of the Tribunal to facilitate evidence by video link to provide the Appellant with the opportunity to attend and give oral evidence.

 

The underpinning procedural unfairness infected the whole decision-making process, and the FTT erred by not so recognising.

 

Additionally and alternatively, the FTT failed to give any adequate, or proper, reasons for rejecting, or not properly considering, the Appellant's post-decision evidence.

Additionally the reasoning of the FTTJ at [32] fails to show that he properly understood the Appellant's case that he was born in Makmour and was from there.

 

iii Discretion

When the SSHD made the decision to deprive she was fully aware that the Appellant was in Iraq and could not return to the UK without the SSHD's active assistance. That fact, and the likely consequence that he would not be able to give oral evidence at his hearing, was a material factor for the SSHD to consider in exercising her discretion. The failure to do so rendered her decision unlawful and the FTT's failure to recognise that was an error.'

 

5.       Permission to appeal was granted by UTJ Kamara on the following basis:

 

'2. This appeal concerns a decision to deprive the appellant of his British citizenship. That decision was taken when the appellant was outside the United Kingdom and without a travel document. He was, following a case management review hearing, refused permission to give evidence at the hearing but no directions were given for the respondent to use her best endeavours to permit the appellant to return to the United Kingdom in order to participate in his appeal. It is arguable that there has been procedural and substantive unfairness in the appellant being prevented from giving oral evidence at his appeal. It is of concern that findings were made on the evidence before the judge which the appellant was unable to address. It is also arguable that the post-decision evidence relied upon by the appellant was not properly considered in the respondent's review or by the judge. Lastly, that the appellant was out of the country at the time of the decision was not taken into consideration by the respondent in exercising her discretion and the First-tier Tribunal arguably fell into the same trap.'

 

Submissions and directions

 

6.       At the hearing before us on 29 ^th November 2024 Ms Rushforth submitted that there was no error of law, and she opposed the appeal. Mr Karnik essentially relied on his written submissions. The hearing before us was adjourned with directions to the respondent. It was also agreed by the parties that there was no objection to the Upper Tribunal listening to the recording of the proceedings in the First-tier Tribunal (FtT) (Manchester) on 21 ^st July 2023 before FtT Judge Austin in order to determine whether there was a material error of law.

 

7.       We directed that the Secretary of State should file and serve copies of any applications for a passport or travel document made by the appellant to the Secretary of State since 1st January 2020 and any decisions thereon no later than 3rd January 2025. We received submissions that although the appellant had made applications for travel documents a statement in the HMPO email of 11/12/24 was that his applications were withdrawn due to loss of contact and he did not pursue the application. We found this surprising bearing in mind his applications to attend the hearing to the Home Office but this would not preclude the appellant from making a further application for a travel document/emergency passport in order to attend the hearing or indeed alter the position on his substantive appeal save in relation to the procedural point of unfairness.

 

8.       We have listened to the FtT recording of the hearing in this matter (which was delayed in production) and considered the submissions made by the Secretary of State in response to our directions. Hence the delay in the promulgation of this decision.

 

Conclusions

 

9.       We find there was a material error of law in the FtT decision for the following reasons.

 

10.   Ground (i) In sum, the question of deception was central to the appeal and the appellant's awareness at the time and his explanation was relevant. His explanation via submissions was in part that the Iraqi documents were properly issued but contained a mistake of fact and his post decision evidence was issued by the Baghdad Registry went to this point. The judge recorded that the appellant's last written statement was on 7 ^th October 2022.

 

11.   The nub of the respondent's submissions at the FtT hearing centred on the contradiction and the consistency/inconsistencies within the appellant's statements and documents on the key issue, which is his place of birth in Iraq. Notwithstanding the outline explanation of the appellant of the mistake, the dispute over the documentation and said mistake of the translator, at no point was the appellant given the opportunity himself to answer the issues raised.

 

12.   The judge at the outset of the hearing stated the appellant was only in attendance 'to watch and listen'. The judge retained this position despite the history of the appeal and the clear criticism by the Home Office Presenting Officer effectively of the appellant's credibility on statements and documents at the hearing. At no point did the judge address his mind on the issue of unfairness to the appellant of the lack of opportunity to answer the respondent's points on the statements and documentation. We acknowledge that counsel did not overtly counter the judge's approach at the hearing itself, but this was understandable in view of the history recorded and Mr Karnik did submit that the appellant had had no opportunity to respond at all. Nevertheless, we find it was incumbent on the judge to be alive to the fairness of the proceedings throughout.

 

13.   Mr Karnik also raised the issue of the circumstances of the proceedings such that the appellant could not give evidence at the hearing because the Secretary of State had refused to issue him with a travel document and that more than a great deal of caution should be applied to the respondent's 'brand new' statements in relation to the appellant's statement and the appellant was not given the opportunity to respond to the new criticisms of his witness statement or the new issues raised by the Secretary of State contrary to Rule 24 of FtT rules. It was also submitted that the Secretary of State was fully aware of the offences of the appellant when naturalisation was granted. Further the appellant hailed from a conflicted area in Iraq, the Rashid issues were relevant and not addressed and the respondent's relevant policy at the time of the decision had not been provided.

 

14.   We conclude that the approach of the judge was a material error of law.

15.   Ground (ii) A mistake of fact, can constitute a public law error. Evidence to show a mistake of material fact, used at the time of the respondent's decision, may be relevant and, on this basis alone, it was open to the judge to consider material relating to the facts pertaining at the date of the decision. This would extend to the appellant's explanation. The judge did not but confined himself to evidence adduced before the Secretary of State prior to the decision.

 

16.   We consider that, in the circumstances, the assertion that Chimi (deprivation appeals; scope and evidence) was misapplied is sustainable. The judge materially erred from [25] onwards.

 

17.   We appreciate that Amjad Ali Chaudhry v SSHD [2025] EWCA Civ 16 was not available at the time of the FtT decision but this authority merely declares and sets out the proper approach to appeals under section 40A of the BNA 1981 from decisions of the Secretary of State made pursuant to section 40(3) of the BNA 1981 and see in particular paragraphs 46 to 48 and paragraph 58. In sum it is it is for the FtT to find, in the event of a dispute, as a fact whether there was fraud, false representation or concealment of a material fact for the purposes of section 40(3). As stated at paragraph 53 of Chaudhry

 

'... the tests proposed by the UT for the approach of the FTT hearing an appeal...in ... Chimi need to be reformulated in accordance with the test set out above. It means that an appellant will be able to adduce evidence (if so advised) on both the precedent facts of fraud, false representation and concealment of a material fact, and on matters relevant to section 6 of the 1998 Act. The evidence can be adduced and examined in one go, and it will be for the FTT to apply the relevant evidence to the separate legal tests. '

 

18.   Not only did the judge misapply Chimi but his approach ran counter to Chaudhry.

 

19.   Ground (iii) Owing to our findings on grounds (i) and (ii) we do not consider it necessary to consider ground (iii).

 

20.   We consider there was a procedural and material error of law in the approach to the appellant's ability to respond to the matters in question at the FtT hearing. The appellant should have been given the opportunity to answer the criticisms raised and the respondent should now consider her obligations under Gjini [2021] EWHC 1677 (Admin) in particular paragraphs 84 and 85 to enable the appellant the opportunity to give evidence at the oral hearing bearing in mind he cannot give evidence from Iraq.

 

Notice of Decision

 

21.   The Judge erred materially for the reasons identified. We set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the effect of the error has been to deprive the appellant before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal, the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and 7.2 (a) of the Presidential Practice Statement.

 

 

 

Helen Rimington

Judge of the Upper Tribunal Rimington

Immigration and Asylum Chamber