Secretary of State for the Home Department v Altin Arusha

An appeal under section 40A of the British Nationality Act 1981 is a full appeal, rather than a review. The Tribunal determines whether the evidence establishes fraud in obtaining citizenship and, if so, whether discretionary deprivation is appropriate. The Secretary of State bears the burden of proving fraud on the balance of probabilities.

A delay in preparing or promulgating a determination does not itself establish an error of law. The appellant must show a nexus between the delay and the safety, and therefore lawfulness, of the decision.

Procedural fairness does not ordinarily require the Tribunal to put every possible concern to a represented witness. Whether an unput point makes proceedings unfair depends on the circumstances.

The Secretary of State appealed against a First-tier Tribunal decision allowing Altin Arusha's appeal against proposed deprivation of British citizenship. The Secretary of State alleged that he had obtained citizenship by fraud because he was Albanian rather than Kosovan.

Ugeza Demushi separately appealed against the dismissal of her appeal from the refusal of entry clearance as Mr Arusha's fiancée. She contended that the First-tier Tribunal had acted unfairly and that the long delay between hearing and promulgation made its credibility findings unsafe.

The Upper Tribunal considered whether the First-tier Tribunal had erred in assessing the nationality evidence, the alleged procedural unfairness, and the legal effect of delay.

1. Both appeals were dismissed. The First-tier Tribunal had not made an error of law, and its decisions stood.

2. The Upper Tribunal recorded, without challenge by either party, the First-tier Tribunal's rulings on an appeal under section 40A of the British Nationality Act 1981. It is a full appeal, not a review. The Tribunal determines on all relevant evidence whether citizenship was obtained by fraud and then whether the circumstances justify discretionary deprivation. The Secretary of State bears the burden of proving conduct within section 40, on the balance of probabilities. Human-rights arguments may address the consequences of deprivation itself, but cannot be framed as a challenge to a hypothetical removal decision.

3. On the citizenship appeal, the First-tier Tribunal had been entitled to identify limitations in the Embassy, Kosovan and Albanian material. It had considered the evidence in the round, not compartmentally. Its finding that the Secretary of State had not proved fraud was rationally open to it, notwithstanding its adverse view of Mr Arusha's credibility concerning his Kosovan documents.

4. On the entry-clearance appeal, there was no general obligation to put every matter of concern to a witness represented by competent counsel. Fairness depended on the particular circumstances. The First-tier Tribunal was entitled to assess the telephone, travel, card and photograph evidence without pursuing the additional points now advanced.

5. Following Secretary of State v RK (Algeria) [2007] EWCA Civ 868, delay establishes an error of law only where it renders the determination unsafe. A nexus must be shown between the delay and the alleged unsafety. Despite the regrettable delay, the extensive records of proceedings, documentary evidence and reasons showed no such nexus.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the Secretary of State's appeal and Ms Demushi's appeal, holding that the First-tier Tribunal had not erred in law.
• First-tier Tribunal: allowed Mr Arusha's appeal against deprivation of citizenship and dismissed Ms Demushi's appeal against refusal of entry clearance. Its determination was promulgated on 25 March 2011.