AB v The Secretary of State for the Home Department

In an appeal under section 40A of the British Nationality Act 1981, the Tribunal must assess the reasonably foreseeable consequences of deprivation of citizenship. It must not decide a future removal challenge in advance, but must assess whether such a challenge is likely to have force. A strong prospective claim makes removal less likely to be foreseeable.

Indefinite leave to remain is extinguished when its holder becomes a British citizen and does not automatically revive on deprivation. EU proportionality is relevant only where the facts disclose a cross-border element. The proportionality assessment must balance the foreseeable effects on private and family life against the strong public interest in withdrawing citizenship obtained by deception.

The appellant, a Nigerian-born naturalised British citizen, appealed against a decision to deprive her of citizenship obtained through deception. She had previously held indefinite leave to remain under a false identity. She relied on her long residence, relationships with her adult nephews, serious mental-health difficulties, and the possible effects of loss of immigration status, accommodation and benefits.

A First-tier Tribunal had dismissed the appeal in 2013. Its decision was set aside and remitted. A differently constituted First-tier Tribunal again dismissed the appeal in 2014, but the Upper Tribunal set that decision aside after finding that it had wrongly applied Part 5A of the Nationality, Immigration and Asylum Act 2002. The preserved factual findings were reconsidered when the Upper Tribunal remade the decision.

The central issues were the foreseeable consequences of deprivation, whether indefinite leave revived automatically, the relevance of EU citizenship, and whether deprivation was disproportionate under Article 8.

1. Appeal dismissed. The public interest in depriving the appellant of citizenship obtained by deception outweighed the foreseeable interference with her Article 8 rights.

2. Following Deliallisi (British citizen: deprivation appeal: scope) [2013] UKUT 00439 (IAC), a section 40A appeal requires an assessment of the reasonably foreseeable consequences of deprivation. The Tribunal could not pre-judge a future human-rights or protection challenge to removal. It was nevertheless required to assess, from its present vantage point, whether such a challenge was likely to have force. The appellant had a strongly arguable human-rights claim against removal. Her removal to Nigeria was therefore not a reasonably foreseeable consequence of deprivation.

3. The appellant’s former indefinite leave to remain did not automatically revive. British citizenship removes a person from the statutory system of immigration control and leave to remain. There was no statutory provision which preserved the leave during citizenship or revived it following deprivation. R (George) v Secretary of State for the Home Department [2014] UKSC 28 supported that conclusion.

4. EU proportionality had no role because this case contained no cross-border element. The contrary conclusion in Deliallisi had been reached per incuriam in light of G1 v Secretary of State for the Home Department [2012] EWCA Civ 867.

5. The evidence did not establish that deprivation would lead to a serious suicide attempt, loss of necessary mental-health care, removal, or prolonged immigration limbo. The respondent could reasonably be expected either to grant leave or to act consistently with the appellant’s Article 8 rights. Statutory mechanisms also existed for care and accommodation if she lacked leave. The delay did not diminish the public interest, since it resulted from the appellant pursuing the successive proceedings.

6. The appellant had committed serious drug offences, escaped from prison, assumed a false identity, and obtained citizenship through deception. Those matters made the public interest in deprivation exceptionally strong. There was no additional basis on which the Tribunal should re-exercise the respondent’s discretion differently.

• Upper Tribunal (Immigration and Asylum Chamber): Remade the decision after an earlier error-of-law ruling and dismissed the section 40A appeal.

• Upper Tribunal (Immigration and Asylum Chamber): In an error-of-law decision promulgated on 31 July 2015, set aside the 2014 First-tier Tribunal decision because it had incorrectly applied Part 5A of the Nationality, Immigration and Asylum Act 2002, while preserving its factual findings.

• First-tier Tribunal: On 2 October 2014, dismissed the appeal against deprivation of citizenship.

• Upper Tribunal: In March 2014, set aside the First-tier Tribunal’s 2013 dismissal and remitted the appeal for a fresh hearing.

• First-tier Tribunal: On 16 December 2013, dismissed the initial section 40A appeal.