The Secretary of State for the Home Department v Abdul Waheed Pirzada

Section 40 of the British Nationality Act 1981 creates separate deprivation powers. Under section 40(2), the Secretary of State must be satisfied that deprivation is conducive to the public good. Under section 40(3), registration or naturalisation must have been obtained through fraud, false representation or concealment of a material fact.

For section 40(3), the relevant deception must have operated in obtaining citizenship and must therefore pre-date its grant. General bad character or later misconduct cannot establish that ground. A deprivation decision must identify a lawful basis actually relied on by the Secretary of State; the Tribunal cannot substitute its own assessment or exercise her discretion. Appeals under section 40 are not confined by section 84 of the 2002 Act, but remain directed to whether the decision was empowered by section 40.

The Secretary of State appealed against the First-tier Tribunal's decision allowing Mr Pirzada's appeal against a decision of 8 October 2015 to deprive him of British citizenship.

Mr Pirzada had been naturalised in 2008. He later pleaded guilty to fraud offences arising from employment in medical settings while not qualified to practise as a doctor. An earlier deprivation decision had been allowed as not in accordance with the law because it confused the statutory basis for deprivation.

The new decision purported to proceed under section 40(3) of the British Nationality Act 1981. The central issue was whether the decision identified fraud, false representation or concealment of a material fact which had obtained Mr Pirzada's naturalisation.

1. Appeal dismissed. The First-tier Tribunal was correct to hold that the Secretary of State's decision was not lawfully empowered by section 40(3) of the British Nationality Act 1981.

2. Section 40(2) and section 40(3) confer separate powers. Section 40(2) concerns whether deprivation is conducive to the public good. Section 40(3) concerns whether citizenship was obtained by fraud, false representation or concealment of a material fact. Deception for section 40(3) must have motivated the grant of naturalisation and must pre-date it.

3. The decision letter expressly proceeded under section 40(3). Its emphasis on the risks arising from the respondent's unqualified medical work and his general bad character could potentially be relevant to section 40(2), but could not establish that his naturalisation had been obtained by a deception within section 40(3).

4. The letter did not identify an alleged deception that had operated in the grant of citizenship. In particular, it did not establish that the respondent had a duty, without a specific question, to disclose suspected but undetected criminal conduct. The First-tier Tribunal's conclusion was therefore unassailable.

5. The complete naturalisation form, produced only before the Upper Tribunal, contained a question asking about other activities relevant to good character. The respondent's negative answer was a false representation and could have justified action under section 40(3). It was not, however, a matter relied on in the impugned decision. The statutory discretion belonged to the Secretary of State and could not be exercised by the Tribunal.

6. Section 84 of the Nationality, Immigration and Asylum Act 2002 does not restrict an appeal under section 40. Any proper ground may be advanced, but it must challenge whether the Secretary of State's decision was in fact authorised by section 40.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the Secretary of State's appeal and upheld the First-tier Tribunal's conclusion that the deprivation decision was not lawfully made under section 40(3) of the British Nationality Act 1981.
• First-tier Tribunal: Judge R R Hopkins allowed Mr Pirzada's appeal against the 8 October 2015 deprivation decision.
• First-tier Tribunal: Judge C Andrew had allowed the appeal against the earlier 3 April 2014 deprivation decision, to the extent that it was not in accordance with the law.