BA v Secretary of State for the Home Department

An appeal under section 40A of the British Nationality Act 1981 is a full merits appeal. The Tribunal must determine for itself whether the statutory condition for deprivation is met, on all the evidence before it, and must then decide whether the Secretary of State’s discretion should be exercised differently.

In a section 40(3) case, fraud, false representation or concealment must have motivated the acquisition of citizenship. In a section 40(2) case, the Secretary of State’s assessment of the public good carries very significant weight. Deprivation will ordinarily stand unless its reasonably foreseeable consequences breach Convention rights or exceptional features justify a different exercise of discretion.

The appellant, a naturalised British citizen, appealed a decision to deprive him of citizenship under section 40(3) of the British Nationality Act 1981. The Secretary of State alleged that he had concealed his use of false identities and dishonest dealings with government departments when applying for naturalisation.

The First-tier Tribunal refused an adjournment and dismissed the appeal. It held that it need consider only whether the Secretary of State had information sufficient to be satisfied that citizenship had been obtained by deception. It also held that Article 8 was not engaged because no removal decision had been made.

The Upper Tribunal considered the scope of a deprivation appeal under section 40A, the role of the Secretary of State’s discretion, and the reasonably foreseeable consequences of deprivation.

1. The First-tier Tribunal’s decision was set aside for material error of law. It adopted an unduly restricted view of its appellate jurisdiction and wrongly excluded Article 8 from consideration merely because no removal decision had yet been made.

2. A section 40A appeal is a full merits appeal. The Tribunal must first determine whether the relevant statutory condition for deprivation exists. It must do so on the evidence before it, whether or not that evidence was before the Secretary of State. It must then consider afresh whether the discretion to deprive should be exercised differently, while giving appropriate weight to the Secretary of State’s decision and policy.

3. In a section 40(3) case, the Tribunal must determine whether fraud, false representation or concealment of a material fact was used to obtain naturalisation or registration. The deception must have motivated the acquisition of citizenship. In a section 40(2) case, the Secretary of State’s conclusion that deprivation is conducive to the public good will carry very significant weight and will almost invariably determine that preliminary issue.

4. The Tribunal must identify the reasonably foreseeable consequences of deprivation. Those consequences may include removal, although removal will often not be reasonably foreseeable where subsequent decisions and rights of challenge remain available. If deprivation would breach the United Kingdom’s obligations under the Human Rights Act 1998, including Article 8 rights, the appeal must be allowed. Apart from such a breach, only an exceptional or very compelling feature will ordinarily justify a different exercise of discretion.

5. The Upper Tribunal retained the appeal for re-making and gave directions after hearing evidence in private.

• Upper Tribunal (Immigration and Asylum Chamber): set aside the First-tier Tribunal’s decision for material error of law and retained the appeal for re-making.
• First-tier Tribunal: dismissed the appellant’s appeal under section 40A of the British Nationality Act 1981, having found that citizenship had been obtained by deception and that Article 8 was not engaged.