Laci v Secretary of State for the Home Department

The Court of Appeal allowed the appellant's appeal against the Upper Tribunal and restored the First-tier Tribunal's decision. The appeal concerned the Secretary of State's decision under section 40(3) of the British Nationality Act 1981 to deprive the appellant of naturalised British citizenship obtained by deception. The key legal principles were (i) the tribunal on an appeal under section 40A conducts a full reconsideration of whether the statutory condition precedent (here deception under section 40(3)) is established and then whether the Secretary of State's discretion should be exercised differently, and (ii) while loss of citizenship and any subsequent removal are distinct, relevant consequences of deprivation (for example a temporary "limbo period" of unsettled immigration status and any interference with Article 8 rights) must be taken into account in the proportionality/common law balancing exercise.

The court held that the Upper Tribunal had erred in law by misreading the First-tier Tribunal's reasoning (in particular by treating the FTT as having made a proleptic finding that removal was likely). On the facts, the FTT was entitled to attach significant weight to the Secretary of State's prolonged and unexplained inaction (nine years) and the practical consequences of a temporary loss of settled immigration status; in the exceptional combination of factors present the FTT's conclusion that deprivation would be disproportionate was open to it and was restored.

Background and parties: The appellant, naturalised in 2005, had originally obtained asylum-related benefits and naturalisation by false claims as to his place and date of birth and nationality. The Secretary of State issued notices culminating in a decision under section 40(3) of the British Nationality Act 1981 to deprive him of British citizenship on the ground that it was obtained by fraud. The appellant appealed to the First-tier Tribunal under section 40A; the FTT allowed his appeal. The Upper Tribunal allowed the Secretary of State's appeal. The appellant appealed to the Court of Appeal.

Nature of the claim / relief sought: Appeal under section 40A challenging the Secretary of State's decision to deprive the appellant of British citizenship under section 40(3) (fraud/false representation/concealment of material fact) and seeking restoration of the FTT outcome.

Issues framed:

• Whether the FTT erred in law in its assessment of Article 8 and the balancing of public interest against private/family life and other consequences of deprivation.
• Whether a tribunal considering deprivation should undertake any proleptic assessment of the likelihood of removal, and how to treat the effects of any period of "unsettled status" following deprivation.
• The legal significance, if any, of the Secretary of State's prolonged and unexplained delay/inaction in pursuing deprivation.

Court’s reasoning (concise):

• The Court accepted the settled propositions from the authorities (including Hysaj, Aziz and KV) that an appeal under section 40A is a full reconsideration: the tribunal must decide (a) whether the condition precedent in section 40(3) is satisfied (i.e. citizenship obtained by deception) and if so (b) whether the Secretary of State’s discretion ought to be exercised differently. Where Convention rights (Article 8) are engaged the tribunal must consider proportionality; where they are not the tribunal exercises its common law discretion, but in practice the balancing exercise overlaps.
• Aziz limits the requirement for tribunals to make proleptic assessments of the likelihood of removal; loss of citizenship and any future removal are different processes. Nonetheless, other foreseeable consequences of deprivation including statelessness or a period of "limbo"/unsettled status are relevant considerations in the proportionality/common law balancing.
• On the facts, the FTT had not relied on a finding that removal was likely; it relied on the practical consequences of a period of unsettled immigration status and the extraordinary, unexplained nine-year delay and inaction by the Home Office (including renewal of the appellant's passport) which had led the appellant reasonably to think the matter was finished. Those factors, cumulatively, could properly lead the FTT to conclude that deprivation would be disproportionate in this exceptional case.

Procedural posture: Appeal from the Upper Tribunal (Immigration & Asylum Chamber) which had allowed the Secretary of State's appeal. The Court of Appeal allowed the appellant's appeal and restored the FTT decision.

Wider comment: The court emphasised that deprivation for fraud will generally be an expected consequence, and the decision does not create general indulgence; the outcome turned on an exceptional factual combination, notably the prolonged unexplained delay and the limbo consequences.

This is an appellate judgment. The Court of Appeal allowed the appellant's appeal and restored the decision of the First-tier Tribunal. The Court held that the Upper Tribunal had erred in law by misreading the FTT's reasoning (treating it as having treated removal as a likely consequence) and that the FTT was entitled, on the exceptional facts of this case (notably the Secretary of State's prolonged unexplained inaction of nine years and the realistic adverse consequences of a temporary loss of immigration status), to conclude that deprivation would be disproportionate and that the Secretary of State's discretion should be exercised differently.

First-tier Tribunal allowed the appellant's appeal (promulgated 7 December 2018). Upper Tribunal (Immigration & Asylum Chamber, Lord Uist and UTJ Canavan) allowed the Secretary of State's appeal (19 March 2019). Court of Appeal allowed the appellant's appeal and restored the FTT (this judgment: [2021] EWCA Civ 769).