Guri Ciceri v The Secretary of State for the Home Department

In an appeal under section 40A of the British Nationality Act 1981, the Tribunal must establish the statutory condition precedent for deprivation. Where Convention rights are engaged, it must independently decide whether deprivation breaches those rights, including by making its own proportionality assessment under Article 8.

Otherwise, the Secretary of State’s discretionary decision is reviewable only on public-law grounds. Delay may affect Article 8 proportionality, but time spent while the Secretary of State pursued a mistaken nullity analysis will not normally carry weight under the second and third delay considerations in EB (Kosovo) v Secretary of State for the Home Department [2009] AC 1159. The importance of protecting the integrity of nationality law normally gives substantial weight to the public interest where citizenship was obtained by fraud.

The appellant had obtained refugee status and British citizenship by using a false Kosovan identity, although he was Albanian. The Secretary of State initially issued a nullity decision in 2013. After the nullity principle was clarified, she made a decision on 6 September 2018 to deprive him of citizenship under section 40(3) of the British Nationality Act 1981.

First-tier Tribunal Judge Rai dismissed the appellant’s section 40A appeal on 18 July 2019. Following unsuccessful permission applications and judicial review of the Upper Tribunal’s refusal of permission, permission to appeal was granted. The appellant contended that the Secretary of State’s delay, including delay before the nullity decision, made deprivation disproportionate under Article 8.

The central issue was whether the First-tier Tribunal had erred in its treatment of delay and Article 8 proportionality.

1. Appeal dismissed. The First-tier Tribunal had made no error of law requiring its decision to be set aside.

2. The Tribunal reformulated the approach to section 40A appeals in light of R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7. It must first determine whether the condition precedent in section 40(2) or 40(3) of the British Nationality Act 1981 is established. In a fraud case, this includes whether citizenship was obtained by one of the means specified in section 40(3). The Tribunal may intervene where material factual findings lack evidential support or rest on a view of the evidence that could not reasonably be held.

3. Where Article 8 is engaged, the Tribunal must decide for itself whether deprivation is incompatible with section 6 of the Human Rights Act 1998. It must assess the reasonably foreseeable consequences and proportionality on the evidence before it. It will not usually conduct a prospective assessment of the likelihood of lawful removal. The public interest in protecting the integrity of British nationality law normally carries inherent substantial weight where citizenship was procured by fraud.

4. If deprivation does not breach Convention rights, the Tribunal may allow the appeal only on essentially public-law grounds, including irrationality, irrelevant considerations, failure to consider relevant matters, procedural impropriety, or non-compliance with section 40(4).

5. Delay can affect Article 8 proportionality in accordance with EB (Kosovo) v Secretary of State for the Home Department [2009] AC 1159. However, the First-tier Tribunal was entitled to find that this case differed materially from Laci v Secretary of State for the Home Department [2021] EWCA Civ 769. The appellant continued materially to obscure the true position until the 2008 alert to the respondent. Only about four years and five months then elapsed before the 2013 nullity decision. Time spent while the respondent pursued the mistaken nullity route did not materially reduce the public interest or increase the appellant’s Article 8 case.

• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeal against First-tier Tribunal Judge Rai’s decision, finding no material error of law.
• First-tier Tribunal: Judge Rai dismissed the appellant’s appeal on 18 July 2019 against deprivation under section 40(3) of the British Nationality Act 1981.
• Permission and judicial review: Permission to appeal was initially refused by both tribunals. The Upper Tribunal’s refusal was quashed in High Court judicial review proceedings, and the Vice President granted permission on 4 March 2021.