Noor Mohammed Walile v The Secretary of State for the Home Department

An applicant for British citizenship cannot rely on the privilege against self-incrimination to avoid disclosing a criminal offence committed after the application but before it is decided. The continuing duty to disclose material changes may therefore support deprivation for concealment of a material fact under the British Nationality Act 1981.

Begum [2021] UKSC 7 narrowed the merits jurisdiction in deprivation appeals, but did not remove the long-standing ability to challenge the Secretary of State’s decision on public law grounds. The mere fact that a foreign criminal has children does not justify anonymity where open justice requires disclosure.

The appellant applied for naturalisation in January 2010 and committed rape shortly afterwards, before his application was decided. He did not disclose the offence and was granted British citizenship. Following his conviction and imprisonment, the Secretary of State deprived him of citizenship under section 40(3) of the British Nationality Act 1981 for concealment of a material fact.

The First-tier Tribunal dismissed his appeal. Permission to appeal was granted on a proposed privilege against self-incrimination argument. That ground, together with other original grounds, was withdrawn. The appellant then sought to add a public law challenge, relying on Begum [2021] UKSC 7. The issues included whether the new ground should be admitted, whether non-disclosure could amount to concealment, and whether anonymity was justified by the appellant’s children.

1. The application to amend the grounds was refused. The appellant had been professionally represented before the First-tier Tribunal and could, and should, have advanced any public law challenge there. The proposed challenge was not a case of a Robinson obvious error.
2. The privilege against self-incrimination did not arise. It is directed to compulsion to provide self-incriminating evidence, particularly in legal proceedings. A person applying voluntarily for citizenship cannot invoke it to avoid the continuing obligation to disclose a criminal offence committed while the application remains under consideration. The conclusion was consistent with L v C [2001] EWCA Civ 1509.
3. The policy statement that post-application fraud would not generally lead to deprivation had to be read with its qualifications. The continuing disclosure obligation would otherwise be undermined. The gravity of raping a child supplied an overwhelming public interest in deprivation, notwithstanding that the offence post-dated the application.
4. Begum [2021] UKSC 7 explained that an appeal under section 40(2) or (3) is narrower than previously understood. It did not create public law grounds of appeal; those grounds had always been available, as shown by BA [2018] UKUT 85 (IAC).
5. The First-tier Tribunal had made no material error of law. The appellant’s appeal was dismissed. The anonymity order was revoked because the appellant’s children did not establish a sufficient reason to depart from the compelling public interest in open justice.

• Upper Tribunal (Immigration and Asylum Chamber): appeal against the First-tier Tribunal’s decision dismissed; anonymity order revoked.
• First-tier Tribunal: appeal against the Secretary of State’s deprivation decision dismissed on 20 March 2020. The decision is referred to in the judgment without a neutral citation.