Pajtim Berdica v The Secretary of State for the Home Department

In a deprivation appeal under British Nationality Act 1981 section 40(3), the Tribunal must consider both whether the original decision was sustainable on the material then available and whether, in light of later evidence, the Secretary of State could still rationally maintain it at the appeal hearing. The latter inquiry requires the appellant to show that the Secretary of State could not now take the same view.

Delay in promulgating a tribunal decision does not itself establish an error of law. The party relying on delay must show a nexus between the delay and an unsafe decision. Decisions of the Upper Tribunal bind the First-tier Tribunal as precedent, as well as binding it in the particular case under section 12 of the 2007 Act.

The appellant, an Albanian national, had obtained refugee status, settlement and British citizenship after representing himself as a Kosovan unaccompanied minor. Following the withdrawal of an earlier nullity decision, the Secretary of State gave notice on 23 December 2019 of a decision to deprive him of citizenship under British Nationality Act 1981 section 40(3).

The First-tier Tribunal dismissed his appeal. It held that the Secretary of State's finding of fraud was rational both on the original material and, alternatively, in light of further evidence. It also rejected the Article 8 challenge. The appellant appealed on grounds including perversity, delay in promulgation, the public interest, and the First-tier Tribunal's reliance on Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238.

1. Appeal dismissed. The First-tier Tribunal made no material error of law.

2. The appellant's age and claimed nationality had at least a significant bearing on the grant of refugee status and leave to remain. It was rational for the Secretary of State to reject his account that he innocently used a false identity. His reliance on Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 was misplaced because the Secretary of State had given detailed, rational reasons for disbelieving his explanation.

3. The First-tier Tribunal had conducted two alternative assessments: a public-law review of the original decision, and an assessment of whether the Secretary of State could rationally maintain that decision after considering the evidence adduced on appeal. The additional evidence did not undermine the fraud finding to the necessary extent. The appellant therefore failed on either approach.

4. The five-month period between the hearing and promulgation did not render the decision unsafe. Under the guidance in RK (Algeria) v Secretary of State for the Home Department and R (SS) v Secretary of State for the Home Department, a party alleging delay must establish a connection between the delay and an unsafe judgment. The challenge was speculative and rested on a misreading of the First-tier Tribunal's alternative reasoning.

5. The respondent's earlier nullity decision did not create a legitimate expectation that the appellant would benefit from a discretionary historical policy concerning long residence. Nor did it create substantive unfairness. The First-tier Tribunal was entitled to give limited weight in the Article 8 assessment to uncertainty and temporary loss of work or support flowing from deprivation obtained through dishonesty.

6. The First-tier Tribunal was entitled to treat Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238 as binding. Upper Tribunal decisions bind the First-tier Tribunal as precedent, independently of their binding effect in an individual case under Tribunal, Courts and Enforcement Act 2007 section 12.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the First-tier Tribunal's dismissal of the deprivation appeal.

• First-tier Tribunal: Judge Welsh dismissed the appeal in a decision sent to the parties on 26 October 2021.