The Secretary of State for the Home Department v Artan Muslija

In an appeal against deprivation of British citizenship, the tribunal must determine for itself the reasonably foreseeable consequences of deprivation when assessing proportionality under Article 8(2) ECHR.

Judges should usually avoid a proleptic assessment of future immigration decisions, removal, or appeals. Such cases are likely to be rare and concern principally deprivation under section 40(2) intended to facilitate removal. The mere exposure to a potentially lengthy period of immigration limbo cannot, without more, outweigh the strong public interest in withdrawing fraudulently obtained citizenship. The assessment should generally not extend to prospective immigration decisions or later appeals.

The Secretary of State appealed against a First-tier Tribunal decision allowing Artan Muslija’s appeal against a decision to deprive him of British citizenship under section 40(3) of the British Nationality Act 1981. The First-tier Tribunal found that deprivation would be disproportionate, relying substantially on the anticipated period during which Mr Muslija might be unable to work and on the likely outcome of future immigration proceedings.

The Upper Tribunal first set aside that decision for error of law. It then reheard the appeal, considering whether the statutory condition precedent was met, the reasonably foreseeable consequences of deprivation, Article 8 proportionality, delay, the best interests of Mr Muslija’s child, and the Secretary of State’s exercise of discretion.

1. Appeal allowed; decision remade. The First-tier Tribunal had erred by conducting a proleptic analysis of future immigration decisions, removal and any subsequent appeal. Its decision was set aside with no findings preserved.
2. The tribunal must determine for itself the reasonably foreseeable consequences of deprivation when assessing proportionality under Article 8. It should not seek to establish future events with certainty. The evidence and circumstances at the deprivation stage are likely to differ from those available when a later immigration or human rights decision is made.
3. The assessment may include immediate consequences, including loss of the right to work and financial hardship. It should generally not extend to predicting how the Secretary of State will decide a future application, whether removal or deportation will occur, or how a later appeal will be resolved. A limited exception may arise where deprivation under section 40(2) is solely intended to facilitate removal and there is a very clear case that removal will not occur.
4. The mere existence or length of a limbo period cannot, without more, outweigh the substantial public interest in maintaining the integrity of the system for granting British citizenship. The tribunal must give substantial weight to the public interest in depriving citizenship obtained through fraud or deception.
5. The condition precedent in section 40(3) was satisfied. Mr Muslija’s false identity and asylum claim materially led to his acquisition of indefinite leave to remain and citizenship, and his failure to disclose that deception concealed a material fact relevant to the good-character requirement.
6. The reasonably foreseeable consequences included loss of the ability to work in the business personally and potential financial hardship, but not destitution. The consequences engaged private life rights but did not prevent the family from continuing their family life together. The child’s best interests favoured retaining the status quo only marginally.
7. The delay resulted principally from the Secretary of State’s previously mistaken understanding of the law concerning nullity and was not culpable delay. No legitimate expectation arose from the former 14-year policy. The deprivation decision was proportionate under Article 8 and did not involve a public law error. The appeal was dismissed and no fee award was made.

• Upper Tribunal (Immigration and Asylum Chamber): the First-tier Tribunal decision was set aside for error of law and the decision was remade. The appeal against deprivation of citizenship was dismissed.
• First-tier Tribunal: Judge Brannan had allowed the appeal against the Secretary of State’s deprivation decision. The decision was found to involve an error of law.